1810335 (Refugee)

1810335 (Refugee) [2018] AATA 3927 (4 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810335
COUNTRY OF REFERENCE:                  Iran
MEMBER:Nicole Burns
DATE:4 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 04 October 2018 at 5:26pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Iran – bogus documentation submitted to the department – use of fraudulent papers to travel overseas – evidence of Iranian citizenship – credibility issues – department records inconsistent with applicant’s travel claims – applicant’s claims contradict country information – criminal history and ongoing criminal matters in Australia – returnee and failed asylum seeker from the west – no evidence of an adverse profile – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107,109, 140, 424A, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v MIMIA [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 the applicant provided incorrect answers with his Protection visa application. 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 via video link [on] 25 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 16 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. The applicant did not respond to the NOICC and told the Tribunal that he never received it, having moved address.
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 (visa applications to be correct) 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 his Protection visa application, lodged on 29 March 2010, as set out in the NOICC, as follows.
Specifically, in the applicant’s interview with a Departmental officer on 30 September 2009, his statutory declaration in support of the refugee status assessment (RSA) dated 3 October 2009, and in response to questions in his Protection visa application dated 29 March 2010 the applicant made a number of claims. These included that he was a stateless Faili Kurd; after the 2009 presidential elections he participated in demonstrations; the Basij looked for him and bothered him at his workplace; and he left Iran on a false Iranian passport with assistance from a smuggler. The applicant’s Protection visa was granted on 30 March 2010 on the basis of his claims submitted at interview, in his statutory declaration and Protection visa application.
However subsequently (as also set out in the NOICC), in the course of assessing the applicant’s application for Australian citizenship made in April 2014, the Department discovered that the applicant had returned to Iran in 2013, which cast doubts on his claims to fear persecution in Iran from the authorities as a stateless Faili Kurd. In the course of interviewing the applicant at the time with respect to his alleged statelessness, return to Iran in 2013 and initial departure from Iran in 2009, the delegate found a number of inconsistencies in the applicant’s evidence as well as claims that were not supported by country information and advice from relevant officials at the Australian Embassy in Iran (among others) about entry and exit procedures for Iran, for example. As set out in the NOICC and summarised below, these included as follows:
a.With respect to his return trip to Iran in 2013, at his interview with a Departmental officer on 30 July 2014 regarding his application for (Australian) citizenship, the applicant said he spent five days in [Country 1] and 30 in Iran however in his citizenship application (dated 2 April 2014) he said he spent 53 days in Tehran, Iran. As well, the applicant’s Australian issued titre de voyage (TDV) contains no entry or departure stamps for [Country 1].
1. In an interview with the Department’s identity assessment team on 20 November 2014, the applicant said he travelled to Iran using a false Iraqi passport which he destroyed in [Country 1] on return to Australia. He said Iraqi passport holders are not required to hold visas to enter Iran. However officials at the Australian Embassy in Iran advised that whilst an Iranian citizen does not require a visa to enter Iran, Iraqi passport holders do. The advice was also that a visa is required for non-Iranians to enter Iran; when an Iranian citizen returns to Iran on a non-Iranian passport (including a TDV) the document is confiscated at the airport and returned to the Australian Embassy, unstamped; the person is then instructed to obtain an Iranian passport; and that movement record processes are kept at a high standard by the Iranian authorities, including scanning of passports and photographs taken of passport holders.
Accordingly, as set out in the NOICC, the fact that the applicant did not have a visa for his return travel to Iran in 2013, yet was able to retain his TDV, indicated to the delegate that he did not use the TDV to travel to Iran and the delegate considered he had obtained an Iranian passport prior to travelling to Iran in 2013.
It was also noted in the NOICC that advice the Department had received about transiting [Country 1] to a third country was inconsistent with the applicant’s claim that he entered Iran on a false Iraqi passport without a visa. Specifically, information provided by the Australian Consulate-General in [Country 1] that a visa to enter Iran would have been required on the false Iraqi passport the applicant claimed allowed him to transit [Country 1]. Considering the country information/advice which did not support the applicant’s explanation about his method of entry to Iran, the delegate considered that the applicant had entered Iran in 2013 using a genuinely issued Iranian passport.
