1814425 (Refugee)

[2019] AATA 324

1814425 (Refugee) [2019] AATA 324 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814425

COUNTRY OF REFERENCE:                  Iran

MEMBER:Melissa McAdam

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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 February 2019 at 10:06am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – imputed religion – attendance of house church – claimed profile of interest to the Basij – providing incorrect answers in visa application – returned to Iran despite claimed fears – non-compliance as described in s 107 notice – correctness of answers pertains to subjective fears at the time of application – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841

Saleem v MRT [2004] FCA 234

Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 had provided incorrect answers in his protection visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant was granted a Protection visa on 27 June 2013.

   NOICC

4. On 20 March 2018 the Department sent a ‘Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958’ (‘NOICC’) to the applicant.  In summary the NOICC stated that:

   a.The delegate considered that the applicant had not complied with section 101(b) of the Act which states that a “non-citizen must fill in  his or her application form in such a way that … no incorrect answers are given or provided.”

   b.In his Form 866 (Protection visa application form) the applicant provided the following information:

   …

   iv.Question 42, Part C:  I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)

   Answer: Iran.

   v.Question 43, Part C: Why did you leave that country?

   Answer: Please refer to attached statement of claims.

   vi.Question 44, Part C: Have you experienced harm in that country?

   Answer: Please refer to attached statement of claims.

   vii.Question 45, Part C: What do you fear may will happen to you if you go back to that country?

   Answer: Please refer to attached statement of claims.  

   viii.Question 46: Who do you think may harm/mistreat you if you go back?

   Answer: Please refer to attached statement of claims.

   ix.Question 47, Part C: Why do you think this will happen to you if you go back?

   Answer: Please refer to attached statement of claims.

   x.Question 48, Part C: Do you think the authorities of that country can and will protect you if you go back?

   Answer: Please refer to attached statement of claims.

   xi.Question 67, Part C: Declaration: The applicant declared: “the information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.”

   c.The applicant’s attached statement of claims dated 11 September 2012 included the following:

   • I am a citizen of Iran. I do not have a right of citizenship, residence or entry in any other country.

   • I fear returning to Iran because I am afraid of being arrested and persecuted because of my attendance at a private or secret church.
   • I grew up in Iran and was raised as a Shia Muslim.
   • In my late teens I began to have doubts about Islam and religion in general. I eventually rejected religion and stopped practising.
   • My co-workers suspected my rejection of Islam because I stopped praying and because of the things I said. They informed the security guards at the [company] where I was employed.
   • I was given difficult roles at work and eventually forced to resign otherwise they were going to inform the Basij.
   • During my time at work I became friends with a co-worker named [Mr A]. We used to sit and discuss religious issues and he talked to me about Christianity and a home church which he attended. I used to fear such talk because I knew Christian converts who had been hanged.
   • I became interested and attracted to Christianity and eventually I agreed to attend his home church. I went two more times.
   • After the third visit [Mr A] called me to say that he had seen the police surrounding the house and had seen some people being arrested. He told me he was scared and that I should run away.
   • I was so scared I didn’t go home. I switched off my phone and went to my mother-in law’s house. I hired a van and took all of my household effects to her place, then I rented a place near her house.
   • I stayed there for 7 or 8 days then left Iran. After I left, my mother told me the Basij had gone to my old house, the rental property and my mother’s house asking for my whereabouts.
   • When I left I didn’t know I was going to Australia, it didn’t make a difference I just had to get out.
   • I asked a friend of friend who was a travel agent to book me a ticket out. He booked me a ticket to [another country].
   • When I was in [that country] I met some other Iranians who told me that Australia was the safest place to go.
   • I am afraid of being arrested, interrogated and mistreated by the Iranian religious police for participation in Christian religious meetings. I am also afraid they will decide I have converted from Islam to Christianity and suffer the death penalty of other persecution.
   • I think the authorities in Iran will not protect me because they are the ones I fear.
   • Nowhere in Iran is safe because I am at risk from the State.
   • I am at risk of the death penalty on a charge of apostasy as well as cruel, inhuman or degrading treatment in custody in Iran.

