1815662 (Refugee)

[2020] AATA 1548

1815662 (Refugee) [2020] AATA 1548 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815662

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:4 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 04 February 2020 at 11:26am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – religion – non-practicing Muslim – pressure from father and arrest and torture by Basij – low-level political protester – incorrect information in visa application – claimed to have departed using false passport – later found to have genuine passport – original departure and voluntary returns and stays using this passport, with no harm – wedding – relatives’ physical or mental health – applicant’s mental health – baptism and low-level church attendance in Australia – discretion to cancel visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 116
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
SZEEM v MIMIA [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235


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

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 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.

3. The applicant appeared before the Tribunal on 11 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Reverend A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 12 February 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) (visa applications to be correct) of the Act.  He was advised to respond in writing.  On 7 March 2018 the applicant’s then representative provided a written response and supporting documents.  

8. 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?

9. 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

10. 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 4 June 2012 and in a statutory declaration dated 20 February 2011 lodged earlier, in support of his Refugee Status Assessment (RSA), which set out his protection claims.  His protection claims included problems the applicant had allegedly experienced in Iran from the authorities and his father because he rejected Islam; fears of being arrested due to his involvement with the Green Movement; and claims he left Iran on a false passport.  The applicant claimed to fear he would be arrested at the airport if he returned, detained and tortured by the authorities as a result, because he had sought asylum in a western country.  The RSA officer was not satisfied that the applicant met the criteria in Article 1A of the Convention relating to the status of Refugees and its 1967 Protocol.  However, on 13 February 2012, an Independent Reviewer recommended the applicant be recognised as a person to whom Australia has protection obligations.  The applicant applied for the protection visa on 4 June 2012 and, based on his answers provided in the application form and supporting statements (including the statutory declaration dated 20 February 2011), was granted a protection visa on 6 June 2012.

11. However subsequently, as set out in the notice, there was information[1] before the Department that indicated the applicant had returned to Iran for six months in 2013 and for three months in 2015 (after his protection visa was granted), on what appeared to be Iranian passports in his own name: one issued [in] 2010 (No.[Number 1]) and the other issued [in] 2015 (No. [Number 2]).  Both passports were issued by the Immigration and Passport Police, Iran.  The passport issued [in] 2010 contained the following departure and arrival stamps:

    ·Departure from Tehran Imam Khomeini Airport: [October] 2010.

    ·Arrival at Tehran Imam Khomeini Airport: [March] 2013.

    ·Departure from Tehran Imam Khomeini Airport: [September] 2013.

    [1] Specifically movement records, incoming passenger cards, airline booking reference sheets and two Iranian passports in the applicant’s name (containing departure and arrival stamps).  

12. Based on these passports – the first of which was located by Border Force officials during a baggage search prior to the applicant leaving Australia [in] February 2015 and the second of which was located when the applicant returned to Australia [in] May 2015 - combined with other evidence found, including airline booking reference sheets confirming the applicant’s travel to Iran, as well as information contained on the applicant’s incoming and outgoing passenger cards, the delegate was satisfied the applicant had returned to Iran on two occasions, in 2013 and 2015.  According to the notice, such information indicated that the applicant had provided incorrect information in his protection visa application because (in summary):

    a.He claimed he left Iran on a false passport using a fraudulent name, however the information indicates that he was legally able to depart Iran [in] October 2010 on passport number [Number 1] in the name of [the applicant] without any apparent harm or concerns from the Iranian authorities.

    b.He claimed that he illegally departed Iran in order to evade the Iranian authorities due to his adverse profile. This is inconsistent with his subsequent voluntary visits to Iran, and engagement with the Iranian authorities on multiple occasions as he arrived and departed through Tehran Imam Khomeini Airport.  Also, country information regarding Iranian passports’ electronic verification system together with the information held by the Iranian authorities makes it unlikely that a person would be able to pass through Tehran Imam Khomeini airport with a fraudulent Iranian passport.

    c.The applicant voluntarily returned to Iran on two occasions under his real identity, which he claimed is adversely known to the Iranian authorities. The applicant’s voluntary travel to Iran was for a period of six months in 2013 and a period of three months in 2015. He consistently claimed that he feared being arrested, tortured, beaten and killed because of his claimed adverse political and religious profile with the Iranian authorities. The applicant’s ability to live in Iran for a total period of nine months, without any apparent harm or impediment, is inconsistent with his claimed adverse political and religious profile. It is also inconsistent with his claims of being unable to return to Iran as he would be of interest to the authorities there.

13. Given the above information and considerations, the delegate was satisfied that the applicant provided incorrect answers to questions 42, 43, 44, 45, 46, 47 and 48 in his application form (which included references to claims contained in his statutory declaration dated 20 February 2011).