It was also stated in the NOICC that the applicant’s return to Iran in 2013 without issue or impediment is inconsistent with someone who genuinely faces a fear of serious harm in Iran.
The NOICC also stated that the applicant’s claim that he departed Iran in 2009 as a [age] year old using a false Iranian passport is not supported by information received from Australian Embassy officials in Tehran (and relevant country information) that:
1. The processes at the Iranian border are secure.
2. In order to obtain an Iranian passport a person is required to:
1. Security checks are undertaken at the passport application stage.
2. It is highly unlikely fraudulent Iranian passports will pass through Tehran airports because of the stringent checks.
3. Iranian passports are electronically verified with the information held by the Iranian authorities on departure from Iran.
4. Additional consent is required from a court or family members for minors to be allowed to depart the country.
As set out in the NOICC, on the basis of such information about the secure entry and exit processes at the Iranian border that was inconsistent with the applicant’s claims that he departed Iran in 2009 on a false Iranian passport, the delegate considered the applicant departed Iran in 2009 using a genuinely issued Iranian travel document or passport.
Therefore, it was stated in the NOICC that the information the applicant provided in these forms and at interview was incorrect: specifically in relation to being a stateless person of Faili Kurd ethnicity in fear of persecution from the Iranian authorities because of that status.
The Tribunal notes that the information from the NOICC referred to in the preceding paragraphs – [11 to 18] – was also contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review.
The Tribunal discussed the relevant contents of the NOICC with the applicant at the hearing. When asked if he agreed there was non-compliance as set out in the NOICC the applicant said ‘no’: he said he has not lied to anyone and not given incorrect information. He said when he first came to Australia he came with an ‘illegal’ (Iranian) passport and when he returned to Iran in 2013 he did so with another ‘illegal’ (Iraqi) passport. In 2013 he left Australia on his TDV to [Country 1] and after that used a false Iraqi passport to enter Iran. When asked if he had to obtain a visa to enter Iran at that time, the applicant said the (false Iraqi) passport ‘they’ arranged for him had everything in it. He assumes it contained an Iranian visa because he had no problems entering Iran. The applicant said he used the false Iraqi passport to depart Iran in 2013 and then destroyed it: that is he tore it to pieces and flushed it down the toilet – either on the plane or at the airport in [Country 1]. He said he did not want to enter Iran on his Australian-issued TDV because he has a problem with the Basij as a result of having participated in demonstrations in Iran in the past. He went to Iran in 2013 because his mother was ill. He stayed for around 50 days in Tehran and Qom with distant relatives.
The Tribunal has considered the information contained in the NOICC and the applicant’s oral evidence to the Tribunal and other relevant evidence before it to assess whether the grounds for cancelling the visa are made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[1]
[1] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.
The applicant states in his Protection visa application and his oral evidence to the Tribunal that he is stateless and although born in Iran, is not an Iranian citizen. He claims he left Iran in 2009 on a false Iranian passport, and returned to Iran in 2013 on a false Iraqi passport, which is why – he submits – his TDV did not contain entry and exit stamps when he returned to Iran in 2013. As such, he contends that he did not provide incorrect answers at the visa application stage. However for a number of reasons the delegate did not accept that was the case. The Tribunal has considered these reasons below, as well as discussed additional information before the Tribunal which casts doubts on the applicant’s claims to be (and have been) stateless.
As mentioned, the delegate based the NOICC in part on concerns about the return of the applicant to Iran in 2013, after his Protection visa was granted. Whilst this ground by itself is not strong, it raises at the very least a question about whether the applicant’s claim for protection in 2010 was warranted. As well, it raises questions about the applicant’s fears and claimed adverse profile in Iran. At the Tribunal hearing the applicant said he returned to Iran at that time because his mother was unwell and he has provided medical evidence to substantiate his claims in this respect. The Tribunal accepts the reason he returned to Iran was because his mother was unwell however this does not remove the concern about his fears and claimed adverse profile at the time. The applicant said he did not experience any problems during his time back in Iran and spent most of it in Tehran and Qom with relatives.