   d.On 20 February 2013 the applicant was assessed as meeting the criteria set out in Article 1A (2) of the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees (Refugees Convention); the delegate was satisfied based on the information he provided, that the applicant was someone to whom Australia owed protection obligations; that is the delegate was satisfied there is a 'real chance' the applicant would be persecuted and subjected to harm if he was to return to Iran on account of his claimed profile of interest to the Basij and the Iranian religious police on the basis of his imputed religion.

   e.The applicant’s Protection visa was granted on 27 June 2013 on the basis of the information he provided in his Protection visa application which included his Statutory Declaration dated 11 September 2012.

   f.The applicant was issued with a Titre de Voyage travel [document] by the Australian Government [in] 2016.

   g.[In] October 2016 the applicant departed Australia using his Titre de Voyage travel [document]. On his outgoing passenger card when asked where he would be spending most time abroad he indicated Iran. He re-entered Australia [in] June 2017 using his Titre de Voyage travel document. The total time spent offshore was eight months.

   h.The applicant was interviewed at [the] airport [in] June 2017. A baggage examination was undertaken by an Australian Border Force officer and the applicant was found in possession of a valid [Iranian passport], in the [applicant’s name]. Pages from the applicant’s [Iranian passport] indicated entry and exit stamps for Iran. The applicant stated to an Australian Border Force officer that he had travelled to and resided in Iran following his departure [in] October 2016. His [Iranian passport] was issued in Canberra [in] 2016.

   i.The Delegate considered the applicant had provided incorrect answers in his Protection visa application form to questions 43, 44, 45, 46, 47 and 48 of Part C, as in his Statutory Declaration submitted with his Protection visa application he claimed he believed if he returned to Iran he would be arrested, interrogated and mistreated by the Iranian religious police for participation in Christian religious meeting; and that he would be at risk of the death penalty on a charge or apostasy as well as cruel, inhuman and degrading treatment if he was taken into custody. The Delegate stated this appeared to be incorrect because the applicant had voluntarily travelled to and resided in Iran for eight months, without experiencing any apparent harm or impediment from the Iranian authorities. The Delegate stated that returning to and residing in Iran indicated that the applicant did not have a fear of returning there and did not fear that the authorities would locate and kill him.  The Delegate stated that it appeared that the applicant did not hold the claimed profile of interest to the Iranian authorities as stated in his Protection visa application.

   Applicant’s Response to the NOICC

5. There is no record of any response from the applicant to the NOICC.

   Cancellation Decision

6. On 15 May 2018 the Department delegate cancelled the applicant’s Protection visa because the delegate considered that the applicant had not complied with s.101(b) of the Act.

   Information to the Tribunal

   Pre-Hearing Submission

7. On 2 January 2019 the applicant submitted a Statutory Declaration to the Tribunal. The following are relevant excerpts from the declaration:

   In October 2016, I returned to IRAN on a temporary basis because of my mother was sick and I missed my family and my uncle who cared for me and was a father figure to me had died. I was very sad and grief stricken as a result of the death of my [uncle].

   Due to my mother's ill health and following the advise of her doctors could not travel outside of IRAN to visit me. My father is deceased. My mother suffers from [medical] condition.

   I have a son [born] [date]. I had not been able to see my son and spend time with him since I left IRAN and I missed him very much.

   I was previously married to [another woman] but we are now divorced.

   I obtained a IRAN passport with a grant date [in] 2016. I obtained this passport from the IRAN embassy in Canberra.

   My plan when I departed Australia was to spend 3 weeks in IRAN and return back to Australia.

   I arrived at IRAN [in] oct 2016 I arrived at the airport in Mashhad.

   When I arrived at Mashhad airport l was detained by the IRAN authorities. I was detained in the detention centre in the Airport for some two weeks.

