1811922 (Refugee)

1811922 (Refugee) [2019] AATA 6683 (8 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811922
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nicole Burns
DATE:8 November 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 08 November 2019 at 9:41am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – nationality – not stateless Faili Kurd but Kurdish Iranian citizen – religion – non-religious Muslim convert to Christianity in Australia – ethnicity and actual or imputed political opinion – involvement in anti-government protests and activities – church and community activities – young child an Australian citizen – best interests of the child – life and education in Australia – limited relationship with extended family – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 36, 101, 107, 109, 116, 140, 438, 424AA
Migration Regulations 1994 (Cth), r 2.41
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa because they were satisfied that the applicant provided incorrect answers on his protection visa application in breach of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 October 2019 and 31 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Pastor [A], [Church 1], and [Ms B], the applicant’s wife. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. He attended the hearings (the second one by phone).
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
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 23 January 2018, which advised the applicant that his visa may be cancelled as per s.116(1AA) of the Act due to concerns about his claimed identity (and alleged statelessness). The applicant’s wife responded to the NOICC in an email dated 30 January 2018. As well, the applicant’s representative responded in writing by providing a written submission as well as a statutory declaration from the applicant, both dated 15 February 2018. Supporting documents, including identity documents showing the applicant is an Iranian citizen, were also provided in response to the NOICC.
Whilst the response satisfied the delegate as to the applicant’s identity, it raised the issue of the applicant providing incorrect information at the protection visa stage application about his citizenship status. Therefore, a second NOICC was issued on 28 March 2018 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) of the Act, which requires that no incorrect information is given in visa applications. The applicant’s representative responded to that notice in writing on 16 April 2018. Having regard to both NOICCs (and the reasons for sending a second NOICC), the Tribunal takes the NOICC dated 28 March 2018 as the correct NOICC for the purposes of the review.
Having a look at the NOICC issued on 28 March 2018 as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 as follows.
Section 101(b) - visa applications to be correct
The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application, lodged on 20 September 2010, and in a statutory declaration dated 31 March 2010 which he had provided to the Department earlier, setting out his protection claims. The notice states that in his statutory declaration the applicant declared that he was a stateless Faili Kurd who had experienced persecution at the hands of the Iranian authorities, and needed protection on that basis. The applicant also indicated, in answer to a number of questions in the protection visa application, that he was stateless and never had citizenship of any country. On the basis of this information the delegate accepted the applicant’s claims to be a stateless, undocumented Faili Kurd. He was found to be a refugee and granted a protection visa on 22 September 2010.
However subsequently, as set out in the notice, the Department conducted an assessment of the applicant’s identity and on 27 July 2015 an identity officer concluded that it was unlikely that he was stateless (among other things). A notice was then sent to the applicant indicating that the Department was considering cancelling his visa under s.116(1AA), if not satisfied as to his identity. The applicant’s representative responded, and provided evidence of the applicant’s correct identity including his Iranian birth certificate, identity card and military service card, confirming the applicant is an Iranian national, not stateless. A second notice was then issued based on the applicant’s advice that he was actually an Iranian citizen, contrary to what he had claimed at the visa application stage.
Response to the NOICC
In response to the notice which sets out this information the applicant stated that he did provide incorrect information with his protection visa application and acknowledged that he did not comply with s.101 of the Act in respect to his nationality. This was also acknowledged by the representative in his written response to the notice. Nonetheless, the representative argued that the decision maker should exercise their discretion not to cancel the visa for various reasons, addressed separately below (elsewhere). In his oral evidence at hearing, the applicant acknowledged that he provided incorrect information in his protection visa application form (and 31 March 2010 statutory declaration) about his nationality.
The Tribunal is satisfied that the applicant provided incorrect information with respect to his protection visa application in answer to relevant citizenship questions as well as his claims related to experiencing problems in Iran in the past as a stateless Faili Kurd, and fears about experiencing problems due to that status in the future.
For these reasons, the Tribunal finds that there was non-compliance with s101(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 Migration Regulations 1994 (the Regulations), as follows.
