1810992 (Refugee)

[2020] AATA 2918

1810992 (Refugee) [2020] AATA 2918 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810992 & 1818409

COUNTRY OF REFERENCE:                   Iran

MEMBER:Alison Murphy

DATE:17 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2020 at 11:22am

CATCHWORDS

REFUGEE – cancellation – Protection visa – Federal Circuit Court remittal – Iran – incorrect information provided in protection application – Iranian passports renewed – returned to Iran on two occasions – particular social group – persons at risk of domestic violence – fears harm from brother in law– personal nature –significant mental health issues–medical evidence provided – compelling and compassionate reasons for the return trips –decision under review set aside

LEGISLATION

Migration Act 1958, ss 101,107,109, 425

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants are a mother and daughter from Iran, aged [age] and [age] respectively. They arrived in Australia by boat in January 2012 and were granted protection visas in July 2013 on the basis of the applicant mother’s membership of the particular social group, ‘persons at risk of domestic violence’ and her daughter’s membership of the particular social group of her family. While they made separate claims for protection, both visas were ultimately granted on the basis of the claims made by the applicant mother.

3. The delegate cancelled the visas on the basis that it was considered they had given incorrect information in their protection visa applications. In essence the delegate considered that the applicants’ subsequent returns to Iran and engagement with the Iranian Embassy in Canberra to get their Iranian passports renewed after being granted the protection visas meant that they had given incorrect information in their visa applications about their fear of harm in Iran. At the same time the delegate cancelled the visa of the applicants’ son and brother, [also] on the basis that he had provided incorrect information in his protection visa application.

4. 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 applicants were represented in relation to the review by their registered migration agent.

5. These matters were first determined by the Tribunal (differently constituted) on 5 September 2017 who affirmed each of the reviews in two separate decisions. On the same date the first Tribunal set aside a decision relating to the applicants’ son and brother, [substituting] its decision that the visa not be cancelled.

6. [In] July 2018 the Tribunal’s decisions relating to the applicant mother and applicant daughter were the subject of consent orders made by the Federal Circuit Court of Australia quashing the Tribunal’s decisions and remitting the matters back to the Tribunal for reconsideration. The court’s order records that the first Tribunal’s decisions were in each case affected by jurisdictional error because it failed to take into account material submitted by the applicants on an issue central to the review, being the applicants’ explanation as to why they returned to Iran and the circumstances of their trips.

7. All of the evidence and other material provided by the applicants to the first Tribunal is before this Tribunal, including the recordings and transcripts of the evidence they gave at the first Tribunal’s hearings on 9 May and 30 June 2017. I am mindful also that the medical evidence before me indicates that both applicants suffer from significant mental health issues. The first Tribunal recorded that the applicant mother presented at the hearings in 2017 as ‘unable to focus, unresponsive to questions and incoherent in many of her answers’. This is consistent with the opinion of Dr [A], consultant neuropsychiatrist, who recorded in 2017 that her mental state and level of distress prevented him from assessing her cognitive function or decision-making capacity in any form. Medical evidence before the Tribunal also indicates the applicant daughter also suffered from major depression at the time of the Tribunal hearings in 2017.

8. For the following reasons, the Tribunal has concluded on the basis of the oral and documentary material before it that the decisions to cancel the applicants’ visas should be set aside and it has proceeded to determine the matter without inviting the applicants to a further hearing pursuant to s.425 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

11. Notices under s.107 were sent separately to each of the applicants on 9 December 2016. The notices set out in detail the information provided by the applicants that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicants to understand and respond to the non-compliance allegations and that the delegate had reached the necessary state of mind to engage s.107 and that each of the notices issued under s.107 complied with the statutory requirements.