   I was only released from detention when my mother attended the detention facility and provided documents which showed I had property in Mashaad. The property documents was deposited with Authorities and I signed a document stating that I will report to the police.

   The Authorities kept my IRAN passport and my Australian issued travel document.

   During my detention in IRAN I was questioned as to my work, life and activities in Australia.

   I did not inform the IRAN authorities during my detention of any change in Religion. I made a conscious decision to hide the fact that I no longer was a Muslim and that I did not have a religion.

   I hid my views on religion as I was scared and have knowledge of the harsh penalties imposed on people in IRAN who change religion from ISLAM.

   During my time in IRAN, I lived with relatives and friends and for some time in [Village 1]. During my time in IRAN I spent time with my mother and son only when it was safe to do so.

   I was informed by mother that the Authorities had visited her residence looking for me on a number of occasions.  I had not complied with the orders in the document I signed to report to the Authorities.

   During my time in IRAN, I never attended any Mosque the reason is because I do not have the religion of ISLAM. I did not discuss my religious views with any family member or anyone. I made a decision to hide and avoid any discussion of religion or my views on the topic.

   During my time in hiding, through my mum and contacts, I was able to obtain my passport and travel documents. My mum told me that she paid money to a person who was connected to the Authorities. She told me that she had paid approximately total amount was [amount] dollars. I am aware my mum obtained the amount from she paid the contact my mother has money and if she needed extra she can obtain from family and friends

   I departed IRAN via Mashaad airport some 2 to 3 days after my passport and Australian travel document was returned back to me. I departed IRAN via Mashhad airport. However, I was informed that my details will not be entered into the computer system until I had departed the Airport.

   My mother paid for the plane ticket allowing me to travel back to Australia. I returned back to Australia [in] June 2017.

   My detention in IRAN caused me a lot stress and fear. I was in fear for my safety as I did not know if I will ever be released and I did not know what was going to happen to me. I do not have any religion.

   While in Australia, I have attended Church on a number of occasions.  I attended  [a suburban] church.

   I did not provide or give any incorrect information or answer in subclass 866 application as alleged by … the Department of Home Affairs in the decision letter dated 15 May 2018.

   I have complied with all the conditions imposed on my subclass 866 visa grant. Due to the cancellation of my visa I am distressed, depressed and very sad.

   Tribunal Hearing

8. The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancée, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

   a.The applicant recalls receiving the NOICC and referring it to his solicitor to arrange a response. He does not know why a response was not provided to the Department.

   b.The applicant had initiated with the department to bring his wife and child to Australia.  He has now cancelled the application.

   c.He has divorced his Iranian wife.  After he was released from the immigration detention centre he came to know she had been unfaithful to him.  His wife suggested they should amicably separate. It is difficult to get a divorce in Iran if the husband is not present. 

   d.His ex-wife is looking after their son. When his son is old enough he can decide if he wants to come to Australia to live with the applicant.  His son has a very close relationship with his mother so the applicant does not want to put any pressure on him to leave her. He has sent money to his ex-wife for his son.

   e.His mother and his [siblings] are living in Mashhad.

   f.The applicant returned to Iran because his [uncle] died. The applicant’s father had passed away when the applicant was [age] or [age] years old. His uncle became a father figure to the applicant. His mother was also very sick and he also wanted to see his son.  He didn’t know what to do.  He thought even if he faces troubles in Iran let it be.  His fear of persecution was not important to him anymore.

   g.His mother owns a [home] in [Village 1].  He spent most of his time there and managed to go to the tomb of his [uncle] and sometimes visit his son and mother.

   h.His intention was to be in Iran for no more than two or three weeks but when he arrived his passport and travel documents were taken and he spent time trying to get them back.  He spent his days in Iran waiting.  He would also go see his mother and son. These were the important reasons for him to travel to Iran.

   i.While he was in Iran he gave his mother a power of attorney to sort out his divorce.  He did not want to meet with his wife face to face.  About one month after he returned to Australia his divorce was finalised. Arranging his divorce was another reason he returned to Iran.