The applicant does not dispute that he returned to Iran in 2013 after his Protection visa was granted. However this does not necessarily mean his claims at the protection visa application stage to be stateless are untrue, given he stayed for only around 50 days and his claims largely relate to difficulties living there as a stateless Faili Kurd over a period of time. The fact that the authorities did not harm the applicant during this period when he returned to Iran is not evidence that he lied about his fears of persecution or the incidents that he said had happened when he made his application for protection. For these reasons, the Tribunal is not satisfied the applicant’s return to Iran for 50 days in 2013 meant he did not hold a well-founded fear of persecution as a stateless Faili Kurd at the time of his visa application. Accordingly the Tribunal finds this ground for cancellation is not made out.
The delegate was of the view the applicant returned to Iran in 2013 using an Iranian passport. He reached this conclusion because the applicant’s explanation of how he returned to Iran in 2013 was inconsistent with his previous claims to other Departmental officers (with respect to his application for citizenship and related identity interview for example) in some respects as well as country information and advice from embassy officials as to the required processes. Specifically the applicant’s claims to have left Australia on an Australian issued TDV to [Country 1] and from [Country 1] to Iran using a false Iraqi passport yet did not obtain an Iranian visa to enter Iran is inconsistent with country information that Iranian visas are required for Iraqi passport holders, including if staying for over 15 days, as well as to show [Country 1] authorities for transit purposes. At the Tribunal hearing the applicant stated that he thought the (Iranian) visa was contained in the Iraqi passport he held to enter Iran in 2013: however this is inconsistent with what he told the Department at interview on 20 November 2014 that he did not apply for an Iranian visa nor have an Iranian visa with the (Iraqi) passport, claiming it was not required because Iraq and Iran are neighbours. The applicant was invited to respond to this inconsistency in a letter the Tribunal sent to him after the hearing pursuant to s.424A of the Act, however he did not respond. The Tribunal notes the s.424A letter was sent to the applicant’s representative on 30 August 2018 who then advised[2] that they were no longer acting for the applicant. However as the applicant did not advise the Tribunal of any change to his authorised recipient, despite the Tribunal asking him to,[3] the Tribunal is satisfied the applicant’s representative remained his authorised recipient and the applicant was correctly notified of the s.424A letter. The s.424A letter was also sent to the applicant in detention on 30 August 2018 and on 31 August 2018 the Tribunal received an email from the Department indicating that they had hand delivered the letter to the applicant.
[2] In an email to the Tribunal dated 2 July 2018.
[3] In an ‘acknowledgment of authorised recipient withdrawal’ letter sent to the applicant at [a] Detention Centre via email on 3 July 2018.
Another concern the Tribunal has with the applicant’s evidence in this regard relates to his explanation about what he did with the false Iraqi passport after leaving Iran in 2013. His oral evidence to the Tribunal in this respect was vague: he claims he destroyed the Iraqi passport by tearing it into pieces and putting it down the toilet, but was unsure if he did so on the plane or at the airport in [Country 1]. The Tribunal would expect the applicant to remember where he tore up a passport and disposed of it.
As well, the applicant said at hearing the reason he obtained an Iraqi passport at the time was because he would be afraid he would be killed by the Iranian authorities if he went back on his own name because of his participation in anti-government demonstrations in Iran in 2009. However his oral evidence was very vague and general in this respect. For example he did not know if the demonstrations took place before or after the elections or who was in government at the time.
Given the combination of these concerns the Tribunal is not satisfied the applicant returned to Iran in 2013 on a false Iraqi passport as claimed and considers he returned on an Iranian passport, particularly when taking into account other matters, discussed below.
As mentioned, the delegate was also of the view that the applicant left Iran initially in 2009 on an Iranian passport, not a false Iranian passport as claimed, given country information and advice about the secure entry and exit procedures for example. At the Tribunal hearing the applicant said he left Iran in 2009 on a false Iranian passport – although added he was not even sure if it was Iranian – through the airport in Tehran, after paying a smuggler.