    The non-compliance described in the applicant mother’s s.107 notice

12. The notice to the applicant mother states that she had applied for a protection visa on 10 June 2012 attaching a statutory declaration dated 7 April 2012. The notice set out the claims contained in that statutory declaration in some detail. In essence, the applicant mother claimed in her visa application and before the RRT to fear harm from her brother-in-law [Mr B], who insisted she marry him following the death of her husband in 1999. She claimed that [Mr B] made it difficult for her to secure a place to rent, that he visited her at home and at her workplace to abuse her as a result of which she was fired from her job. She claimed that in 2006 he slapped her face so hard that she fell to the ground, suffering permanent damage to her [Body part 1]. She claimed that in 2011 [Mr B]’s wife passed away and he became more aggressive and persistent about marrying her and that in December 2011 he gave her an ultimatum to the effect that if she didn’t marry him in the next 10 days he would harm her and her children. She claimed that [Mr B] and his son were both members of the basiji and that [Mr B] also had connections with Sepah and could find her anywhere in Iran.

13. The notice sets out that at a hearing before the Refugee Review Tribunal she gave further evidence to the effect that her brother-in-law [Mr B] had the authority to have her and her children imprisoned; that she had sacrificed everything to get her children and herself away from him; that he was a psychopath who frequently assaulted her; that she feared being stoned to death and for the lives of her children. She stated that [Mr B] was very influential with the authorities and her mother has told her that [Mr B] has come to her home many times in an enraged state making threats that he would kill her.

14. The notice sets out that she was granted protection visa on 15 July 2013 on the basis of the claims submitted in her statutory declaration and her protection visa application and her evidence to the former Refugee Review Tribunal (RRT).

15. The notice sets out that the applicant mother engaged with the Iranian authorities in Canberra in order to be issued an Iranian passport [in] March 2014. She then returned to Iran between [April] 2014 and [June] 2014, using her Australian and Iranian travel documents. She returned to Iran for a second time between [January] 2016 and  [March] 2016, using her Australian and Iranian travel documents. While re-entering Australia [in] March 2016 her daughter [who] was traveling with her told officers the applicant mother had travelled to Iran to undergo [surgery], she had that surgery on [date] February 2016 at [a] hospital and she couldn’t remember her doctor’s name or the medical reasons for her travel in 2014.

16. The notice sets out that it is considered the applicant mother had not complied with s.101(b) of the act because she had provided incorrect answers in her protection visa application and supporting documentation in relation to question 43 (why did you leave that country), question 44 (have you experienced harm in that country) and question 45 (what you fear may happen if you go back to that country) because:

    ·She claimed she could not return to Iran because [Mr B] and his son were both basiji, that [Mr B] had connections with Sepah and he would find her anywhere she went in Iran;

    ·She claimed that if she were forced to return to Iran she would be tortured and harmed by [Mr B] and subjected to cruel, inhuman and degrading treatment. She claimed [Mr B] had the authority to imprison herself and her children and she feared being stoned to death and for the lives of her children;

    ·These answers were considered to be incorrect because the applicant mother had travelled to Iran on two occasions since being granted protection visa for a total period of 3 ½ months without apparent harm or imprisonment. It was considered that she did not have do not have the adverse profile she claimed when she applied for a protection visa and that she had contrived these claims in order secure to secure permanent residence in Australia.

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

17. 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.

18. The notice alleges that the mother’s claims to fear harm in Iran were incorrect, because she had returned to Iran on two occasions since being granted a protection via and also engaged with the Iranian authorities in Canberra in order to be issued an Iranian passport. The notice alleges that her actions show that she did not have the adverse profile she claimed when she applied for the protection visa, rather it states that she contrived these claims in order to secure protection in Australia.

19. While the s.107 notice does not clearly identify the characteristics of the ‘adverse profile’ to which it refers, a holistic reading of the notice suggests the profile is that of a widowed woman who had experienced serious harm including physical and sexual assault at the hands of her brother-in-law [Mr B] in the past and feared a repetition of that harm on herself and the children in the future. I accept it is a part of that profile that [Mr B] is a member of the basiji (as is his son) and has connections with Sepah.

20. The applicant mother does not dispute that she returned to Iran in 2014 and 2016 as set out in the notice, nor that she renewed her passport in 2014, rather she sought to explain her returns to Iran in 2014 and 2016 in a statutory declaration dated 22 December 2016. She stated that she returned to Iran in 2014 because her elderly father was in hospital with [a medical condition] and her doctor advised he should see his daughter. She stated that she was scared and depressed but knew that even if [Mr B] found her he would not find her children and could only kill her.