    Response to the NOICC

14. In response to the notice which sets out this information, the applicant’s then representative acknowledged that the applicant had returned to Iran on two occasions as indicated in the NOICC, but submitted that there was no non-compliance, arguing, in summary, as follows:

    • According to the applicant, the Iranian passport No. [Number 1] in his name is a false passport paid for by the applicant.  He also paid Iranian airport officials to leave Iran [in] October 2010, to arrive [in] March 2013 and to leave [in] September 2013.
    • The applicant paid money in each instance he dealt with Iranian authorities; Iran is a cash economy; and the authorities are not going to provide him with receipts or any other form of documentary evidence for such payments.
    • There were compelling reasons why the applicant returned to Iran: that is to visit his mother, who has [medical condition], and his wife, who has mental health issues brought about by being separated from her husband. The applicant’s initial stay was longer than expected when he saw how ill his mother and wife were.
    • The applicant lay low and only spent time with his wife and mother during his return visits to Iran. He did not spend much time in public. He remained predominantly at the homes of his wife and his mother.
    • The applicant was honest and did not mislead the Department about where he was travelling. When departing Australia the first time, the applicant had not left Australia for nearly 18 months. This time he had better English language skills to explain his reasons for travel. He was going to see relatives who were unwell.
    • The applicant does not dispute what was found in his possession [in] February 2015 and [May] 2015: however these items do not take the Department’s claims against him anywhere.

15. Material provided in response to the NOICC also included medical documents related to the applicant’s wife and mother in Iran.

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

16. At the hearing, the Tribunal discussed the relevant contents of the NOICC with the applicant.  He disputed the delegate’s findings that he provided incorrect information in his visa application about his past experiences in Iran, adverse profile, and initial departure using a false passport. He explained how he left Iran in 2010 on a false passport in the name of ‘[Alias]’ which he had obtained from a people smuggler based in Tehran, who also helped him obtain subsequent Iranian passports (in his actual name), discussed in more detail below.    

17. The Tribunal has considered the information contained in the NOICC, the applicant’s representative’s response to it, the applicant’s oral evidence to the Tribunal, and other relevant evidence before it to assess whether the grounds for cancelling the visa are made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in visa cancellation cases, the existence of facts are grounds for the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because 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.[2]

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

18. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.

19. The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v MIMIA [2005] FMCA 27. In this case, the NOICC particularises answers not given correctly concerning the applicant’s claim to have left Islam and been involved in the Green Movement, which led to him fleeing the country (on a false passport in the name of [Alias], obtained through a smuggler) out of fear of serious harm from his father and the authorities as an apostate, among other things. In the NOICC, the following two particulars are given upon which the allegations (that he was not of an adverse political and religious profile and had not departed Iran using a false passport) were based:

    i.His return to Iran for six months in 2013, unharmed, and for three months in 2015, unharmed; and

    ii.His possession of an Iranian passport in his own name and date of birth issued by the Iranian police [in] 2010 showing exit and entry stamps in relation to Tehran Imam Khomeini Airport in 2010 and 2013 (as set out above at paragraph [11]).

20. With respect to (i), the applicant acknowledges that he returned to Iran twice as alleged, but for compelling reasons: that is, because his mother, who has [medical condition] (and other health) problems was unwell and because his wife was mentally unwell.  He claims he laid low whilst there on both occasions.  In 2013 he claims he stayed at his parents’ house in Ilam only when his father was [away].  For the rest of the time he claims he slept in a [specified place] [specified] kilometres away from his village, where his wife and younger brother would visit (and bring him food).  At hearing he acknowledged that in addition to wanting to see his mother (who had allegedly had a [medical condition]) one of the main reasons he returned to Iran in 2013 was to marry his now wife, which he did in a ceremony at her parents’ house in Ilam in March 2013.  Because he had been in a sexual relationship with his wife before he left Iran, he was under pressure from her family to marry her. (He provided articles about honour killings in Iran to the Tribunal). His wife had also attempted suicide a couple of times whilst he was in Australia.  The applicant told the Tribunal he did not plan to stay for six months, however, after four months the people smuggler told him to change his return ticket to ensure the right people were working at the airport at that time.  Also, after around five months of being back in Iran his mother returned to hospital due to further [medical] problems. 

21. The applicant said he returned to Iran in 2015 because his mother had [a medical condition] and due to his wife’s deteriorating mental health due in large part to their separation.  He stayed sometimes at his wife’s parents’ house and sometimes with his mother during his three months in Iran.  Although his parents are still married, his father spent most of his time at the shrine. 

22. It is not in dispute that the applicant returned to Iran for six months in 2013 and for three months in 2015.  Such actions do raise a question about his claimed fear of persecution in Iran at the protection visa application stage.  However these returns, considered separately and cumulatively, do not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to have experienced problems in Iran from the authorities and his father because he rejected Islam (among other things) and about his fears of being arrested due to his involvement with the Green Movement there and support to an opposition leader are untrue.  It is plausible that the applicant could be in the country for temporary periods of time (the maximum being for around six months) and go unnoticed, particularly if he kept a low profile, including not working and limiting his travel outside his home area of Ilam, as submitted. 

23. The fact that the applicant returned to Iran and stayed, at least for some of the time, at his parents’ house casts doubt on his claims at the protection visa application stage to fear persecution from his father and the Tribunal is of the view that he may have exaggerated his claimed fears in this regard.  However, the applicant claimed he avoided his father – who he alleges spends the majority of his time at a shrine, away from his family – and the fact his father did not seriously harm him does not necessarily mean that the applicant provided incorrect information about his subjective fear of his father at the protection visa application stage.

