1811210 (Refugee)

[2019] AATA 6744

1811210 (Refugee) [2019] AATA 6744 (7 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811210

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jason Pennell

DATE:7 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 7 October 2019 at 10.16am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – particular social group – single women – fear of violence from father – fear of honour killing – applicant sponsored father’s visitor visa application – sexual assault – changed circumstances in Australia over time – marriage in Australia – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 101, 107, 109
Migration Regulations 1994 (Cth)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of Subdivision C of the Act in that she provided incorrect information on her Form 866 application for a protection visa. In particular, the delegate cancelled the visa on the basis that she did not and does not hold and adverse profile of being a single woman at risk of a family honour killing as claimed in her 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.

3. The applicant appeared before the Tribunal on 26 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [named], the applicant’s social worker, [Social Worker 1] and her brother [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. 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?

1. 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(b) of the Act  by reason that the applicant provided incorrect information regarding profile of being a single woman at risk of a family honour killing as claimed in her protection visa application.. 

2. Section 101 states that:

Visa 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.

1. Section 99 of the Act provides 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.

2. [In] December 2010 the applicant arrived on Christmas Island as an Irregular maritime Arrival and identified herself a [the applicant’s name], born on [date] in Iran.

3. In support of her application for a protection visa the applicant provided a statutory deceleration dated 17 April 2011 that claimed that:

   (a)The applicant lived in a household with her father. He father did not let her work, nor did he easily agree to the applicant’s university education on the basis of his religious beliefs.

   (b)In spite of her father’s wishes, the applicant decided to enrol in a Master’s Degree and sit the entry exam. The applicant hoped to convince her father to allow her study if the university accepted her enrolment.

   (c)On [a day in] May 2009 the applicant decided to travel to her friend’s house which was in the vicinity of the [university].

   (d)After she had arrived at her friend’s house the applicant went out to do some shopping. The applicant caught a taxi on her way back to her friend’s home. While she was in the taxi the driver went in the opposite direction to her friend’s home on the excuse that he needed to check what was wrong with the car. The applicant realised that there was another passenger in the back seat of the taxi. The other passenger grabbed the applicant, put a knife to her throat and started beating the applicant. The applicant suffered stabs wounds to her legs and thighs. When the taxi driver returned to the car, he then drove the car to a deserted area where the applicant was raped.

   (e)The applicant was dragged back into the car and later dropped off in the middle of the road where she stopped another passing car for help. The applicant woke up in an ambulance which took her to hospital.

   (f)The incident was reported to the police. The Police came to see the applicant in the hospital but she did not want to make a complaint because she was terrified of her father.

   (g)When the applicant returned home, she did not say anything to her family about what had happened to her. About six months later the applicant’s step mother found about what had happened through a friend of the applicant’s and told the applicant’s father. The applicant ‘father went into a rage and subsequently screamed at her and beat her. The applicant’s brother helped her to escape. The applicant took her valuables and left her father’s house.

   (h)The applicant went to her friend’s house. The applicant’s father rang to look for her a few hours later.  The applicant and her friend were both scared. The applicant took her things and left.

   (i)The applicant contacted another friend in [Country 1] through the internet who advised her to leave the country.

4. The applicant attended a Protection Obligation determination (POD) interview on 19 April 2011 as part of the protection visa application process at which the applicant stated that she feared that he father would severely punish or possibly even kill her as a matter of honour for having been raped and brining shame on the family . The applicant claimed that the Iranian Government will not protect her from her father and does not protect women against honour killings. The applicant further claimed she belonged to a particular social group, being single women in Iran who have dishonoured her family.

5. On 6 July 2011 the applicant lodged an application for a Protection Visa (subclass 866). The applicant attached a statutorily declaration dated 17 April 2011[1] (‘the Statutory Declaration’) in response to questions 41 to 46 on the protection visa application. Relevantly, she claimed that she was seeking Protection in Australia so that she would not have to return to Iran. She claimed that if she was to return to Iran that she was scared that her father would find her and kill her, because she was raped and her father says that she has dishonoured the family. The applicant claimed that she would not be able to relocate anywhere in Iran as her father and the authorities would be able to find her anywhere in the country.[2] 

   [1]    Statutory Declaration of [the applicant] dated 17 April 2011; Department File [number] @ f.96.