21. The applicant mother stated that she returned to Iran in January 2016 for her [body part 2] pain, after visiting so many doctors who didn’t understand her [pain] and her psychologist telling her that the pain was caused by the sickness in her mind. Her daughter told her that the time was good to Iran because they had heard that [Mr B] was out of Iran and they thought that in Iran she could see her doctor who may be able to help her. The applicant mother stated she was confident that if [Mr B] found her she would suicide.

22. By the time of the first Tribunal hearings in 2017, the applicant mother’s health had deteriorated to such an extent that the first Tribunal recorded in its decision record that she was ‘unable to focus, unresponsive to questions and incoherent in many of her answers’. In particular it recorded that she was not responsive to questions, speaking of nightmares, lack of sleep and ongoing treatment by a psychologist and described her as being ‘inconsolable’ at times during the hearings.

23. This is consistent with the opinion of Dr [A], consultant neuropsychiatrist, who reported in June 2017 that her mental state and level of distress was such that it prevented him from assessing her cognitive function or decision-making capacity in any form. On 27 April 2017 Dr [C], consultant psychiatrist, reported that the applicant mother was a poor historian due to her current mental state after suffering worsening mental health for some years. For these reasons I draw no adverse inference from the failure of the applicant mother to give cogent evidence about the issues in the review at the Tribunal hearings on 9 May and 30 June 2017.

24. While the applicant’s returns to Iran after being granted the visa may give rise to a suspicion that she did not fear harm in that country as claimed, the Australian courts have made clear that a mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut or because the visa holder has failed to show cause why the visa should not be cancelled[1].

    [1] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

25. For the following reasons I am not satisfied the applicant provided incorrect information in her protection visa application or to the RRT in the manner alleged in the notice.  

    Claimed fear of harm from [Mr B]

26. There is significant evidence as to the harm the applicant experienced at the hands of [Mr B]:

    ·Her claims before the department and the RRT were supported by the oral and documentary evidence of her two children in their own review applications as well as a number of medical reports from Australian practitioners who have treated the applicant for her serious mental health issues since her arrival here. Those reports date from 31 October 2012 to 23 June 2017. The first report records her accounts of her abuse at the hands of [Mr B] and subsequent hearing loss and expresses the opinion that she is a victim of emotional, physical and sexual abuse by her brother-in-law, as a result of which she has developed depressive and post-traumatic stress disorders. A report from her treating psychologist dated 24 April 2017 records that she presented with symptoms of major depressive disorder, post traumatic disorder, anxiety and panic attacks in the context of physical and sexual violence she endured prior to her arrival in Australia. A report dated 27 April 2017 from Dr [C], consultant psychiatrist, noted that the applicant mother was a poor historian due to her current mental state and assessed her as presenting with severe major depression with psychotic features and post-traumatic stress disorder related to traumas experienced prior to her migration, among other things. The most recent report of Dr [A], consultant psycho-geriatrician and neuropsychiatrist dated 23 June 2017 records that her mental state and level of distress prevented him from assessing her cognitive function or decision making capacity in any form, that she cried throughout the interview and at times appeared fearful of the author. Dr [A] assessed her as suffering from severe major depressive disorder with likely psychotic symptoms in the context of complex anxiety symptoms consistent with post-traumatic stress disorder and notes that her ability to engage with male health practitioners is limited by past traumatic events;

    ·The delegate who assessed her protection visa application expressed concerns about the credibility of some the applicant’s claims about [Mr B]. Even so the delegate accepted [Mr B] had threatened to seriously harm the applicant and her children in the past, attempting to intimidate her through verbal and physical abuse. The delegate refused to grant the applicant the visa because she found that there was no real chance [Mr B] would seriously harm the applicant in the future for the combined reasons of [Mr B]’s elderly age, the fact he had not attempted to locate the applicant through her family since she left Iran six months earlier, the support and protection the applicant received from her own parents and brothers and the delegate’s assessment that [Mr B] would not know if the applicant returned to Iran or where she was living;