As set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review, the advice from the Embassy in Tehran is that the processes at the Iranian border are secure; in order to obtain an Iranian passport a person needs to visit the Police Plus 10 in person where identity checks are undertaken with a persons’ documentation and fingerprints; they also must produce an Iranian birth certificate and national identity card which are only issued to Iranian citizens; and there are also security checks undertaken at the passport application stage. As well, country information indicates that it is highly unlikely that fraudulent Iranian passports will pass through Tehran airport because of stringent security checks. Country information also advises that on departure from Iran, Iranian passports are electronically verified against the information held by the Iranian authorities.
This indicates to the Tribunal that although bribery does occur and is possible, departure through the Khomeini International Airport using bribery is rare and exiting the airport using a forged passport would be difficult. At hearing the applicant disputed this, stating that he paid a smuggler to organise his fake passport and departure from Iran at the time. The country information as set out in the NOICC and decision record (and discussed at hearing) indicates that whilst it may be possible to leave through the airport illegally, it would require bribing a lot of airport personnel. It indicates that when a passenger enters and exits Khomeini Airport, the passport and personal information is checked on a computer screen which contains the data of the passport holder.
Given such country information, combined with other concerns with the applicant’s case as discussed, the Tribunal is not satisfied the applicant departed Iran in 2009 on a false Iranian passport as claimed and considers he departed on his own Iranian passport, particularly when taking into account other matters, discussed above and below.
The Tribunal notes in this case there is information contained on the Departmental file provided by a third party in the form of the applicant’s religious marriage certificate (dated [September] 2014, issued by [a religious community centre], [State 1, Australia]) and untranslated Iranian birth certificate the existence of which strongly suggest he is an Iranian citizen and not stateless as claimed. These documents were not referred to at all in the NOICC. Nonetheless, whilst the Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice,[4] it is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[5]
[4] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).
[5] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015) at [10]-[16].
As set out in an s.424A letter[6] to the applicant inviting his comments on its existence (among other things), the religious marriage certificate records the applicant’s name[7] and date of birth[8] (which differs in some respects to what he has told the Department and Tribunal); his place of birth as ‘Tehran, Iran’; and his nationality as ‘Iranian’. Furthermore, a citizenship or passport number[9] is listed and the place of issue recorded as the ‘Iranian Embassy Canberra, Aus’. Also as set out in the same s.424A letter to the applicant, the Department file contains an untranslated copy of a document that is allegedly the applicant’s Iranian birth certificate. The Tribunal had the document translated from Farsi (Persian) to English. The translated document titled ‘Birth/Identity Certificate’ indicates that it was issued by the Islamic Republic of Iran, Ministry of Interior, State Organisation for Registration of Civil Status in Tehran on ‘[date]’. Furthermore, the (particulars of the) holder identified on the certificate is as follows: ‘[Applicant’s Alias 1]’; date of birth is ‘[date]’; and place of birth is ‘Tehran’. A Birth/Identity Certificate number is provided as well as a serial number and a photograph of the applicant is attached to the untranslated document.
[6] Dated 31 August 2018.
[7] ‘[Applicant’s Alias 1]’.
[8] ‘[Date of birth]’.
[9] ‘[Passport number deleted]’.
The applicant did not respond to the Tribunal’s letter inviting his comments on the existence of these two documents, which raises serious doubts as to the applicant’s claimed statelessness status. For reasons above the Tribunal is satisfied the applicant was correctly notified of the letter. The Tribunal places particular weight on the information contained in the religious marriage certificate that the applicant’s nationality is Iranian and the fact a citizenship or passport number has been provided in that certificate, issued by the Iranian Embassy in Canberra. This indicates to the Tribunal that the applicant was issued with a genuine Iranian passport by the Iranian Embassy in Canberra since he has been in Australia.
As well, according to information on the Departmental file, Departmental officers concluded that the applicant was not stateless and likely to be a citizen of Iran following an identity assessment in February 2015 based in large part on the following considerations:
a.The applicant stated during an identity interview (on 20 November 2014) that his mother and sister obtained a ‘green card’ for themselves and his mother obtained a ‘green card’ for him after he left for Australia (in 2009). The applicant said he did not know anything about a white card or the term ‘Amayesh’ however after the interview on 24 November 2014 he advised the Department that the card is white and that he used the term ‘green card’ as an expression. He submitted the white card (allegedly that identifies him as a stateless Faili Kurd) to the Department on 12 January 2015. However a senior identity officer advised that the card submitted (which is blue in colour) was not a white card and appears to be a card for membership of a sort of Faili Kurd club in Iraq. A document examiner at the Australian Embassy, Amman, Jordan assessed that the card was not official, not recognised by the authorities as evidence of identity, and has no security features to verify. A translation of the card from Arabic (on the front) to English also revealed the applicant’s date of birth as ‘[a different year]’ and Baghdad as his place of birth, which differs to what he had told the Department.