24. The Tribunal has some concerns about the applicant’s claims to have kept a low profile whilst visiting Iran, including his claim that during his first visit back for six months in 2013 he spent a significant amount of time staying in a [specified place] located around [specified] kilometres from his village. That is because he made no mention of staying in a [specified place] in response to the NOICC.  It also does not make sense that he stayed in a [specified place] after his marriage, instead of with his wife and her family, as he did during his visit in 2015.  He provided to the Tribunal a copy of a photograph of himself with nature in the background, allegedly of the [specified place]: however the photo could have been taken anywhere, at any time. For these reasons, the Tribunal does not accept that the applicant stayed in a [specified place] during his time in Iran in 2013.  Whilst it accepts, based on the applicant’s evidence and having regard to the supporting medical documents that have been provided, his reasons for returning to Iran and accepts they were compelling reasons, the Tribunal does not accept his claims to have kept a low profile whilst there, including by staying in a [specified place].  In 2013 he got married and a celebration was held: this is not indicative of someone keeping a low profile.  Taking into account these considerations, the Tribunal is of the view that the applicant exaggerated his claimed adverse profile at the protection visa application stage and his fears of serious harm from his father, for example.  However, having regard to all the circumstances and considerations in this case as set out above, the Tribunal is not satisfied as per the requirement in Zhao - that is a real state of satisfaction reached on a consideration of the available material before it - that the applicant’s return to Iran on two occasions (for six months in 2013 and for three months in 2015) meant that he did not hold a well-founded fear of persecution as someone who had an adverse profile at the time of his protection visa application.  The Tribunal is not satisfied that the grounds for cancellation are made out in this instance if relying solely on the basis of the alleged non-compliance being his two returns to Iran, as set out in (i), above.

1. The Tribunal has gone on to consider the other basis (ii) upon which the allegation that the applicant was not of an adverse political and religious profile and had not departed Iran using a false passport was based: that is his possession of an Iranian passport in his own name and date of birth issued by the Iranian police [in] 2010.  That passport contains exit and entry stamps which indicate that the applicant (or the holder of the passport at the time) used that passport to depart Iran, initially in October 2010 (and to return and then depart again in 2013), not using a false passport in the name of [Alias] as he had claimed in his protection visa application.

2. At hearing the applicant told the Tribunal that he left Iran initially sometime in late 2010 – he could not remember when exactly but said late November or December (2010) – on a passport in the name of [Alias] which he had obtained by paying a smuggler in Tehran.  He departed the country via the Tehran airport on a flight to [Country 1] and did not experience any problems: that is because, he claimed, the smuggler organised his flight to coincide with corrupt officials on duty.  He added that this was before Iran’s electronic system was operational, so officers were present at the airport, stamping passports for example. The applicant said he threw that passport – in the name of [Alias] - in the water en route to Australia from [Country 1], on advice from the smuggler.

3. The applicant said after he left Iran the first time (in 2010) the Tehran-based smuggler organised a passport[3] containing his details and gave it to another person to use, who then returned it to the smuggler after use. When asked at hearing how he knows that was the case, the applicant said because in 2010 the smuggler had shown him a large number of passports containing the names of people who had already left (Iran) and had told him that those passports would be used for the next people to depart.  He said some time later, in early 2013, when he wanted to return to Iran from Australia (to visit his mother and get married) he contacted the same smuggler in Tehran and asked for that specific passport (containing his name and date of birth), issued [in] 2010.  He used that passport to return to Iran in 2013.  He claimed that the smuggler in Tehran gave that passport to his uncle who took it to [Country 2] who then sent it to the applicant at his address at the time in Brisbane.  (The applicant said the Tribunal can check Australia Post records.)  He paid the smuggler around AUD[Amount] for that passport: number [Number 1].

   [3] No.[Number 1]

4. To explain why passport No. [Number 1] has an exit stamp of [October] 2010 (from Tehran), the applicant stated at hearing that someone else departed Iran holding that passport on that date, before he claims to have left; that person returned the passport to the people smuggler in Tehran, who then held onto the same passport until early 2013 when he sent it to the applicant in Australia on his request, which the applicant then used to enter Iran [in] March 2013 and leave [in] September 2013.  However he had also told the Tribunal that the smuggler arranged this passport after he left Iran.  This inconsistency in his oral evidence on this matter, combined with the implausibility of the latter version occurring in particular (that is, his claim that someone else departed Iran holding a passport in his name and date of birth (number [Number 1]) [in] October 2010, before the applicant claims to have left Iran; that person returned the passport to the people smuggler in Tehran, who then held onto the same passport until early 2013 when he sent it to the applicant in Australia on his request, which the applicant then used to enter Iran [in] March 2013 and leave [in] September 2013) causes the Tribunal to doubt his claims in this regard.  The applicant claims he knows this kind of thing happens because in 2010 the people smuggler showed him a number of passports containing the names of people who had already left (Iran): he had told him that those passports would be used for the next people to depart.  However if that was the case, it does not explain why the applicant’s name was used to fraudulently obtain an Iranian passport for someone who departed Iran before the applicant departed Iran, as he now claims. 