The correct information: is that the applicant was an Iranian national (of Kurdish ethnicity) when he applied for protection, not a stateless Faili Kurd. The applicant’s case for his protection visa was based on his claim that he was owed protection because he was a stateless Faili Kurd, which was not true. The correct information is that the applicant had not experienced discrimination or harm at the hands of Iranian authorities or anyone else in the past on the basis of his status as a stateless Faili Kurd and did not fear future persecution on that basis.
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 in large part on the incorrect information provided with the visa application that the applicant was a stateless Faili Kurd and faced persecution from the Iranian authorities as a result. Had the applicant indicated that he was not stateless, the delegate may have concluded that he did not meet the criteria for the grant of the visa, given this was central to his claims.
The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his visa application and statutory declaration dated 31 March 2010.
In a statutory declaration dated 15 February 2018 in response to the first NOICC, the applicant explains that he provided the incorrect information about his nationality on advice from a people smuggler before arriving in Australia, who said he may otherwise face deportation. He states that he was not aware of immigration rules before coming to Australia, and once he had provided the false information, he had to continue. He adds that he wanted to correct the information but was advised by other asylum seekers that if he did he would spend the rest of his life in Australian detention centres. He states that he left Iran because he was disillusioned with Islam and because he had protested against the government after the elections in 2009 and witnessed the government’s violent behaviour toward those who had different political views. He also left because he was in love with his now wife, but her family did not approve of their relationship because he was not religious. At the Tribunal hearing the applicant also spoke of his remorse. He said he left Iran because he was not religious, the government oppressed Kurds, and society there is unequal.
In the representative’s response to the NOICC, he talks of the applicant’s remorse at providing incorrect information and desire to gain back his credibility.
The present circumstances of the visa holder: The applicant has been resident in Australia for nine years. He lives in a house he owns in Melbourne with his wife and son, who is almost [age] and attends kindergarten. He had his own [business] until his visa was cancelled. He has studied at TAFE level in Australia, completing a [qualification] in [Subject 1] and a [qualification] in [Subject 2], evidenced by completion certificates provided to the Department in response to the NOICC. He is an active member of his church (having converted to Christianity shortly after his arrival in Australia), as is his wife who also attends their church’s [special interest] group. He is also involved with [Kurdish Organisation 1], evidenced by a letter provided from its co-president dated [February] 2018 to the Department. Over the years the applicant has attended numerous protests promoting human rights of Kurds living in Iran (and elsewhere) in [Australia].
The applicant’s wife, although highly educated (to master’s degree level) and an experienced [occupation] (in Iran), told the Tribunal that she has struggled to find work in Australia. Instead she has been active with her church and [Kurdish Organisation 1] as well as artistically: specifically she is [an artistic creator] and has [contributed to group works]. The applicant’s wife told the Tribunal that she is the [creator] of [an artistic work] titled [detail deleted] supported through [an artistic funding body][1], which is scheduled to be [exhibited] in Melbourne in December 2019. The [work] is about a Kurdish woman [artist] fleeing oppressive circumstances in Iran, loosely based on her own experiences. The applicant’s wife provided to the Tribunal [documents related to the work].
[1] [details deleted]
The representative submitted in response to the NOICC that the applicant and his wife have worked hard to establish their lives in Australia and have many community ties. The Tribunal accepts that is the case.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.
In response to the NOICC the applicant acknowledged that he had provided incorrect information at the protection visa application stage about his citizenship. The Tribunal therefore finds that the applicant, in responding to the NOICC, did not make an incorrect statement in this regard.
Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in September 2010 and nine years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.
Any contribution made by the holder to the community: In his written submission to the Tribunal the representative submitted that the applicant has been an active member of his church and the Iranian and Kurdish communities in Australia and he has helped many others since he arrived and has undertaken volunteer work (he did not elaborate). A number of reference letters have been provided to the Department and the Tribunal including from the co-president of [Kurdish Organisation 1], from pastors from the applicant’s current and past churches, his general practitioner, and friends and neighbours of the applicant and his wife who attest to their hardworking nature, community contribution, and good character.
Other factors: Departmental guidelines
While these factors in r.2.41 of the Regulations must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to government policy[2], as follows.