   j.When he landed in Mashhad airport officials saw his Iranian passport and somehow realised he had travelled from Australia.  Two officers came and took him to a room. They handed him a four or five page document to fill out.  It had questions such as   ‘where have you been’, ‘what have you been doing’, and so on.

   k.He was kept in the room at the airport for two weeks and interrogated.  Eventually he was told to lodge a surety to be able to leave. That was organised and he then left the airport. He does not know what the surety was for. Perhaps it was to go to court and once the matter was over the authorities would release the surety.  He would not know until he presented himself to court. The Tribunal asked the applicant why he had not mentioned having to go to court before.  His agent responded that the applicant had mentioned he had to ‘report to the police’ and that the words ‘police’ and ‘court’ are interchangeable.

   l.His mother lodged property documents for the applicant’s release from airport detention.  The property documents were a title deed over some land the applicant [owned].  It was a valuable piece of land he had bought 12 or 13 years ago. He did not pursue obtaining the title deed back.

   m.During the two weeks he was interrogated at the airport he was asked if he is a Muslim and he said yes.  They asked the same questions every day, namely where he had been living and why did he leave the country and so on.  He gave them answers that would satisfy them.  When asked why he left the county he told them he went to work.  They made no accusations against him during the interrogations.

   n.He used an Iranian passport to re-enter Iran because other people told him that he would have less problems if he did this.  He doesn’t know what problems they were referring to.  He did not ask them because he was not in a good frame of mind.

   o.He did not report to police as required for his release, because he thought it would cause him problems such as the ones that forced him to leave the country.  He did not want any risk, even one percent, of that happening. The Tribunal asked the applicant if it would not be a greater risk to him not to comply with the reporting condition.  He responded that the authorities had taken both his Iranian passport and Australian Travel Document.  The Iranian authorities knew the applicant had an Australian visa and permanent residence in Australia.  He did not tell them how he obtained it.

   p.His mother had a friend who had contact with the police and other organisations and bribes were paid to obtain the return of his travel documents.  It took eight months to do this because they were looking for a person who could do that.  He doesn’t know who any of the people were.

   q.His mother was very sick. She had [severe medical symptoms].  She was under treatment and medical supervision.  She was still able to organise getting his documents back because she contacted her friend who organised it.  He does not know which friend. The person who arranged for the applicant to leave Iran recorded his departure only after the aircraft took off.

   r.The Tribunal asked the applicant why he did not seek the Australian Consulate’s help while in Iran. He responded that he was in hiding. He would have had to go to the Consulate himself. He was hiding in his mother’s [place] so he could not go to the city to see the Consulate. The Tribunal asked why he had not tried to phone the Consulate. He responded that in the area he stayed communication was possible but not reliable. The Tribunal asked why he had not asked the Consulate to issue him a new Travel Document during his eight months in Iran. He responded that he did not know that was possible.

   s.The Tribunal asked why would the Iranian authorities care if he departed Iran again.  The applicant responded that it was for the same reason he left before. The Tribunal put to the applicant that the authorities seemed to show little interest in him after his release. He responded that they are interested in people protesting against the government, Iran has a Muslim majority, and he was at risk of being found to have attended a house church.

   t.The Tribunal asked the applicant why he did not previously try to explain to the Basij that he had simply attended a house church three times but did not consider himself Christian. He responded that in Iran he would not be given a chance to explain.

   u.The applicant applied for an Iranian passport in Australia because some friends advised him to.  He went to Canberra and applied for the passport at the Iranian Consulate.  He was asked for documents and had to fill out a form. He provided his Iranian Birth Certificate and his Australian Permanent Residence card.  The officials at the Consulate asked the applicant about his Australian Permanent Residence.  They told him he would have to write a letter of apology that he made a mistake in leaving Iran and coming to Australia.  He refused to write the apology. The official told him he should therefore go to a nearby police station and say he had lost his documents and then bring the police report to the Consulate. This is what he did.