5. The applicant said he obtained another Iranian passport in his name and date of birth issued [in] 2015 the same way, this time dealing with the same smuggler in Tehran directly during his visit there at the time.  He was not sure if his other passport issued [in] 2010 was about to expire, but obtained a new one on advice from the smuggler that the authorities would get suspicious if he travelled a lot on one passport.   

6. The Tribunal notes a written submission from [Rev. A] states that it is true that the passport issued to [the applicant] [in] 2010 did pass through the airport [in October 2010] as stamped on it, however, it was being carried by another person as the applicant did not leave Iran until December 2010 with a different passport in the name of [Alias]; that in Australia the applicant contacted the smuggler and arranged for his passport ([Number 1]) to be given to his uncle in Iran, who took it to [Country 2], and posted it to the applicant in Brisbane; and the applicant used it to return to Iran [in] March 2013 and [September] 2013 to Australia. 

7. It is not in dispute that the applicant was found by Australian Border Force officials in possession of two Iranian passports issued in his own name and date of birth by the Iranian police, the first issued [in] 2010 (No.[Number 1]) and the other issued [in] 2015 (No. [Number 2]).  The applicant claims he paid money to a Tehran based people smuggler to obtain these passports and that he used passport No. [Number 1] to enter and exit Iran (from Australia) in 2013.  However, he claims he did not use that passport (No. [Number 1]) to exit Iran initially in 2010 – instead using a fraudulently obtained passport in the name of [Alias] to exit – and has speculated that someone else must have used the passport in his name (also obtained by the same people smuggler) to depart Tehran Imam Khomeini Airport [in] October 2010, as shown by the exit stamp in that passport.  He claims he did not obtain passport number [Number 1] from the Tehran people smuggler (who gave it to his uncle who posted it from [Country 2] to the applicant in Brisbane) until early 2013, before his first return to Iran to see his sick mother and to wed his now wife.  He thinks the person who used that passport to depart Iran in October 2010 returned the same passport to the Tehran people smuggler, which he then forwarded to the applicant in early 2013.

8. The Tribunal has considered the applicant’s explanation with respect to the existence of passport number [Number 1], found in his possession by Australian Border Force officials, which is in his name and date of birth and contains entry and exit stamps including showing that the holder of that passport exited Tehran [in] October 2010.  The applicant claims he did not hold the passport at the time, and therefore did not provide incorrect information in the protection visa application about leaving Iran on a false passport.  However, for the reasons above, the Tribunal does not accept his claims in this regard and is of the view that the applicant departed Iran [in] October 2010 as the holder of that Iranian passport, not a false passport in the name of [Alias] as claimed at the protection visa application stage.

9. Additionally, the applicant’s claims at hearing that he left Iran on a false passport after the person holding passport number [Number 1] had left Iran ([in] October 2010) is undermined by the representative’s statement in response to the NOICC that the applicant  left Iran [in] October 2010, and paid Iranian officials to do so.

10. Finally, as discussed at hearing, the Department of Foreign Affairs and Trade (DFAT) advises that Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use.[4]  Although country information indicates that Iranian passports have been biometric since February 2011 – after passport number [Number 1] was issued – and there is a high level of corruption within Iran[5], the Tribunal does not find this is a satisfactory explanation in the circumstances of this case. The Tribunal finds it implausible that there was such a high level of fraud at the relevant Iranian offices for the issuing of passports by the Iranian passport police on two occasions, in 2010 and 2015, as the applicant claims.  Further, having regard to the fact that the passport was issued by the Immigration and Passport Police, Iran and it appears the applicant used this passport ([Number 1]) to depart Iran in 2010 and enter and exit Iran in 2013, indicates to the Tribunal that it was a genuine passport, not a fake passport as the applicant indicated in his response to the NOICC and at the Tribunal hearing. 

    [4] DFAT Country Information Report: Iran 7 June 2018 at 5.32

    [5] Ibid at 2.9

11. For these reasons, the Tribunal is satisfied that the applicant was the holder of a genuinely issued Iranian passport in his name and date of birth when he departed Iran in October 2010, not a false passport in the name of [Alias] as claimed in his protection visa application.   

12. The Tribunal finds that the applicant provided incorrect information in his protection visa application (and related statutory declaration) in this respect.  The Tribunal finds that there was non-compliance by the applicant with s.101(b) of the Act in the way described in the notice sent to him under s.107 of the Act in this respect. 

13. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice regarding his claim to have departed Iran on a false passport.

14. In reaching this conclusion, the Tribunal has had regard to the oral and written testimony of [Reverend A] on this matter.  However, it notes his evidence to the Tribunal that he has only reconnected with the applicant recently, and his submissions about the passport matters (among other things) were based on the applicant’s self-reports.  [Rev. A]’s evidence does not overcome the Tribunal’s concerns as discussed above.

    Should the visa be cancelled?

15. 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).

16. 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.

17. The correct information: is that the applicant left Iran in October 2010 on his own passport, not a false passport in a different name as claimed in his protection visa application.

18. 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). 

19. 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 part on the applicant’s claims to have left Iran on a false passport and to fear persecution on return on that basis (among other things). 

20. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his protection visa application and statutory declaration dated 20 February 2011. 