[2] PAM3 ‘General visa cancellation powers’
Whether there would be consequential cancellations under s.140: The applicant’s wife’s permanent partner visa was cancelled as a consequence of the cancellation of the applicant’s visa under s.140(2) of the Act. She is subject to a separate review.[3]
[3] AAT No. 1812561
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[4]
Best interests of the applicant’s child
[4] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)
As a signatory to the Convention of the Rights of the Child (CROC) Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CROC also includes integrated but wider considerations including education[5] and health and disability considerations[6] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[7]
[5] Article 28
[6] Articles 23 and 24
[7] Article 22
When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child's age and the degree of their integration into the Australian community as well as the child's ability to resettle and integrate in the country of citizenship[8].
[8] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122
The applicant’s son is an Australian citizen, born in [year] when the applicant was a permanent resident in Australia. In response to the NOICC and in his written submission to the Tribunal, the representative submits that the applicant’s child has been born and raised in Australia, is an Australian citizen, English is his first language and if his parents visas are cancelled, he could be detained, which would adversely affect his education and friendships. He argues that family unity principles must be taken into account when considering whether the visa should be cancelled.
At hearing both the applicant and his wife said their greatest concern if they have to return to Iran relates to their son, who does not know Iran, who has no real relationship with his extended family there and is unlikely to given they are unhappy with the applicant and his wife becoming Christians (and not marrying under Islamic law). Also, whilst he speaks Kurdish at home, he speaks English elsewhere and does not understand Persian.
The Tribunal accepts the applicant’s son is an Australian citizen. While his Australian citizenship will not be affected by the applicant’s (or his wife’s) visa cancellation, the Tribunal accepts that, in practical terms, if his parents are returned to Iran, then he will have no choice but to return with them. It accepts he was born here and has spent his entire life here, and that he currently attends kindergarten and is due to enter primary school in early [year]. A letter from the applicant’s son’s kindergarten teacher has been provided to the Tribunal who speaks of his school preparedness, and his fluency in English, among other things. The Tribunal accepts that having spent his entire life in Australia, the applicant’s son is well integrated into the Australian community and he would face some challenges resettling in Iran, particularly given the strained relationship between his parents and his extended family members there, due his parent’s conversion to Christianity in Australia. Whilst still relatively young and adaptable - and he would be returning with both parents to support him - the Tribunal is of the view that such a move would involve a reasonably significant adjustment and disruption, including because the applicant is unable to read or write Farsi. The Tribunal accepts it is in the best interests of the applicant’s son’s development to remain living in Australia with his parents where he can continue his education and other endeavours, including attending church with his parents, as is their wish.
Australia’s non refoulement obligations

The Tribunal has turned its mind to whether the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The Tribunal is satisfied that the applicant is a national of Iran and that this country is his receiving country for the purposes of this assessment under s.5 of the Act.
The Tribunal notes at hearing the applicant confirmed that his claims at the protection visa application stage to fear harm from the Basij and others as a stateless Faili Kurd and alleged problems he experienced as a result were not true. He said he was approached once by the Basij in a park in Tehran with his now wife, taken to a police station and then released once they paid a bribe. The Tribunal accepts his claims in this regard but given it was one incident that occurred many years ago and the applicant and his wife are now married, it does not accept that he would face a real chance of serious harm or a real risk of significant harm on return to Iran because of that incident or more generally from the likes of the Basij due to his relationship.
The applicant also told the Tribunal that he attended some protests in the wake of the election results in Tehran in 2009, along with many others, and witnessed violence towards protesters by the authorities. The Tribunal accepts his claims in this regard, noting that many people attended the protests at the time. However, he was not harmed himself and given he has not indicated he was of any adverse interest to the authorities as a result (and the passage of time), the Tribunal does not accept that he would face a real chance of serious harm or a real risk of significant harm on return to Iran because of his attendance at anti-government protests in Tehran around 10 years ago.
It has been submitted that the applicant faces a well-founded fear of persecution on return to Iran for a number of reasons, including as a Christian convert, his Kurdish ethnicity (and involvement in activities promoting Kurds’ rights and against mistreatment of Kurds in Australia), and as a returnee/failed asylum seeker. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on return to Iran as a Christian convert (from Islam) and due to his imputed political opinion (pro-Kurdish separatist). As such it has been unnecessary to consider the other grounds advanced.