    ·On review, the RRT stated that it was satisfied that the applicant had provided a truthful account of her circumstances in Iran, finding she was a witness of truth who had provided compelling testimony in relation to her relationship with [Mr B] and the abuse she suffered at the his hands, including multiple incidents of physical and sexual assault. The RRT cited extensive country information about the prevalence of domestic violence in Iran, recording that it was consistent with the applicant’s own evidence and corroborative of her claims. The Tribunal recorded in its reasons that the manner in which the applicant gave her evidence ‘compelled the conclusion that she was speaking truthfully of her own experiences and fears’[2]. The Tribunal found there was a real chance [Mr B] would seek to seriously harm the applicant if she returned to Iran and concluded she had a well-founded fear of persecution for reasons of her membership of the particular social group, ‘persons at risk of domestic violence in Iran’. The Tribunal found the applicant mother’s children (being the applicant daughter and a son not the subject of this review) had a well-founded fear of persecution for reasons of their membership of the particular social group comprising the applicant mother’s family.

    [2] RRT case number 1212835 Decision record dated 1 May 2013

27. In light of her consistent evidence about the harm she suffered from [Mr B], the findings of the delegate and the RRT and the medical reports before the Tribunal, I am satisfied that the applicant mother experienced serious assaults and threats from her brother-in-law [Mr B] while she was in Iran and feared a repetition of that harm on herself and the children in the future if they were returned to Iran. It follows that I am not satisfied this part of her ‘adverse profile’ referred to in the s.107 notice was incorrect.

    Claim that [Mr B] a member of the basiji with connections to Sepah

1. I have accepted it is a part of the adverse profile presented by the applicant mother that [Mr B] was a member of the basiji and had connections with Sepah. The s.107 notice suggests that the applicant mother’s claims in this regard are incorrect because she returned to Iran twice and engaged with the Iranian authorities to obtain a passport without being located, imprisoned or otherwise harmed by [Mr B] or the Iranian authorities or suffering the kinds of harm she claimed to fear in her protection visa application.

2. Evidence at the Tribunal hearings about how and why the applicant mother returned to Iran was given mainly by the applicant daughter, who accompanied her mother on the 2016 trip to Iran. She told the Tribunal that they returned to Iran in 2016 because they had heard that [Mr B] was overseas on religious pilgrimage at the time and the applicant mother stayed in a private room in hospital for two weeks. She gave evidence that they had applied for their Iranian passports by post. She stated that they didn’t know [Mr B]’s rank in Iran’s security forces or the extent of his relationships within the government because those that work in Iran’s security apparatus don’t let anyone know those matters.

3. Sepah-e Pasdaran-e Enghelab-e Islami literally translates as Army of the Guardians of the Islamic Revolution and is an alternative name for the Islamic Revolutionary Guard Cops (IRGC)[3]. DFAT reports the IRCG is Iran’s most powerful security and military organisation, established by Ayatollah Khomeini to enforce his concept of an Islamic State governed by the Supreme Leader. It is estimated to have about 150,000 personnel. The basiji is a volunteer paramilitary force that operates under the command of IRCG and its membership comes with privileges in relation to university admission, government jobs and bank loans[4]. Estimates of the total number of basiji vary widely, with the IRCG commander claiming 11.2 million members in 2009, while independent sources cite considerably lower figures (the US Council on Foreign Relations estimates 600,000). DFAT reports that the basiji receive less formal training than other Iranian security forces and often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors[5].

   [3] Rand Corporation 2009, The Rise of the Pasdaran, p. 59

   [4] DFAT Country Information Report: Iran 14 April 2020

   [5] Ibid at 5.4 – 5.6

4. I do not consider that a routine engagement with the Iranian Embassy in Canberra for the purposes of renewing her Iranian passport by mail (a copy of her earlier passport having been provided to the Department with her protection visa application) provides any basis for concluding that the applicant’s claims that [Mr B] was a member of the basiji or had connections with Sepah. DFAT reports the Iranian Passport Office is the issuing authority for Iranian passports. There is no information before me that would suggest that members of the basiji or Sepah have oversight of such processes and I consider it extremely unlikely that a member of the basij or the more powerful Sepah would come to know of a person’s routine passport renewal application to an Embassy in a third country in circumstances where that person was not otherwise of interest to Iran’s security forces for reasons of national security or outstanding criminal matters.