b.The applicant did not provide a copy of the white identity card he claimed was issued to him by the Iranian authorities.
c.The applicant provided inconsistent information to the Department about his travel from Australia to Iran in 2013. That is, when first questioned by a citizenship officer on 30 July 2014 he said that he spent five days in [Country 1] and 30 days in Iran and had no explanation for the fact that there were no stamps or visas on his Australian issued travel document: a TDV. On his outgoing and incoming passenger cards the applicant only recorded travel to and from [Country 1] for the 53 days of his absence. As well, in his citizenship application (signed on 2 April 2014) he states that he spent 53 days in Iran/Tehran.
As a result of these identity-related concerns, among others, the applicant’s application for Australian citizenship by conferral was refused on 15 September 2016. The applicant did not respond to the Tribunal’s (s.424A) letter setting out these concerns. For reasons above the Tribunal is satisfied the applicant was correctly notified of the letter.
The combination of these concerns causes the Tribunal to be satisfied that the applicant is an Iranian citizen, not stateless as claimed.
At hearing the applicant was emphatic that he is stateless and does not hold an Iranian passport or any Iranian documents, despite being born in Iran. He also claimed his parents were Kurdish, born in Iraq who was expelled to Iran in the early eighties. However, noting country information,[10] discussed at hearing, that estimates prior to 2003 Iran granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin who could prove their Iranian origin, the fact that their parents may have entered Iran as Faili Kurd refugees from Iraq in the past does not establish that they are not Iranian citizens, or that the applicant is not an Iranian citizen.
[10] DFAT Country Information Report Iran, 21 April 2016 at 2.15.
The Tribunal concludes that the applicant was an Iranian citizen at the time he made his application for protection in 2010 and was not stateless as claimed. He did not answer a number of questions correctly because the Tribunal is satisfied that he was an Iranian citizen and not stateless as claimed.
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. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In considering the exercise of the discretion, the Tribunal has taken into account the applicant’s oral evidence to the Tribunal. It has also had regard to other matters of government policy, set out below.
The correct information
The correct information in this case was that the applicant was an Iranian citizen, not stateless. The applicant’s case for his protection visa was based on his claim that he was owed protection in large part because he was a stateless Faili Kurd. For reasons above the Tribunal has found he was an Iranian citizen. The Tribunal has given this significant weight towards supporting the cancellation of the applicant’s visa.
The content of the genuine document (if any)
This prescribed circumstance is not relevant in this case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal finds the decision to grant the protection visa was based partly on the incorrect information provided with the visa application that the applicant was stateless (and a Faili Kurd) and faced persecution from the authorities as a result. Had the applicant indicated that he was not stateless, it may have been concluded that he did not meet the criteria for the grant of the visa.
The applicant maintains that he was stateless at the time of the visa application and therefore the information was not incorrect. However for reasons set out above the Tribunal does not accept his evidence in this regard.
The Tribunal gives some weight to this factor in supporting the cancellation of his visa.
The present circumstances of the visa holder
The present circumstances of the applicant are that he has been resident in Australia for almost eight years, primarily in [Australian city 1]. He told the Tribunal he has worked in various jobs here: including working for [an organisation] being a [occupation deleted], and having owned and operated a [shop] in [Australian city 1]. He was detained as a result of the visa cancellation and was in detention at the time of the Tribunal hearing. On 6 September 2018 the Tribunal was advised by the Department that the applicant was in remand [in] prison following his appearance at court on criminal matters the day prior.
According to his oral evidence to the Tribunal the applicant was married to a [Country 2] woman (of Iranian origin) however they have since separated: he alleges after she obtained her Australian visa she got a restraining order and left him. He has not seen her since and does not know where she is. Before they separated she told him she was pregnant and according to her updates on Facebook, she gave birth in [Country 2] and subsequently returned to Australia with her child. The applicant said he thinks the child is his, although noted he has not ‘done’ a DNA test.