21. In response to the NOICC, the applicant claims (via his then representative) that he did not provide incorrect information at the visa application stage, contending that he left Tehran in  2010 on a false passport in the name of [Alias] and speculating that someone else must have used a passport with his details to depart as reflected in the departure stamp contained in that passport subsequently found in his possession by Australian Border Force officials (having obtained it from the smuggler in early 2013). For the reasons above, the Tribunal does not accept the applicant’s account in this regard and has found that he departed Iran on his own passport in October 2010. 

22. The present circumstances of the visa holder: The applicant has been resident in Australia for almost nine years. He told the Tribunal he lives with two cousins in a rented house in Melbourne and works as [an Occupation].  He married his wife in Iran in March 2013 and she remains living there with her parents, in Ilam.  He said he wants to sponsor her to migrate to Australia, but had been given migration advice from an agent that he was unable to do so unless he became an Australian citizen.  He has many cousins in Australia, and an uncle, whom he sees regularly.  His parents [and a number of siblings] live in Iran; of them he only talks to his mother and younger brother. 

23. The applicant provided to the Tribunal two letters from [Dr B], [Suburb 1] Medical Centre dated [February] 2018.  [Dr B] states in those letters that the applicant has been a patient of the clinic since [December] 2014, complaining of low mood and depression; he was referred to a psychologist and started anti-depressant medication; he was suffering (at the date of the letters) from depression and anxiety, and was prescribed [medicines].  At hearing the applicant said it has been hard for him being in Australia for five (or more) years and not seeing his wife, which contributes to his mental health issues.  The Tribunal accepts the applicant has experienced anxiety and depression in Australia, which he has managed through treatment and medication.

24. 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.

25. In response to the NOICC, the then representative stated that the applicant did not provide incorrect information as contended in the notice.  For the reasons above, the Tribunal has found the applicant provided incorrect information in respect of his claim at the protection visa application stage to have left Iran using a false passport. 

26. 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.

27. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in June 2012, and more than seven years have lapsed since then. 

28. 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. 

29. Any contribution made by the holder to the community: the applicant told the Tribunal that in Australia he is active supporting the Kurdish community by posting material on social media.  The Tribunal accepts that is the case.

30. As well, the applicant claims to attend a [Church] in [Suburb 1] and a church [in] [Suburb 2] (called [Name]).  However, for the reasons below (elsewhere in the decision record) the Tribunal is not satisfied that the applicant’s church attendance is genuine. 

    Other factors: Departmental guidelines

31. 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[6], as follows.

    [6] PAM3 ‘General visa cancellation powers’

32. Whether there would be consequential cancellations under s.140: There are no persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s140 of the Act.

33. 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.[7]

    Australia’s non refoulement obligations

    [7] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)

34. 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.  The Tribunal finds that the applicant is a national of Iran and that this is his receiving country for purposes of this assessment.

35. The applicant claims to have a well-founded fear of persecution on return to Iran for a number of reasons, including his Kurd ethnicity, as a Christian convert (from Islam), on political opinion grounds (due to his support to the Green Movement in Iran and activities in Australia) and as a returnee/failed asylum seeker, considered separately below.

    Christian convert

36. The Tribunal has considered the applicant’s claims to have been mistreated by the Basij in Iran in the past after his father discovered him reading anti-Islamic material, to have converted to Christianity in Australia, to attend church here, and due to posting anti-Islamic (and pro-Israeli) material online.

37. In his protection visa application the applicant claimed that one of the main reasons he left Iran was due to his religion.  Specifically, in his February 2011 statutory declaration the applicant stated that: he did not believe in Islam; he was searching for something to believe in; all the people around him were very religious and fundamentalist, especially his father; he was unable to get suitable employment after university once it was discovered (via the gozinesh[8] process) he was a non believer; and in August or September 2007 his father told the Basij the applicant did not believe in Islam (and that he had been reading anti-Islamic material) and they arrested and tortured him, and detained him for four of five days until his uncle secured his release on bail.  The applicant stated that he fears being killed in Iran as an apostate.  

    [8] ‘A process through which officials screen candidates for elected offices and applicants for public sector employment based on their adherence to, and knowledge of, Islam and loyalty to the Islamic republic’, DFAT Country Information Report: Iran 7 June 2018, glossary

38. At hearing the applicant said he left Iran because his father is a strict Muslim who used to pressure him (and his other family members) to fast and pray, among other things.  He stopped practising Islam sometime whilst at school.  At university [he] started reading a booklet which compared the Prophet Mohammad to ‘Korosh’, given to him by some of his [friends].  In addition, he was impressed with the architecturally beautiful churches he visited [in] different cities, and started reading the bible in Farsi, secretly. When asked if anyone knew about his interest in Christianity at the time, the applicant said only his then girlfriend (who is now his wife).

39. The applicant said before he came to Australia his father reported that he had anti-Islamic books in his possession to the Basij, which he had found at home.  The Basij came to his home, found the books, hit the [applicant], then detained him for four or five days before his uncle came and secured his release.  Afterwards, the applicant stayed at a couple of friends’ houses in Ilam, then at his cousin’s house in Tehran before he left the country.  He cut all contact with his father.  In response to his statement in his February 2011 statutory declaration that people from the Basij (and Sepah) went to his house because his father told them the applicant did not believe in Islam in August or September 2007 (not a few months before the applicant left Iran in 2010, as claimed at hearing) the applicant said that must have been a mistake, possibly attributable to the translator. 