   [2]    Op Cit f93.

6. The applicant was granted a protection visa on 13 July 2011 based on the Information provide in the application form and the Statutory Declaration.

7. Departmental records confirm that on 3 December 2014 the applicant lodged an application for a Sponsored Family Stream (class FA) (subclass 600) visa for her father, [named], to visit Australia and that the applicant was the sponsor for the application.

8. The Department provided the applicant with a Notice of Intention to Consider Cancellation under s.109 of the Act dated 4 January 2018 (NOICC) advising the applicant that the department does not consider that the applicant had complied with s.101 of the Act by reason that she had provided incorrect answers to questions in her application for a protection visa. In particular,  the NOICC notes that:

   (a)As to question 41 – The applicant was seeking protection in Australia so that she did not have to return to Iran;

   (b)As to question 42 – she left Iran due to being frequently harassed by her father about her studies and being raped and that she feared that her father would severely punish or even kill her as a matter of honour after being raped and bringing shame;

   (c)As to question 43 – she would experience threats against her life if she returned to Iran and that she was scared her father would find her and kill her;

   (d)As to question 44- she has experienced psychological harm as a result of the frequent harassment and abuse by her father due to his religiously dogmatic behaviour;

   (e)As to question 45 – she feared being harmed or mistreated by her father if she is returned to Iran;

   (f)As to question 46 – she feared harm form the Iranian authorities as a single woman who has dishonoured and brought shame on her family and that she could not relocate as the authorities would find her and arrest her and inform her father. 

9. The Department alleged that the applicant had provided incorrect answers, as a result of her sponsorship of her father’s application, by reason that ‘she continues to have a positive and ongoing relationship with her father.’ In circumstances where the applicant sponsored her father’s visa the department alleged that there was ‘no obvious risk to her suffering injury or death by her father’s hand.’ As a result the department concluded that the applicant did not have, and does not hold, the adverse profile of being a single woman at risk of family honour killing as claimed at the time of lodging her Protection visa application. The applicant was invited to respond to the NOICC within 14 calendar days after she was taken to have received the NOICC.

10. By a letter from [Welfare Agency 1] to the department dated 18 January 2018[3] the applicant provided a response to the NOICC. The applicant submitted in her response to the NOICC, that the information provided in her protection visa application was not inconsistent with her having sponsored her father’s visa application in the context of her changes circumstances in Australia and the passage of time. The applicant submitted that on a proper construction of the relevant facts and supporting evidence that she did not provide any incorrect evidence in her application for protection and that the delegate could not be satisfied that she did so. The applicant confirmed her position at the tribunal hearing.

    [3]    Letter by [Welfare Agency 1] dated 18 January 2018; Department File [number] @ f112.

11. The applicant noted that in the NOICC the delegate observed that the applicant does not presently hold an adverse profile of being a single woman as a risk of a family honour killing. The applicant submitted that given she is now receiving proper medical treatment and therapy, working professionally, is now married, an  Australian resident and living with her husband in Melbourne under the protection of Australian law this observation was uncontentious and self-evident.

12. However, the applicant submits that in 2010 when she fled Iran the applicant was a single woman at risk of serious harm or death in that country her claims in this regard were and are plausible, consistent and supported by independent country information. In addition she claims that the veracity of her claims were supported by medical and psychological reports which accompanied her submission. In addition, the Tribunal notes that she was found to be a person to whom Australia had protection obligation’s pursuant to s.36 of the Act. As such, the applicant submits that the delegate’s conclusion that as a result of having sponsored her father to visit Australia that she provided incorrect information on her protection visa application some years after she was granted protection in Australia and in vastly different personal circumstances is not logical, reasonable or fair.