Christian convert
The applicant claims to fear persecution on return to his home country as a Christian convert (from Islam).
At hearing the applicant said he was disillusioned with Islam in Iran, stopped practicing there, and became interested in Christianity whilst in detention in Australia, as introduced to him by two Iranian pastors and an Australian woman ([Ms E]) who regularly visited the detention centre and taught Bible studies. They also bought the applicant (and other detainees) food. He said he was ‘baptised’ by a couple of [Country 1] friends whilst in detention and started attending church regularly after he was released into the community in Melbourne: initially at [Church 1] and from May 2018 at a Persian service at [Church 2]. His wife attended church with him too, and was baptised in December 2018. Their son also attends church and is waitlisted for baptism: the applicant’s wife noted at hearing that for [Church 2], children are usually baptised when older. When asked why his wife delayed her baptism, the applicant said because, whilst she was interested in Christianity for a long time, and also disillusioned with Islam from when she lived in Iran (primarily due to the poor status of women), she wanted to be sure. The applicant’s oral evidence to the Tribunal was consistent in this regard.
The applicant said his friends and family in Iran found out about his conversion when he started posting Christian messages on [social media] a number of years ago. His parents and siblings were not happy with him and whilst he still talks with his family now, he said it is only occasionally and they are ‘cold’ towards him. They are afraid they could also face trouble from the authorities as a result of his conversion (and speaking out about Jesus). The applicant said he fears he will be arrested at the airport on return as a Christian convert (and as a Kurd who has been out of the country for 12 years and given his prolific social media posts about Christianity and other politically sensitive issues), and face interrogation, torture and possibly death as an ‘infidel’.
In his written submission to the Tribunal, the representative states that as the Iranian government’s power is religion based, it would persecute the applicant for ‘terrifying’ others into thinking about conversion or for not adhering to the government’s line of thought. He submits that the Iranian government undertakes cruel and unjust acts to sustain its power in Iran, which is why it bans the Bible so people cannot learn about other religions. The applicant would be targeted as an evangelist, he submits. Reference is made to country information from a variety of sources about the treatment of Christian converts in Iran, among other things, to support the representative’s contention that the applicant’s fears of persecution in this regard are well founded.
Material provided to the Department in support of the applicant’s claims to have converted to Christianity include copies of certificates for completing Bible study courses whilst in detention in 2010 and a letter from [Mr A], senior pastor at [Church 1].[9] Pastor [A] also provided an updated letter[10] to the Tribunal. At the first hearing the Tribunal telephoned Pastor [A] who confirmed he had provided the letters of support and confirmed the applicant’s commitment to his Christian faith as set out in those letters. The applicant also provided to the Tribunal a letter[11] from Rev [C], Pastor of the Iranian Congregation, [Church 2] and a letter[12] from [Mr D], Senior Pastor at [Church 2], who attest to the applicant’s church attendance and church related activities in Australia as claimed, and opine that they consider him (and his wife) to be genuine Christian converts.
[9] Dated 20 January 2018
[10] Dated 20 August 2019
[11] Dated 31 July 2019
[12] Dated 8 September 2019
At hearing the applicant was able to describe his concerns with Islam, attraction to and exposure to Christianity in Australia and related activities, and demonstrated a reasonable knowledge of Christianity. Additionally the Tribunal found the applicant’s wife’s oral evidence about her introduction to, exploration of, and ultimately decision to convert to Christianity (and reasons for doing so) persuasive.
The Tribunal notes that in the decision of the Independent Merits Reviewer (IMR) which found the applicant to be a refugee dated 5 September 2010 (a copy of which is on one of the Departmental files[13] before the Tribunal), the reviewer accepted the applicant’s claims that he had converted to Christianity (raised for the first time at their interview). According to the decision record at interview the reviewer telephoned [Ms E] who confirmed that: the applicant had converted; they read the Bible together; he had undertaken programs to learn about Christianity; and she considered him a Christian.