1. At hearing the applicant also spoke about his initial interest in Christianity, and religious practice here, including his motivations for converting and for his ongoing attendance at various churches in Australia. He said he converted from Islam to Christianity  whilst detained at [a] detention centre in 2011, baptised by [Reverend A], who used to visit the centre regularly for prayers and Bible readings, along with other detainees.  He decided to convert because he was disgusted in his father’s behaviour, had read a lot about religions and liked Christianity because he felt it calmed him, and because it was not like other religions which require their adherents to do something.

2. The applicant told the Tribunal that since moving to Melbourne in 2014 he has attended a place he described as a [([Name])] with friends in [Suburb 2] most Saturdays.  Further, since two or three months ago, he also attends mass at a [church] closer to home (in [Suburb 1]) on some Sundays.  Prior to moving to Melbourne he lived in [City] for six months and before that in Brisbane for around one or two months (after being released from detention).  He said he only went to church once or twice in [City] and Brisbane. 

3. At hearing, when asked who knows about his conversion to Christianity (apart from his wife, whom he claims plans to convert also as soon as she comes to Australia), the applicant said he does not know.  He said whilst he has not told anyone, he has been active on social media: for example posting anti-Islamic and pro-Israel posts on [social media], which may mean his family and friends in Iran now know that he has converted. 

4. The Tribunal accepts the applicant started to have doubts about Islam in Iran and did not practice from some time in school (he did not specify when, exactly), despite being pressured to do so by his father.  It accepts he might have liked the look of Christian churches he visited [there].  It does not accept that he read the Bible in Farsi as claimed at hearing because he makes no mention of this at all in his February 2011 statutory declaration provided in support of the visa application. 

5. In addition, the Tribunal does not accept the applicant’s claim to have been arrested and mistreated by the Basij in Iran after they discovered anti-Islamic booklets in his house (following a report from his father), due to a number of concerns with his evidence in this respect, including about the timing of the alleged events.  For example, at hearing the applicant told the Tribunal that his father told the Basij about his interest in anti-Islamic material not long before he left Iran in 2010.  However he stated this took place in 2007 in his February 2011 statutory declaration.  Additionally, the applicant’s oral evidence at hearing about this matter was confused and changed over the course of the hearing.  For instance, he said that his father found the booklet (about the difference between the Prophet and Korosh) at their home; however earlier he told the Tribunal that he kept this booklet (and other anti-Islamic material) at his dormitory at university because it was too risky to take home. 

6. Additionally, the Tribunal finds the applicant’s return to Iran in 2013 where he stayed at least two days a week at his parents’ house undermines his claims that he feared serious harm at the hands of his father, who had allegedly told the Basij that he had abandoned Islam a few years earlier.  The applicant said he only stayed at his parents’ house on the nights when his father was absent, and otherwise stayed in a [specified place] during that six month period.  However, he made no mention of this fact in his response to the NOICC, which casts doubts on his claims in this regard. 

7. For these reasons the Tribunal does not accept that in 2010 (according to his evidence at the Tribunal hearing) the applicant’s father told the Basij that the applicant did not believe in Islam (and had been reading anti-Islamic material) or that the Basij then arrested and tortured the applicant, or detained him for four of five days before his uncle secured his release on bail.  Accordingly, the Tribunal finds the applicant does not face a real chance of serious harm or a real risk of significant harm from the authorities on return to Iran on this basis.

8. The Tribunal has gone on to consider the applicant’s claims to have converted to Christianity in Australia, practiced here, and his related fears of serious and/or significant harm on return to Iran.  It accepts that he was baptised in [a] detention centre in 2011 and has attended church on occasion since, in particular since he moved to Melbourne in 2014.  However, there are concerns about the applicant’s evidence before the Tribunal, which cast doubts about the applicant’s claimed religious practice in Australia and motivation to convert to Christianity, for example:

   a.    The applicant did not adequately explain, in the Tribunal’s view, why he converted from Islam to Christianity.  He told the Tribunal he was disgusted by his father’s behaviour. When asked why he then decided to convert to another religion, the applicant said because he had read a lot about different religions and chose Christianity. However, when asked why he chose Christianity, he did not answer specifically.  Apart from making general statements about feeling calm, the applicant failed to explain why he made such a significant decision.  The Tribunal notes, in his written submission to the Tribunal, [Rev. A] states, among other things, that the applicant had told him in 2011 that he wanted to convert because he could choose to do so, but was not obligated to, in contrast to Islam.

   b.    Despite claims to have been regularly attending church since he came to Melbourne in 2014, at hearing the applicant was unable to state the difference between the denominations, for example how the Presbyterian church differs from others, given he has been to different churches.  Nor did he adequately explain why he went to different churches.  When asked what religious denomination he was converted under, the applicant said he did not care at the time if he was Catholic, Protestant or Jewish and even now he goes to [various] services. He added that he thinks Jews are Catholics and that he just believes in Jesus Christ.  