   v.The Tribunal put to the applicant that the Iranian officials who issued his passport in Australia appeared to have no particular interest in him.  He responded that the government doesn’t have anything to do with people in Australia because they can’t do anything here.  He didn’t think about whether or not the Iranian officials can receive information about people as his mind was not paying attention to such things.

   w.At the airport, when he returned to Australia, the applicant was asked why he had travelled to Iran, given he had applied for protection in Australia. He told the Australian officials that his mother was sick and his uncle had passed away and that he didn’t care what would happen.  He did not tell them about being detained at the Iranian airport or about his travel documents being taken by the Iranian authorities because the Australian officials did not ask him about this. They simply told him he would probably get a letter from the Department and he said okay. They asked about his Iranian passport and he showed it to them.

   x.When he left Australia he intended to stay in Iran for just two or three weeks.  He did not have a return flight booked because he did not know his exact return date or what would happen to him in Iran.  The Tribunal put to him that it would presumably be safer, cheaper and easier to have pre-booked a return flight given the uncertainties he may face in Iran. He responded that the travel agency did advise him to book a return flight but he didn’t know if he would be there for two or for three weeks.

   y.Under s.424AA of the Act the Tribunal informed the applicant it had obtained a copy of his outgoing passenger card for his departure from Australia to Iran in October 2016, and that he had indicated on that card that he expected to be in Iran for two months.  The applicant responded that he possibly filled in the card incorrectly because his writing is not very good, so he may have written two months instead of two weeks; or perhaps someone else filled out the card for him.  He confirmed it was his signature on the card.

   z.The applicant is afraid of the Basij in Iran. The Tribunal asked why they would have any interest in the applicant six or seven years after his departure. He responded that he really doesn’t know.  In Iran if you get in trouble with the authorities by the time you go to the court you may be exterminated.  The Tribunal put to the applicant that there was little indication he was in trouble with the authorities. The applicant responded that the Basij went to his mother’s house three or four times and asked for him.  This happened while he was there and after he had left Iran. They continue going to his mother’s place. They are really tough and idiotic.  They pay no attention to police.

   aa.The Tribunal asked the applicant why the Basij would show any interest in him when it was the police who had arrested the house church members.  The applicant responded that the Basij are more vigilant than the police.  The Tribunal asked the applicant how the Basij would know about him and he responded the Basij are more sensitive and focus more on religious matters.  Both the Basiji and the police came. They work together. In his mind police and Basij are mixed together and the same, but the police are better than the Basij.

   bb.He thinks the House Church he visited was in [specified location]. He can’t remember now but thinks the friend who introduced him to the House Church was named ‘[Mr F]’. They were both [in the same industry] at the same location. The applicant has not heard any news of [Mr F] since the day he told the applicant about the arrest of the church members.

   cc.When [Mr F] told the applicant to run away the applicant went to his mother-in-law’s house.  He stayed at his mother-in-law’s place in hiding for one or two weeks. He obtained a ticket overseas and left Iran. Until his departure he did not stay anywhere else, just at his mother-in-law’s place.  The Tribunal asked the applicant why he wrote in his Protection visa application statement that he rented a house near his mother-in-law for seven or eight days before he left Iran.  He responded that he rented the house for his ex-wife.  He stayed there for a few days and then left Iran

   dd.The Tribunal put to the applicant that he had written in his Protection visa application statement that his friend who introduced him to the house church was named ‘[Mr A]’.  The applicant responded yes, that is correct.

   ee.The applicant asked the applicant why he left Iran when he remained there for one or two weeks after the arrest of the house church members and nothing happened to him. The applicant responded that the police and Basij were going to his mother’s place.  He thinks they started doing that on the day they raided the house church, or perhaps the day after. The Tribunal put to the applicant that his written statement indicated that they did not go to his mother’s house until after he departed Iran. The applicant responded that is correct, after he left Iran they started going to his mother’s house.  He left Iran because of the arrests. He wanted to leave before he was arrested too.