[13] [file number deleted]
For these reasons, the Tribunal accepts the applicant’s claims to have converted to Christianity in Australia in 2010 and to have regularly attended church and other church related activities since then. The Tribunal held some concern as to whether he had regularly attended church since shortly after his arrival (as claimed) because, according to a record of his identity interview contained on the Departmental file dated 27 July 2015, he had given the impression that he was no longer a practicing Christian, claiming to no longer attend church due to working seven days a week. The Tribunal put this information to the applicant for comment at hearing, pursuant to s.424AA of the Act[14], and he chose to comment immediately. He said he was busy with work at the time of the identity interview, but also attended church most of the time, even if not every Sunday. He asked the Tribunal to contact the Pastor at his church he claimed to be attending at that time; the Tribunal did and Pastor [A], although he initially struggled to recollect exact dates (which is unsurprising given he did not expect the call), confirmed he has known the applicant since 2010 and that he regularly attended his church until he moved to [Church 2] in 2018. The Tribunal gives weight to the Pastor’s evidence in this respect, and given the applicant’s evidence to have converted to Christianity and regularly attended church has generally been credible, it accepts his claims to have continued to practice his Christian religion during his time in Australia (even if not every week) and does not give any weight to the observations as recorded during the identity interview in this respect.
[14] The Tribunal notes this information about the identity interview contained on the Departmental file was subject to a non-disclosure certificate dated 7 May 2018 under s.438 of the Act. The Tribunal does not consider the certificate to be valid, having regard to the reasons posited as to why it was contrary to the public interest to disclose the information.
The Tribunal also accepts that the applicant’s wife has converted to Christianity (from Islam)[15] and that they wish to have their child baptised in the near future at church - they told the Tribunal they ‘baptised’ him themselves at [a] Beach in late 2018, after the applicant’s wife’s baptism - and that they wish to raise him as a practicing Christian. The Tribunal also accepts the applicant’s claims at hearings to regularly share posts and comments about Jesus (for example) on [social media], evidenced by a large selection of posts he provided to the Tribunal ranging in dates from 2011 to now.
[15] The applicant’s wife submitted to the Tribunal a copy of her baptism certificate in relation to her cancellation case.
Furthermore, the Tribunal accepts that if the applicant were to return to Iran, were it not for his fear of persecution, he would seek to attend church, seek out other Christians, possibly attend house church gatherings, and speak of his Christian faith and family.
Given these findings, the Tribunal has considered independent country information about the situation for Christian converts in Iran to determine whether the applicant faces a well-founded fear of persecution from the authorities (or anyone else) on return to Iran as a Christian convert (from Islam). The applicant claims such people are considered apostates by the authorities in Iran and face harsh penalties under the law, including (possibly) death.
DFAT’s most recent country information report on Iran indicates that the official religion of Iran is Shi’a Islam and that approximately 98 percent of Iranians are Muslim. The report states: that article 4 of the Constitution requires all of the country’s laws and regulations be based on (Shi’a) Islamic principles; that government policy and legislation heavily favours the majority Shi’a population in practice, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities; and that the Ministry of Culture and Islamic Guidance and the Ministry of Intelligence and Security (MOIS) monitor religious activity and the Islamic Revolutionary Guards Corps (IRGC) also monitors churches.[16]
[16] DFAT Country Information Report – Iran, 7 June 2018 at 3.17 and 3.18
DFAT reports that there are non-Muslim recognised religions in Iran, including certain Christian religions, however proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the three recognised minority religions proselytises or accepts converts as members and that prohibition is ‘enforced through bans on the use of Farsi in services; bans on Iranians attending non-Muslim religious facilities, including for non-religious events such as musical performances; and the regular contacting of churches by telephone by false potential converts in order to test the reactions of church officials to receiving such enquiries.’[17] As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practice in underground ‘house churches’.