The Tribunal has given these factors some weight as a reason not to cancel his visa, particularly given his evidence that he thinks he has a child who resides in Australia, even if he currently has no contact with the child.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has consistently stated that he is a stateless. He did not respond to the NOICC however at hearing he said he had moved address and the Tribunal does not draw an adverse inference from this fact, given his permanent visa had been granted many years prior and there was no reason to keep in touch with the Department. However it is of some concern that the applicant has not responded to the Tribunal’s s.424A letter, which the Tribunal indicated at hearing would be forthcoming. For reasons above the Tribunal is satisfied the applicant was correctly notified of the letter.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant applied for the Protection visa in March 2010 and over eight years have lapsed since then. Overall, the Tribunal has given this factor limited weight as a reason not to cancel his visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Departmental file in this case contains a number of documents related to the applicant’s criminal history and ongoing criminal matters in Australia. [Sentence deleted]. The Tribunal wrote to the applicant after the hearing pursuant to s.424A of the Act inviting his comments on the information contained in these documents, as well as information contained in correspondence on the Departmental file from [State 1] police, and allegations from a third party. These included allegations that the applicant was involved in [criminal activities]. The applicant did not respond to the Tribunal’s letter. For reasons above the Tribunal is satisfied the applicant was correctly notified of the letter.
When the subject of the applicant’s criminal history and current matters was discussed at the Tribunal hearing the applicant said he has been charged with [charges details deleted]; is due for trial on these matters but a date has not been set; and he personally thinks the charges will be dropped. When asked if he has any other outstanding or historical criminal matters, the applicant said he has not been charged or imprisoned and has had no criminal convictions so far. Noting the court outcomes history indicated he has been fined for some matters, including [details deleted].
There appears to be a number of criminal matters which are outstanding, including matters awaiting trial. Nonetheless, on the evidence before it, the Tribunal is satisfied that the applicant has been fined and had a number of charges laid against him by the police in Australia, some of which are for serious matters. It gives this factor significant weight as a reason to cancel his visa.
[Paragraph deleted].
Also as set out in its s.424A letter to the applicant, the Tribunal notes the Departmental file contains photographs which indicate the applicant may have (or had) connections with [members of criminal gangs] in Australia, including in relation to specific [illegal] activities. The applicant did not respond to the s.424A letter in which this information was set out. For reasons above the Tribunal is satisfied the applicant was correctly notified of the letter. At hearing the applicant said he is not connected to any [criminal groups] however noted that he met some [individuals] through his gym in [State 1] where he [trains]. Although of some concern, on the limited evidence before it, the Tribunal is not satisfied that the applicant is or was a member of [a criminal gang] in Australia or associated with such gangs.
Any contribution made by the holder to the community
At hearing the applicant said he has always worked in Australia, including [workplaces deleted]. The Tribunal accepts his evidence in this regard but gives this only limited weight as a reason not to cancel his visa.
Departmental guidelines
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
There are no persons in Australia whose visas would be cancelled as a consequence of the applicant’s visa being cancelled.
Whether there are children in Australia whose interests could be affected by the cancellation, best interests of the child
As mentioned, the applicant told the Tribunal he thinks he has a child however he had no contact with her/him and their mother has taken out a restraining order limiting contact.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations
The Tribunal has considered whether the cancellation would lead to the applicant’s removal in breach of Australia’s non refoulement obligations. The applicant claims to fear serious harm or significant harm on return to Iran for a number of reasons, considered separately below.
Stateless Faili Kurd
At hearing the applicant maintains that he is a stateless Faili Kurd and fears persecution on return to Iran on that basis. Based on the Tribunal’s earlier reasoning, the Tribunal does not accept the applicant is stateless and accepts he is an Iranian citizen and would be afforded the same rights and access to services as other Iranian citizens on return. Accordingly 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 being a stateless Faili Kurd.