   c.     The timing of the applicant’s alleged interest in Christianity in Australia raises some doubts about his motivations. That is, he was baptised whilst in the detention centre shortly after his arrival (and his protection visa granted) but on his own evidence barely attended church thereafter, until he came to Melbourne in 2014.  He claims since then he has attended a ‘[church]’ in [Suburb 2] with friends called [Name].  In his written statement provided to the Tribunal, [Rev. A] states that he has learnt that the applicant had been attending the [Church] in [Suburb 2], also known as [Name], which he describes as ‘a Christian church that has a special ministry to [a religious group]’.  However, apart from the applicant’s claims and the written and oral evidence of [Rev. A] (who was basing his evidence on the applicant’s self-reporting, given he had only been reintroduced to him recently in Melbourne, after meeting initially in [a detention centre] in 2011) no evidence has been provided showing that he has regularly attended [Name] – an interdenominational congregation – since 2014 or the [church] in [Suburb 1] more recently, as claimed.

9. Given these concerns, the Tribunal is not satisfied that the applicant is a genuine Christian convert and finds he will not practice Christianity on return to Iran.

10. In reaching this conclusion, the Tribunal has had regard to the written and oral evidence of Baptist minister, [Reverend A].  In his written statement provided to the Tribunal, the Reverend states that he first met the applicant at [a] detention centre; that he attended both the general Bible studies and Baptismal classes in 2011; and when he interviewed the applicant at the end of those classes (with an interpreter) he was satisfied that the applicant understood the significance and consequence of being baptised.  [Rev. A] told the Tribunal at hearing that he kept notes at the time, which he referred to in preparation for the Tribunal hearing (and pre-hearing submission).  The Tribunal accepts the applicant has held himself out and was accepted by the reverend as a genuine Christian convert.  However, in the Tribunal’s view the oral and written evidence from [Rev. A] does not overcome the Tribunal’s concerns as set out above.

11. Given this finding the Tribunal does not accept that the applicant will practice his Christian religion on return to Iran, or proselytise.  The Tribunal has accepted that the applicant did convert to Christianity, has attended church and church like services and has held himself out to be a Christian in Australia.  It accepts that in that context he has told some people – including relatives in Australia - about his alleged Christian conversion as claimed.  However, given the Tribunal does not accept that the applicant is a genuine Christian convert and is not satisfied that he will practice Christianity (or proselytise) on return to Iran, the Tribunal is not satisfied that the applicant will face a real risk of significant harm from family members or relatives or the authorities if removed from Australia to Iran on this basis, even taking into account the oral and written evidence from [Rev. A].  The Tribunal finds the applicant does not face a real risk of significant harm as a Christian or a Christian convert from his family, his community, the authorities or anyone else as a necessary and foreseeable consequence of being removed from Australia to Iran.

    Non practising Muslim

12. The Tribunal has considered if the applicant faces a real chance of serious harm from the authorities or anyone else on return to Iran as a non practising Muslim.  The Tribunal accepts that although the applicant was born and raised a Shia Muslim in Iran, he no longer practices and is likely to return to Iran as a non practising Muslim. 

13. The applicant claims his father is a strict Muslim who spends most of his time at a local shrine and that he used to pressure him to be more religious when he lived there, for example through fasting and prayer.  He also claimed his father informed the Basij that the applicant had been reading anti-Islamic material, which resulted in the arrest, detention and torture of the applicant.  However, for the reasons above the Tribunal does not accept the applicant’s claims in this regard.

14. The Tribunal accepts the applicant’s father is a devout Muslim who may have pressured the applicant (and other family) members to practice their Muslim faith when he lived in Iran in the past.  However, on the applicant’s own evidence he stopped practising Islam from some time in school (and thereafter) and whilst the Tribunal accepts his father was upset as a result, and on the applicant’s oral evidence they are estranged, it does not accept that his father seriously harmed him or would seek to seriously harm him as a result on return to Iran given he did not seriously harm him on his returns to Iran, and because the Tribunal does not accept the applicant will practise his Christianity on return.

15. More generally, as a non practising Muslim, as discussed at hearing, country information indicates that atheists or persons without religious beliefs are unlikely to come to the attention of Iranian security authorities unless they seek to publicise their views[9].  Further, country information indicates that less than 30% of Muslims visited mosques regularly and that Iranian authorities do not interfere with individuals provided that Islamic conventions are not challenged or violated in a visible manner.[10] 

    [9] DFAT Country Information Report: Iran, 21 April 2016 3.57

    [10] Gunes Murat Tezcur, Taghi Azadarmaki and Mehri Bahar, “Religious Participation amongst Muslims: Iranian Exceptionalism’ Critique: Critical Middle Eastern Studies, Vol15, No 3, Fall 2006 pp221-222; Landinfo Iran Christians and Converts 7 July 2011 p 15

16. Based on such country information and given these considerations, the Tribunal finds remote the chance the applicant will face serious harm from his father, the authorities and the broader community on return to Iran as a non practising Muslim, even taking into account his claims that his father is a strict Muslim. His fears of persecution by the authorities, his family and/or the community on return to Iran as a non practising Muslim are not well founded.  Nor does the Tribunal find that the applicant faces a real risk of significant harm as a non practising Muslim from his family, his community, the authorities or anyone else as a necessary and foreseeable consequence of being removed from Australia to Iran.