[17] Ibid at 3.30
In terms of the treatment of house church participants in Iran, DFAT relevantly states that the:
Authorities have interpreted the growth in house churches as a threat to national security: official reports and the media have characterised house churches as ‘illegal networks’ and ‘Zionist propaganda institutions’. Authorities have periodically cracked down on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise, or seek out new members. Security forces have reportedly increased the frequency of these crackdowns under the Rouhani administration, although probably not as a result of any direct instruction from the government. The judiciary has handed down long sentences in relation to house church activities: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, and sentenced the group to between ten and 15 years’ imprisonment. According to international observers, as of December 2016 approximately 90 Christians were in detention or awaiting trial because of their religious beliefs and activities. Christian advocacy groups have reported that authorities have pressured some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs). Human rights observers have reported that authorities have subjected Christians in detention to severe physical mistreatment, including beatings and solitary confinement.
International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country.
DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that do engage in proselytisation and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. The leaders of such congregations are at particular risk in this regard.[18]
[18] DFAT Country Information Report – Iran, 7 June 2018 at 3.33–3.35
DFAT also states that under Iranian law a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. It states that:
The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter Five of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
...
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups).
Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.
Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[19]
[19] DFAT Country Information Report – Iran, 7 June 2018 at 3.41–3.45
In its 2019 annual report, the United States Commission on International Religious Freedom states the following about Christians in Iran:
Iran has nearly 300,000 Christians, including traditional Armenian and Assyrian/Chaldean ethnic churches and newer Protestant and evangelical churches. The government monitors members of the historical churches and imposes legal restrictions on constructing and renovating houses of worship. Christians have been sentenced to prison terms for holding private Christmas gatherings, organizing and conducting house churches, and traveling abroad to attend Christian seminars.
Evangelical Christian communities face repression because many conduct services in Persian and proselytize to those outside their community. Pastors of house churches are often charged with national security-related crimes and apostasy.
In 2018, Iran drastically escalated its arrests of Christians. Whereas 16 Christians were arrested in Iran in 2017, at least 171 were arrested in 2018. While Iran often arrests Christians ahead of Christmas, arrests in 2018 began earlier and took place in a wider set of cities and towns than usual. A total of 114 Christians were arrested in Iran during the first week of December 2018 and more than 150 were arrested between November and December 2018. Christians arrested in Iran are often treated and charged as enemies of the state, and lawyers who take on their cases face the threat of detention. In September 2018, for example, Iran revolutionary court judges Mashaullah Ahmadzadeh and Ahmad Zargar affirmed sentences leveled in 2017 against Saheb Fadaie and Fatemeh Bakhteri on the charge of “spreading propaganda against the regime.”
...
Two converts to Christianity from Islam, Hadi Asgari and Amin Afshar-Naderi, awaited verdicts at the end of the reporting period from appellate courts on extensive prison sentences for “conductive evangelism” and “illegal house church activities.”[20]
[20] United States Commission on International Religious Freedom, 2019 Annual Report, April 2019, pp.54 and 55, type="1">
The UK Home Office, in a May 2019 report about Christians and Christian converts in Iran, states that simply converting to Christianity is not considered enough to put a person at a real risk of persecution but that their actions and activities and the degree to which their conversion is visible will determine whether or not they would be at a real risk.[21] The report goes on to state that the Iranian authorities are interested in those engaged in evangelical or proselytising activities and that it is not usually a problem for those who practice their faith discreetly, including for those who return to Iran and do not actively seek to influence others to convert to Christianity, who consider their faith a personal matter, and who are unlikely to seek to express in public their faith. Such people are likely to be able to continue practicing Christianity discreetly.[22]
[21] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.13,
[22] Ibid at 2.4.14
The UK Home Office also reported that members of evangelical/house churches are ‘subject to harassment, arrest, close surveillance and imprisonment by the Iranian authorities’.[23]
[23] UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 2.4.4
In a November 2017 Landinfo report, the underlying rationale for the way the Iranian government monitors and treats house church members is explained as follows:
In general, the government regards religious pluralism beyond their control as a security risk. Iran does not have freedom of association, and all organised activity, whether political, religious or cultural, must be applied for and authorised by the Ministry of the Interior and the Ministry of Culture and Islamic Guidance. Activities that are considered to undermine or threaten the legitimacy and stability of the Islamic regime are not allowed and may have criminal consequences. The regime bases its legitimacy on Islam being the religion of the people, and that the government exercises the will of the people through an Islamic regime. Any religious movement that differs from or provides an alternative to orthodox Shiite Islam is interpreted as a threat to the state itself. Religious activists are therefore viewed with suspicion and risk being prosecuted.