Faili Kurd
At the visa application stage the applicant claimed he left Iran because he is of Faili Kurdish ethnicity; he is not accepted by the authorities and the Basij in particular as a result; the Iranian government is looking for reasons to kill Kurdish people; and his father was killed in 2005 because of his Faili Kurdish ethnicity. He also claimed the Basij and Iranian police used to bother him as a street vendor because of his Kurdish ethnicity and lack of identification.

The Tribunal accepts the applicant is a Faili Kurd, noting his consistent claims in this regard. At hearing the applicant said for Kurdish people without documents, if there was a problem they would be given a hard time.
At hearing the applicant clarified that his father was shot and killed in 2005 in Iraq, not Iran, which the Tribunal accepts. However as this occurred in Iraq, it is not relevant to the applicant’s claims of serious harm or significant harm on return to Iran.
As discussed at hearing, DFAT has advised that the treatment of Faili Kurds depends on their status, noting they can be Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees. In this case the Tribunal finds the applicant is an Iranian citizen and therefore does not accept his claims that the Basij or Iranian police used to bother him in the past because of his Kurdish ethnicity and lack of documentation. For reasons below (with respect to the applicant’s political opinion claims) the Tribunal also does not accept the applicant was of adverse interest to the Basij or the Iranian authorities for any other reason. As discussed at hearing, DFAT advised that it is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of which category they belong.[11]
[11] DFAT Country Information Report Iran, 7 June 2018 at 3.13 and 3.14.
Given such advice from DFAT as well as the fact the applicant has not experienced serious harm as a Faili 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.
Political opinion
At the visa application stage the applicant claimed he participated in demonstrations following the Iranian presidential election in 2009, where he was followed by members of the Basij; he managed to hide from the Basij and decided to leave the country; and in Australia his mother called and told him the Basij came looking for him.
At the Tribunal hearing the applicant claimed that as a result of participating in anti-government protests in Iran the Basij came looking for him and he had to hide with distant relatives in Tehran before he came to Australia. As a result he is afraid the Iranian authorities and Basij will seriously harm him on return. When asked why, if that was the case, he returned to Iran in 2013 and did not experience any problems, the applicant said he returned then because his mother was ill and he did so using a legitimate document but with someone else’s name.
For the reasons that follow the Tribunal does not accept the applicant’s claims to have been involved in anti-government demonstrations in the past in Iran. That is because his oral evidence in this respect was vague and unconvincing. For example, he could not recall when the demonstrations took place – including whether they were before or after the elections – and was unable to state how many demonstrations he attended or provide any further details or context. He was also unable to explain the purpose of the demonstrations, and was not sure who was in power at the time.
Accordingly the Tribunal does not accept the applicant was involved in any demonstrations in the past in Iran or that he was looked for and/or harassed by the Basij as a result as claimed. It does not accept he managed to hide from the Basij or that the Basij asked about him via his mother. The Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities, including the Basij on return because of his involvement in anti-government demonstrations. The applicant did not claim to have been politically active in Australia or that he would be on return to Iran. Given this, and the Tribunal’s findings that he was not involved in anti-government demonstrations in Iran in the past, the Tribunal does not accept he would be politically active at all on return to Iran. Accordingly it finds he does not face a real chance of serious harm or a real risk of significant harm on return to Iran on the basis of an actual or imputed anti-government political opinion.
Tattoos
The applicant has a number of tattoos on his [body] which he obtained in Australia in and around 2014. [Details deleted]. He said the authorities in Iran will not accept his tattoos [and] that generally speaking Iran is not good with people with tattoos.
The Tribunal accepts the applicant has a number of [tattoos]. It accepts this may bring him to the attention of the authorities and/or members of the public in Iran. However for reasons above the Tribunal does not accept the applicant has any particular adverse profile from past activities and will not be politically active or otherwise come to the adverse attention of the authorities if returned to Iran, including by participating in anti-government demonstrations, or on the basis of his Faili Kurd race.