13. As such the applicant submits that no incorrect information was provided within the meaning of s.109 of the Act there was no relevant compliance and as cu the grounds for cancellation do not exist.

14. The applicant confirmed that at the time she left Iran she was [an age] year old unmarried woman. She grew up in the custody of her controlling father who frequently beat her and was violent towards her mother causing her serious injury. She suffered violent and traumatic rape and did not tell her father because she feared his reaction. When he did find out he locked her in her room for several days, beat her, verbally abused her and threatened her life. Given the violence she had suffered at her father’s hand during her life and having witnessed him beating her mother she genuinely feared he would harm her or kill her. As a woman, she could not call on any protection from the Iranian authorities as they would only arrest her and inform her father. In order to escape her father she left Iran.

15. Approximately 4 years later the applicant claims that she agreed to sponsor her father for visit in order to show his she has a successful life for her to convince him that she had not brought disgrace and shame upon him and thereby provide some protection for her [sister]. She claims that she felt able to sponsor her father as her circumstances had changed dramatically since she had settled in Australia. She is now married and receiving regular treatment for her psychological condition. As a result of her enhanced confidence, the support of her husband and that she was in a different country and environment, she felt that her father would not be able to harm her. Based on the evidence provided to the Tribunal by [Social Worker 1], and the applicant’s husband, [named] Tribunal accepts this explanation as to why she would have felt confident to sponsor her father.

16. The applicant submits that the she did not provide incorrect answers on her applicant. In particular she claims:

    (a)As to question 41 – The applicant claims that the answer is correct by reason that she was seeking protection in Australia so that she would not have to return to Iran. The Tribunal accepts that she made a protection visa Australia so that she would not have to return to Iran.

    (b)As to question 42 – There was no statement by the applicant that she left Iran due to having been frequently harassed by her father about her studies and being raped. Having considered the applicant’s protection visa application the Tribunal accepts that the applicant’s did not make the statement as claimed in the NOICC. The applicants answer was correct in that she feared her father would severely  punish her or even kill her as a matter of honour as a result of her having been raped. 

    (g)As to question 43 – There were no statements made that she would experience threats against her life if she returned to Iran.  Having considered the applicant’s visa application the tribunal accepts that she did not make the statement as claimed in the NOICC. The applicants answer was correct in that she feared being seriously harmed or killed by her father if she returned to Iran.

    (h)As to question 44- There were no statements made by the applicant that the applicant that she has experienced psychological harm as a result of the frequent harassment and abuse by her father due to his religiously dogmatic behaviour. Having considered the applicant’s protection visa application the tribunal accepts that she did not make the statements as claimed in the NOICC. In any event that applicant submits that this is not an incorrect answer as the psychological assessment by [Social Worker 1] of [Welfare Agency 1] both in his submission to the department and before by his evidence to the Tribunal confirmed that the applicant did experience psychological harm as a result of the frequent harassment and abuse by her father. 

    (i)As to question 45 – The applicant states that her answer was correct due to the fact that at the time she left Iran she did feared being harmed or mistreated by her father if she returned to Iran. The Tribunal accepts that the statement made by the applicant was correct.

    (j)As to question 46 – There are no statement by the applicant that she feared harm from the Iranian authorities as a single woman who has dishonoured and brought shame on her family. Having considered the applicant’s application for protection visa the tribunal accepts that no such statement as made by the applicant. The applicant claims that her answer was correct in that she stated that as a single woman in Iran under the guardianship of her father the authorities would arrest her and inform her father.    

17. Therefore, having considered that the applicants claims, her application for a protection visa, the decision to grant the applicant a protection visa, the NOICC and the delegates decision to cancel the applicant’s visa, the Tribunal is satisfied that on a proper construction of the applicant’s claims that based on the proper consideration of the available facts and material, that she did not provide incorrect answers in her application for a protection visa in April 201. As such the Tribunal finds that the applicant did not provide incorrect answers on her application for a protection visa within the meaning of the Regulations. Accordingly, the Tribunal finds that the grounds for cancellation do not exist.

18. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

19. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

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

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.