...
The reason why Iranian authorities define the organised house church movement to be a threat against national security, is that they relate the movement’s activities to political opposition activities. House church meetings are conducted in secret, which means that the government can neither control who participates nor what happens in the meetings. The government therefore consider the meetings to be a potential source of opposition activity that can threaten the regime. Furthermore, there is contact between many house churches and foreign communities. This kind of Western connection is perceived by the authorities as suspect, and as a threat to the regime.[24]
[24] Norwegian Country of Original Information Centre (Landinfo), Iran: Christian converts and house churches (1) – prevalence and conditions for religious practise, 27 November 2017, pp.21 and 23, (footnotes omitted),
The Australian Institute of International Affairs published an Iran Study Tour Report in April 2018, which stated as follows:
Under the current Islamic regime, citizens are, at least in theory, free to practice the religion of their choice. Each religious minority is guaranteed a seat in parliament, as stipulated in Iran’s constitution. However, whilst conversion to Islam is accepted and encouraged, it is illegal to convert to a different religion once one has identified as Muslim. This is considered apostasy and harsh penalties can apply. Apostasy is punishable by death in certain cases, however the crime has never been codified in law.[25]
[25] Cited in: UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.1.3
In August 2017, when asked by the UK Home Office what attracts the authorities to new converts and what kind of activities could therefore lead to ill-treatment, Open Doors and Article 18 suggested the following would (although these can depend on the city):
·Any kind of gathering;
·Sharing the gospel;
·Being in possession of more than one Bible (usually one Bible will be tolerated by the authorities, but not always);
·Possession of a library of Christian literature;
·Holding discipleship classes;
·Studying theology;
·Contact with Christian organisations;
·Attending Christian conferences and seminars inside the country or abroad where teaching takes place;
·Hosting or, in some cases, even attending house churches.[26]
[26] Open Doors, ‘Interview with CPIT, UK Home Office’, 8 August 2017: cited in UK Home Office, Country Policy and Information Note, Iran: Christians and Christian converts, May 2019 at 8.5.6
Such country information set out above indicates that the government in Iran continues to regulate Christian religious practices and those at greatest risk are its leaders and proselytisers. The information suggests that the state is focused more on public practice of religion and proselytising than one’s own private conviction and on this basis the Tribunal considers if the applicant were to return and practice his Christian religion discreetly he would be able to do so without drawing the adverse attention of the Iranian authorities. However, the Tribunal notes that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.[27] If the applicant on return to Iran speaks to others about Christianity or expresses his belief with others, for example by attending or organising house churches, or even, possibly, sharing social media posts (as he has done so in Australia over a number of years) then the country information indicates he could be at risk. Based on his past practices and evidence of his religious practice and commitment in Australia, the Tribunal is satisfied that the applicant will undertake such activities on return to Iran, or if not, only because of fear of persecution in doing so.
[27] In Appellant S395/2002 v MIMA (2003) 216 CLR 473
Taking into account these considerations, the Tribunal finds there is a real chance the applicant would be subjected to ‘serious harm’ including loss of liberty and significant physical harassment and ill-treatment for the purposes of s.5J(4)(b) if returned to Iran, now or in the foreseeable future, at the hands of the Iranian authorities. It finds that the harm will be directed at him for the essential and significant reason of his Christian religion (as a convert from Islam), and even noting that the death penalty is now rare, other harsh penalties can apply, and involves systematic and discriminatory conduct for the purposes of s.5J(4). The Tribunal accepts that the applicant wishes to freely practice his faith but fears that to do so in Iran will expose him to persecution, including arrest and detention. The weight of country information before the Tribunal indicates that the applicant’s fears in this regard are well-founded and that there is a real chance that continuing to practice his Christianity would draw attention to his conversion from Islam and expose him to harm.
As the applicant’s fear is of persecution at the hands of the state, the Tribunal is satisfied that the real chance of persecution relates to all areas of Iran for the purposes of s.5J(1)(c) and that effective protection measures are not available to him for the purposes of s.5J(2). He cannot be required to modify, alter or conceal his religion or political beliefs pursuant to s.5J(3).