   ff.His wife and child stayed in the house that he rented for them.  She told the authorities she had separated from the applicant and they stopped visiting her. The authorities would visit his family and ask where the applicant was. They did not ask or say anything else.

   gg.The Tribunal put to the applicant that he had first left Iran on his own passport so the authorities would know he had departed Iran.  He responded that they asked questions to find out exactly where he was.  His family would tell them they didn’t know where the applicant had gone.  Perhaps they were too scared to tell them he had gone to [Country 1] in case they followed him to [Country 1].

   hh.The applicant met his current fiancée, [Ms B], when he was [working at a particular workplace] in [a suburb], in 2013.  [Ms B] worked at the [same place] too. She was in a relationship at the time. She and the applicant started going out together and she became unsure who to choose but eventually she and the applicant became friends.  He thinks [Ms B] became his girlfriend in June or September 2013. They are engaged. He thinks he asked her to marry him last year.

   ii.He has moved into [Ms B]’s family home and lives there with her and her family.  Her mother passed away in 2017.  She lives with her father[ and siblings] [at specified address].  He and [Ms B] share a room there.  They plan to marry when they have saved enough money, maybe later this year. [Ms B]’s family love the applicant.  They think he is an honest person.

   jj.He does not know why he did not mention his relationship with [Ms B] in his recent Statutory Declaration.  He would take [Ms B] with him whenever he visited the department.

   kk.He spends most of his time in Australia with his fiancée and her family. [Ms B] does not speak Persian. They communicate in English.

   ll.The applicant’s Agent stated he prepared a written statement from [Ms B] but has not yet submitted it because it is not finalised. The Tribunal told the applicant he could submit further information about their relationship within the next two weeks if he wished.

   mm.The applicant has not broken any laws while in Australia. He has not breached any of his visa conditions while in Australia.  The Tribunal put to the applicant that Condition 8559 was attached to his visa and that Condition 8559 states:

   8559  The holder must not enter the country by reference to which:
      (a)  the holder; or
      (b)  for a member of the family unit of another holder--the other holder;

   was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.

   nn.The applicant responded that he knew this condition applied to him but in those moments he made a decision he could not think straight.  He was not paying any attention, even while driving he did not know where he was going.

   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?

4. 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.

5. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]

   [1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)

6. In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5].  In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. …  A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]

   [2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.

   [3] Briginshaw v Briginshaw (1938) 60 CLR 336

   [4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383

   [5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.

   [6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]

7. This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7]  and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:

   ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

   [7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

   [8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

8. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.

9. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, referencing his accompanying Statement of Claims, were incorrect.  In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran for eight months as the basis for finding the applicant had provided incorrect information in his Protection visa application about his fears, risk and profile in Iran.

10. The applicant gave evidence at his Tribunal hearing about why he returned to Iran in 2016 despite his claimed fears.  He also gave evidence that he remained in Iran for much longer than intended due to factors outside his control, namely the confiscation of his Iranian passport and Australian Travel Document by the Iranian authorities.

11. The Tribunal found the applicant’s evidence at hearing sometimes evasive and implausible. The Tribunal formed an impression that he was less than forthcoming about his return to Iran.  However an impression falls short of the fact-finding standard required to base a determination that the applicant provided incorrect information in his original Protection visa application.

12. It remains readily possible that the applicant returned to Iran despite his fears because of his concern for his ill mother, the death of his uncle, and the need to see his young son, as well as for the opportunity to progress his divorce.  There is nothing in the evidence before the Tribunal that directly contradicts the applicant’s claimed reasons for his return.  Some inconsistencies and flawed memories of original events that caused his departure could also be expected given the passage of several years and the upheavals in his life.

13. The applicant was questioned at length by the delegate who assessed his Protection visa application about his profile, lack of Islamic, faith, involvement in the house church, arrest of house church members, and the Basij’s ensuing interest in the applicant.  The Tribunal has listened to a recording of her interview with the applicant and, as noted by the delegate, he provided a coherent, consistent and unexaggerated account of the experiences in Iran which led him to depart the country.