5. Nor do I accept that the applicant’s mother returns to Iran by air in 2014 and 2016 without located or harmed by [Mr B] or arrested by the Iranian authorities are on their own capable of establishing that the information she provided that [Mr B] was a member of the basiji and connected to Sepah was incorrect. DFAT reports that millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in western countries including Australia. While the Iranian authorities are known to impose travel bans on some Iranian citizens for reasons including security concerns, financial debts, outstanding taxes and those who have ongoing charges or are on bail or parole or have sentences awaiting enforcement[6], none of those circumstances are relevant to the applicant mother or the applicant daughter. The applicant mother’s dispute with [Mr B] was personal in nature and the s.107 notice does not suggest that she has ever claimed that she or her children would be on any watchlist held by the Iranian authorities or subject to any travel ban which would prevent their free travel into or out of Iran. For these reasons I am not satisfied that [Mr B]’s failure to find her or harm her on her returns to Iran indicates that he was not a member of the basijj with connections to Sepah as claimed.

   [6] Ibid at 5.22 – 5.24

6. The applicant mother claimed that if she were forced to return to Iran she would be tortured and harmed by [Mr B] and subjected to cruel, inhuman and degrading treatment. She claimed [Mr B] had the authority to imprison herself and her children and she feared being stoned to death and for the lives of her children. She was speaking of her subjective fear in the context of having suffered serious harm at the hands of [Mr B] in the past. The fact that the events she feared did not occur during two relatively short visits to Iran does not of itself render the information she provided as to her subjective fear incorrect. It is also possible that [Mr B] did not become aware of (or was no longer interested in) the applicant mother’s returns to Iran.

7. For the above reasons I am not satisfied the applicant mother gave incorrect information in her protection visa application or to the RRT in the manner set out in the s.107 notice and I find there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise and the decision to cancel the applicant mother’s visa should be set aside and substituted with a decision not to cancel the visa.

   The non-compliance described in the applicant daughter’s s.107 notice

8. The notice to the applicant daughter states that she had applied for a protection visa on 10 June 2012 to which she had attached a statutory declaration dated 7 April 2012. The notice set out that in that statutory declaration she made the following claims:

   • In 2008 she started working [for] [a company] in Tehran and she was required to sign a guarantee of [amount] tomans to her manager Mr [D]. After 3 months of employment she realised that her manager and general director, Mr [E], were defrauding the company and she voiced her concerns to them;
   • They started to bully her and when some money went missing, they blamed her for it.

   When the parent company started to investigate the fraud within the company, she assisted them in their investigation by providing them with information and documents. The company was subsequently shut down and Mr [D] and Mr [E] were fired;

   • The applicant started working for the parent company and began to receive telephone calls from Mr [D] and Mr [E] threatening to enforce the financial guarantee against her if she did not provide them with inside information about the company. She became aware that both Mr [D] and Mr [E] were part of the basij whom she felt were monitoring her;
   • If returned to Iran she fears that Mr [D] and Mr [E] will enforce the financial guarantee against her and that they will organise for the basij to harm her or have her charged and convicted. As the basij are part of the authorities, she would not receive protection from the authorities.

9. The notice sets out that at a hearing before the Refugee Review Tribunal she gave evidence as to the following:

   • Her primary fear is that of serious harm at the hands of her uncle [Mr B] because of her mother’s situation;
   • she is at risk of serious harm at the hands of uncle who was an abusive psychopath and a sepah official with connections to senior officials in the Iranian regime;
   • she was the victim of threats and [Mr B] continued to threaten serious harm to her mother, her brother and herself.

10. The notice sets out that she was granted protection visa on 15 July 2013 on the basis of the claims submitted in her statutory declaration and her protection visa application and her evidence to the Refugee Review Tribunal.

11. The notice sets out that [in] February 2015 the applicant daughter used Australian and Iranian travel documents to exit Australian and enter Iran between [February] 2015 and  [March] 2015 and again between [January] 2016 and [March] 2016.