In all the circumstances, the Tribunal accepts that there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to Iran on the basis of his religion. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution. For these reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
Political activities in Australia
Given this finding, it is not necessary for the Tribunal to consider the applicant’s other protection claims. Nonetheless the Tribunal notes the applicant’s claims about his active involvement in protest activities in Australia aimed at bringing attention to the poor treatment of Kurds in Iran (and elsewhere) and related fears of mistreatment by the Iranian authorities if this becomes known. At hearing he said that he is sure the Iranian government is aware of his political activities in Australia, noting many people take photographs and videos of protests, for example, which are shared online.
As well, the applicant said he has been very active on social media in Australia over the years, sharing various posts that bring attention to human rights abuses of Kurds in Iran and elsewhere (among other things). After the first hearing the applicant provided a selection of the posts he had shared on [social media], from around 2011 to now, and the Tribunal accepts his claims in this regard.
At hearing the applicant’s wife – who is also Kurdish – said in Iran if Kurds criticise the government for any reason, they are considered separatists and terrorists. This suspicion extends to Kurds who have lived overseas for a long period of time, and who have been active on social media criticising the government, which applies to her husband’s case.
Having regard to the applicant and his wife’s consistent oral evidence and the social media posts provided, which span a number of years, the Tribunal accepts the applicant has been active in Australia since 2011 protesting against human rights abuses against Kurds in Iran and elsewhere, in person and online. The Tribunal is of the view that such activities, if they become known to the Iranian authorities on return, or if the applicant becomes politically active in the foreseeable future, mean he may be at risk of harm by the authorities, as the country information indicates. For instance a recent report from the UK Home Office indicates that Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities[28]. DFAT states that the risk (of official and societal discrimination) to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher.[29]
[28] UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups, January 2019, at 2.4.3 - 2.4.5,
[29] DFAT Country Information Report – Iran, 7 June 2018 at 3.6
For these reasons, the Tribunal accepts the applicant has a well-founded fear of persecution in Iran for the combined reasons of his Christian religion (as a convert from Islam) and his imputed political opinion (pro-Kurdish separatist), as a politically active Kurd.   If his visa is cancelled, the Tribunal finds that Australia will be in breach of its non-refoulement obligations. It has given this factor a very significant degree of weight that supports not cancelling the visa.
Mandatory legal consequences to a cancellation decision: If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. For the reasons set out above, the Tribunal has found the applicant’s removal from Australia would be in breach of Australia’s non-refoulement obligations under relevant international agreements, which may lead to longer immigration detention.
Any other relevant matters: there are no other relevant matters apparent to the Tribunal.
CONCLUSION: EXERCISE OF DISCRETION
In this case the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department at the visa application stage by claiming to be stateless, which was central to the decision to grant him a protection visa and that decision was based in large part on the incorrect information he provided. As discussed, the Tribunal considers that had the correct information been known he may not have been found to engage Australia’s protection obligations. However, in this case, having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular the Tribunal gives weight to the following matters:
a.For the reasons above, the Tribunal has found that the applicant faces a well-founded fear of persecution on return to Iran as a Christian convert and on imputed (anti-government/pro-Kurdish separatist) political opinion grounds, in breach of Australia’s non-refoulement obligations.
b.For the reasons above, the Tribunal has found that it is in the best interests of the applicant’s son, an Australian citizen who has only known Australia and who would have limited extended family support in Iran (and possibly be ostracised by them due to his parents conversion to Christianity, and his own Christian faith), to remain living in Australia with his parents. The Tribunal is obliged to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the CROC.
c.The applicant and his wife appear to have worked hard to establish their lives in Australia for almost a decade. References have been provided attesting to their involvement in, and significant contribution to their church community, and support to the Kurdish community in Australia, among other things. The applicant’s wife – although not an applicant in this visa cancellation case – is clearly active as [an artistic creator] in promoting Kurdish women’s rights (in particular, but not exclusively) in Australia.
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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Nicole Burns
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)    requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 6683

8 November 2019

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