Furthermore, as discussed with the applicant at hearing, DFAT advise the following in relation to treatment of those with tattoos and other potential dress code violations in Iran:
International and domestic observers agree that the dress codes impose far more on women than they do on men, and that authorities are far more likely to target women than men for dress code violations. DFAT is aware that some men have claimed to have been discriminated against on the basis of their dress – for example, for having ‘Western-style’ hairstyles or clothing styles, visible tattoos, or visible hair removal (such as plucked or waxed eyebrows). Notwithstanding such reports, it is common to see young men fitting all of the above descriptions on Iranian streets, particularly in larger cities such as Tehran. DFAT assesses that where there have been incidents of harassment of men for violating the dress code, it is likely to have been the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities), or because the individual has come to the attention of authorities for separate activities, particularly political activism. DFAT assesses that the restrictions the dress codes place on men do not amount to discrimination.[12]
[12] DFAT Country Information Report Iran, 7 June 2018 at 3.85.
Such country information indicates that whilst there may be dress code restrictions, and violations may bring individuals to the authorities’ attention, it is not likely to result in discrimination that amounts to serious or significant harm. Given the Tribunal’s findings that the applicant otherwise would not be of adverse attention to the authorities on return to Iran, and is not stateless or undocumented, the Tribunal is satisfied that he faces a remote, not a real chance of serious or significant harm from the authorities on return to Iran on the basis of his tattoos.
Returnee 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 and failed asylum seeker.
The applicant’s concern on these grounds is undermined by the fact that he returned to Iran in 2013 and nothing happened to him, including when entering and exiting at the airport. At hearing the applicant said he was able to return to Iran in 2013 because he held a fake Iraqi passport. However for reasons above the Tribunal does not accept his claims in this regard and is of the view he entered Iran in 2013 on an Iranian passport in his own name. Therefore if the authorities had any adverse interest in him, including as a returnee from living abroad in the west for a number of years, the Tribunal considers they would have at least questioned him on his return in 2013.
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 his length of time outside the country, and given he will potentially re-enter on a new Iranian passport. However there is no evidence before the Tribunal that such questioning would lead to harm or would create difficulty for the applicant.
As discussed at hearing, DFAT have advised with respect to returnees as follows:
Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
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] DFAT Country Information Report Iran, 7 June 2018 at 5.23–5.25.
Given such country information and the fact the Tribunal does not accept that the applicant has an adverse profile, 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 as a returnee and/or failed asylum seeker.
Based on the country information set out above about returnees, combined with the fact the applicant did not experience any problems on his return to Iran in 2013, the Tribunal finds the applicant does not face a well-founded fear of persecution or a real risk of significant harm as a returnee to Iran, or failed asylum seeker.
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 if his 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 him from making a valid application for any visa without the Minister personally intervening. The applicant has consistently claimed he is stateless and does not have any Iranian documents. He said he returned to Iran in 2013 to see his mother, who was unwell, and travelled on a fake Iraqi passport, since destroyed. However, based on the Tribunal’s earlier findings that the applicant is an Iranian citizen, the Tribunal considers he will be able to return to Iran and does not accept that indefinite detention is a likely consequence of cancellation.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
There are no other matters before the Tribunal.
Other matters: non-disclosure certificate
The Tribunal notes the existence of a ‘certificate and notification’ restricting disclosure of certain information under s.438 of the Act on the Departmental file, issued on 3 May 2018. Having regard to the reasons given for its existence – that disclosure of the information would be contrary to the public interest because the information relates to deliberative processes of the Department and/or for the purposes of intelligence gathering – the Tribunal is not satisfied the certificate is valid. The information to which the certificate is subject includes findings from an identity assessment carried out by the Department in 2015 in relation to the applicant’s application for Australian citizenship. Some of that information was potentially adverse as set out in the Tribunal’s s.424A letter to the applicant (as per paragraphs 37 and 38 of this decision record). The applicant failed to provide a response to the Tribunal’s letter and for reasons above the Tribunal is satisfied the applicant was correctly notified of the letter. The information also included a record of the applicant’s interview on Christmas Island on 30 September 2009 however that information is either supportive or neutral to the applicant’s case.
As well, the Departmental file in this case contains a notification regarding the disclosure of certain information under s.438 of the Act which is also dated 3 May 2018. However it relates to information contained on a different file and related to a different applicant and is therefore not relevant to this case.
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 be cancelled.
DECISION
The Tribunal affirms the decision 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.

[2018] AATA 3927

4 October 2018

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