12. The notice sets out that [in] January 2016 the applicant daughter was interviewed at Melbourne airport, telling officers that she was travelling to Iran with her mother who needed to undergo [surgery] and they planned to be in Iran for [number of ] days. [In] March 2016 she re-entered Australia and was interviewed again, telling officers she had travelled to Iran with her mother who had [surgery] [in] February 2016 at [a] hospital and that she had travelled to Iran in February 2015 as her psychiatrist had recommended that it may assist with her mental health issues. She was referred for a baggage search and was found to be carrying an Iranian passport, airline tickets in her name for travel between Melbourne and Tehran and a letter dated 19 January 2015 from her clinical psychologist, Dr [F].

13. The notice sets out that the applicant daughter engaged with the Iranian authorities in Canberra in order to be issued an Iranian passport [in] December 2014, seventeen months after the grant of her protection visa. She had used that passport to enter and depart Iran on two occasions during which she had contact with the Iranian authorities she claimed would subject her to serious harm should she return to Iran. It was considered that she had returned to Iran of her own volition without suffering any harm from the Iranian authorities, Mr [D] or Mr [E] which suggests she did not hold the adverse profile she claimed in her protection visa application.

14. The notice sets out that it is considered the applicant daughter had not complied with s.101(b) of the act because she had provided incorrect answers in her protection visa application and supporting documentation in relation to question 43 (why did you leave that country), question 44 (have you experienced harm in that country) and question 45 (what you fear may happen if you go back to that country) because:

    ·She claimed that her primary fear was the threat of serious harm from her uncle [Mr B] because of her mother’s situation. She claimed that her uncle was an abusive psychopath and a senior Sepah official with connections to the Iranian regime. She claimed that if returned to Iran she feared harm from Mr [D] and Mr [E] who would enforce the financial guarantee against her and they would organise the basij to capture her and harm her and she would be charged and convicted. She claimed that she would be the subject of cruel, inhuman and degrading treatment and punishment and would not be protected by the authorities;

    ·These answers were considered to be incorrect because she had returned to Iran on two occasions since being granted protection visa for a total period of 2 ½ months without apparent harm and without being charged or convicted by the Iranian authorities. It was considered that she did not have do not have the adverse profile she claimed when she applied for a protection visa and that she had contrived these claims in order secure to secure permanent residence in Australia.

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

15. 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.

16. Again, the s.107 notice does not clearly set out the characteristics of the ‘adverse profile’ of the applicant daughter to which it refers. Reading the notice as a whole I accept that profile to be that of a young woman whose father had died and whose mother had experienced serious harm at the hands of her brother-in-law [Mr B] in the past and feared a repetition of that harm on herself and the children in the future. It is a part of that profile that [Mr B] was a member of the basiji and a Sepah official. It is also a part of that profile that the applicant daughter feared harm from Mr [D] and Mr [E] from her former employment, whose corruption she had helped to expose.

17. The applicant daughter does not dispute that she renewed her Iranian passport in December 2014 or that she returned to Iran in 2015 and 2016 as set out in the s.107 notice. Rather she states that she travelled to Iran in 2015 because she had heard her fiancé was getting married to another one and she hoped to talk to him and change his mind, that she stayed at her [friend’s]  house and that she had heard her uncle [Mr B] was out of Iran on religious pilgrimage. She states that her psychologist encouraged her to return to Iran to talk to her fiancé face to face.

18. A letter dated 19 January 2015 from her treating psychologist, Dr [F], states that the applicant daughter has been under her treatment since April 2013 for a major depressive disorder and had obtained minimal improvement from psychotherapy and medication. Dr [F] states that she believes returning to Iran could help the applicant daughter’s mental health issues and asks that the positive impact of travelling to Iran be considered in the decision to grant her permission to travel to Iran given she holds a protection visa. The s.107 notice indicates that this letter was found in the applicant daughter’s baggage during a search conducted at Melbourne Airport when she returned to Australia [in] March 2016. The submissions of the applicant’s representative indicate that the applicant daughter contacted the department and asked for permission to travel to Iran prior to departing Australia and was told that she could do so but that it would cause issues with her visa.

19. The applicant daughter states she returned with her mother in January 2016 because her mother was suffering severe [pain] which was not getting better with treatment in Australia and the doctors in Australia said her emotional suffering was affecting her physical state. Her mother was hopeful that the doctors in Iran would be able to help her and was admitted to hospital for about two weeks where she received radiotherapy. She also thought it might help her mother’s emotional state.