14. In view of the above, despite some concerns about the deterioration in the applicant’s recall and his occasional evasiveness about his departure and return, the Tribunal accepts his original account of why he departed Iran in 2012.

15. The applicant claimed that on his return to Iran in 2016 he was detained and questioned at the airport for two weeks. The applicant did not try to suggest that there were any accusations made against him during the questioning. As presented by the applicant it was simply routine questioning about what he had been doing outside Iran for so many years.  Given his plausible account of the detention and lack of attempts to embellish what occurred the Tribunal gives him the benefit of the doubt that he was temporarily detained as claimed.

16. The lack of questioning about his church attendance and the lack of accusations during his airport detention, together with his eventual release, indicate that there was no existing centrally held record of anything adverse about the applicant.  However this of itself does not necessarily mean that the local police or Basij in his area had no interest in him. 

17. Further, the applicant stated in his Protection visa application that the Basij visited his family after his initial departure from Iran but only asked about his whereabouts, not about his church attendance. The applicant stated that he simply assumed their motivation for visiting his family’s house and asking about him was his participation in the house church.  That the delegate at the time also accepted this as a likely possibility does not mean that the applicant himself provided any incorrect information, even if it eventuates that his self-acknowledged conjecture was inaccurate.  The Tribunal therefore finds that the lack of any overt interest shown in the applicant’s claimed past church attendance, during his return to Iran, does not of itself mean that the applicant provided incorrect information about these events in his Protection visa application.

18. The Tribunal has obtained and read the decision record for the applicant’s grant of a Protection visa.  In the delegate’s reasoning she refers and relies upon the applicant’s lack of Islamic faith and practice as a substantive part of why his fears of serious harm on return to Iran are well-founded.  The Tribunal notes that the applicant’s lack of Islamic faith and practice has not been put into question. The applicant has also confirmed that he continues to consider himself without religion and was too fearful to declare he is not a Muslim on return. On the evidence before the Tribunal, it accepts this.

19. In his Protection visa application, the applicant claimed to be a person who no longer adheres to the Muslim faith and who participated in just three house church gatherings, mainly as an observer.  As described by the applicant he could not be considered any sort of high level activist or even a person who would be of significant interest to the Iranian authorities. Despite the past arrest of other house church participants it would not be an unreasonable assumption by the applicant that he may be able to return to Iran after several years, for a short period, maintaining a low and discreet profile, without incurring serious harm.

20. The information that the applicant provided in his Protection visa application, found by the delegate in the cancellation decision to be incorrect, largely consists of the applicant’s stated beliefs about the risk to him in Iran in 2012, in effect his subjective fears at that time.

21. The delegate in the applicant’s Protection visa application, in her decision record, assessed the objective basis for the applicant’s claimed fears by referring to available country information and religious freedom rights.  If the lack of harm to the applicant on his return in 2016 indicates that the applicant’s subjective fears in 2012 were not objectively based, or that the objective basis had diminished, that does not of itself mean the applicant provided incorrect information about his subjective fears at the time of his application.

22. On the basis of all the evidence now before it, including his written claims, and several interviews and hearings since making his application for protection in September 2012, the Tribunal is satisfied that the applicant has maintained his claims regarding what happened to him in Iran prior to coming to Australia, with reasonable consistency and coherency.  On this evidence the Tribunal accepts the applicant did not believe in or practice Islam in Iran, that he attended a house church on three occasions, and that the church was raided with some members arrested.

23. On the information before it the Tribunal is not positively satisfied that the applicant provided incorrect information about the subjective fears he then held, or his claimed profile, in his protection visa application.

24. For the reasons provided above, the Tribunal is not satisfied that the applicant provided incorrect answers in his application for a protection visa. Therefore the Tribunal finds there was no non-compliance by the applicant in the way described in the s.107 notice.

25. 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

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

    Melissa McAdam
    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.