20. I note that the s.107 notice sent to the applicant daughter alleges she told the RRT that [Mr B] was a Sepah official, in contrast to the s.107 notice sent to the applicant mother which alleges that she stated [Mr B] had Sepah connections. At the hearing before the first Tribunal on 9 May 2017, the applicant daughter gave evidence that she believed that the basiji and Sepah were the same, or at least that the two organisations were in touch with each other.  The DFAT information referred to above makes clear that both the basij and Sepah both form part of Iran’s security forces, with the basij operating under the command of more powerful Sepah (also known as the IRGC). Neither the applicant daughter nor the applicant mother were able to answer questions put to them by the first Tribunal at the 2017 hearings about what rank [Mr B] held in Iran’s security forces.

21. For the same reasons I have set out above in relation to the applicant mother, I do not consider that the applicant daughter’s brief returns to Iran in 2015 and 2016 or her engagement with the Iranian Embassy in 2014 for the purposes of renewing her Iranian passport demonstrates that the applicant daughter, or the applicant mother on her behalf, gave incorrect information to the RRT about her fear of harm from [Mr B]. Rather for the reasons set out above, I am satisfied that the applicant mother experienced serious assaults and threats from her brother-in-law [Mr B] while she was in Iran and feared a repetition of that harm on herself and the children in the future if they were returned to Iran. It follows that I am not satisfied this part of the applicant daughter’s ‘adverse profile’ referred to in the s.107 notice was incorrect. For the same reasons I have set out above, I do not accept that the applicant daughter’s returns to Iran by air in 2015 and 2016 without apparent difficulty from [Mr B] are on their own capable of establishing that the information she or her mother provided about [Mr B]’s connections to the basiji and Sepah was incorrect.

22. The s.107 notice wrongly states that the applicant daughter was granted a protection visa on the basis of the claims submitted in the statutory declaration attached to her protection visa application. The claims set out in that statutory declaration related solely to her fear of harm in relation to illegal and corrupt practised at her former workplace. The decision of the RRT member who found the applicant to be a refugee did so on the basis that she had a well-founded fear of persecution from her mother’s brother-in-law [Mr B], on the basis of her membership of the particular social group of her family. The member records in the decision record dated 1 May 2013 that having made that finding, it was unnecessary to go on to assess the applicant daughter’s other claims about the illegal and corrupt practices at her former workplace.

23. However given the s.107 notice alleges that the applicant daughter gave incorrect information about the harm she feared from her former employers Mr [D] and Mr [E], I have considered whether her returns to Iran and engagement with the Iranian Embassy in Canberra for the renewal of her passport establish that she gave incorrect information to the Department or the Tribunal when she claimed to fear harm from Mr [D] and Mr [E].

24. I note again that while the applicant daughter’s actions in returning to Iran after being granted the visa may give rise to a suspicion that she did not fear harm in that country as claimed, the Australian courts have made clear that a mere suspicion is not sufficient to establish the ground for cancellation. Rather a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut or because the visa holder has failed to show cause why the visa should not be cancelled[7].

    [7] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

25. I am not satisfied that the applicant’s returns to Iran and engagement with the Iranian Embassy establish that she gave incorrect information about the events she claimed took place at her former employment with Mr [D] and Mr [E]. The events she described in her visa application and to the RRT were stated to have taken place in 2008, some seven years before her first return to Iran. She does not suggest Mr [D] or Mr [E] ever sought to physically harm her at the time or in the several years she remained living in Iran after these events. Many things could have occurred in the years that followed these events, including the mere effluxion of time, to reduce their interest in the applicant daughter.  It cannot be said that she gave incorrect information about her her subjective fear of harm or her feeling that she was being monitored by the basij, even if (as seems likely) those people had no ongoing interest in her at the time she made her visa application and appeared before the RRT.

26. For these reasons I am not satisfied the applicant daughter gave incorrect information in her protection visa application or to the RRT in the manner set out in the s.107 notice and I find there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the visa does not arise and the decision to cancel the applicant daughter’s visa should be set aside and substituted with a decision not to cancel the visa.

    DECISION

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

   Alison Murphy
   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.