    Kurd ethnicity

17. The Tribunal has considered if the applicant faces a well-founded fear of persecution or a real risk of significant harm in Iran based on his Kurdish ethnicity. 

18. At hearing the applicant said Kurdish people in western Iran are treated like second class citizens, which is another reason why he left Iran in 2010.  He said there is not even one Kurd from the west in government.  When asked if he experienced any problems in Iran due to his Kurdish ethnicity, the applicant said not him: he was speaking in general. 

19. In his written submission provided to the Tribunal, [Rev. A] submits (among other things) that Kurds are second class citizens in Iran; they have no homeland; and it is not unusual for the Iranian government to go into Kurdish areas and kill people for no reason.

20. The applicant has not claimed to have experienced discrimination or specific problems due to his Kurdish ethnicity.  On his own oral evidence he successfully completed a bachelor degree (in [Subject]) in Iran and did not indicate that he faced obstacles as a Kurd in doing so. He claimed he was unable to get a government job due to screening (gozinesh), but that was because he was (allegedly) not religious enough, not because he was a Kurd. 

21. The Tribunal accepts the applicant is a Kurd and that discrimination against ethnic minorities (including Kurds) occurs in Iran, and that some Kurds can be of interest to the authorities, imputed with an anti-state/separatist political opinion.  It accepts that it may be difficult for some Kurds to obtain permanent work, and they may experience a level of discrimination as submitted.  Nonetheless, as discussed at hearing, the DFAT reports that Iran’s laws do not discriminate on the basis of ethnicity, including in relation to access to education, employment or housing. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states that the overwhelming majority of ethnic minority communities are integrated into Iranian society, participate in politics and identify with the Iranian nation.[11]  Overall DFAT assesses that:

    Members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. This may take the form of denial of access to employment and housing, but is unlikely in most cases to include violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher.[12]

    [11] DFAT Country Information Report: Iran 7 June 2018 at 3.1 and 3.3

    [12] Ibid at 3.6

22. The UK Home Office reports that whilst Kurds in Iran face institutional discrimination which affects their access to basic services, the evidence (as found in the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 (IAC))[13] does not support the contention that such discrimination is, in general, at such a level as to amount to persecution.  They state that although the Iranian authorities have become increasingly suspicious of and sensitive to Kurdish political activities, and that those of Kurdish ethnicity are thus regarded with even greater suspicion, the ‘mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even combined with illegal exit, does not create a risk of persecution...’.  The report states that Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities[14].  In the applicant’s case he has not indicated that he has ever been involved in such activities, and the Tribunal finds that he has not and would not on return. It accepts the applicant’s claims to have been active on social media, posting pro-Kurdish material (among other things).  However, based on DFAT’s advice that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to posting social media comments critical of the government,[15] the Tribunal finds remote the chance that the applicant would face serious harm (or significant harm) from the authorities on return to Iran as a result.

    [13] Heard 20-22 February and 25 May 2018 and promulgated 12 December 2018

    [14] UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups, January 2019, at 2.4.3 - 2.4.5,

    [15] Ibid at 5.25

23. The Tribunal accepts that Kurds and other ethnic minorities in Iran face a moderate level of official and societal discrimination in Iran, based on DFAT’s advice. However it does not accept that discrimination rises to the level of serious harm or significant harm as defined in relevant international instruments.  Given advice from DFAT that the overwhelming majority of ethnic minority communities are integrated into Iranian society and that Iran’s laws do not discriminate on the basis of ethnicity, as well as the fact the applicant has not experienced particular problems as a Kurd in the past in Iran, the Tribunal finds the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Iran on the basis of his ethnicity.

    Political opinion grounds

24. At the visa application stage, the applicant claimed[16] that during the presidential election (in 2009) he supported the opposition leader (Mousavi), and became interested in supporting the Green Movement, by distributing posters and pictures of candidates.  He stated that because of this his father reported him to the Basij, but he ran away before they could arrest him.  At the Tribunal hearing, the applicant said he attended protests after the elections in Tehran in 2009 but did not experience any problems from the authorities as a result, because he left shortly after.  When asked if his father reported him to the Basij for his support of the Green Movement, the applicant said he cannot remember if his father did, or someone else.  His evidence was somewhat vague and he did not mention any other support to or involvement with the Green Movement.  Nonetheless, given the passage of time, the Tribunal is willing to give the applicant the benefit of the doubt and accepts he may have supported the opposition leader (Mousavi) at the time and participated in some protests against election results in Iran in 2009.  However, on his own evidence he did not experience any problems from the authorities (or anyone else) as a result.  Given these considerations, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm from the authorities on return to Iran because of his limited support to an opposition leader and attendance at anti-government protests which occurred 10 years ago.

    [16] In his statutory declaration dated 20 February 2011

25. At hearing, the applicant said in Australia he has attended some meetings after Turkey attacked Kurds in Syria (and posted comments on social media against the Turkish army); however, he did not provide further details or context.  The Tribunal accepts the applicant attended some meetings after Turkey attacked Kurds in Syria in Australia, but on the limited evidence before it, it is not satisfied that this would result in a real chance of the applicant being seriously harmed or significantly harmed by the Iranian authorities on return, if that became known.  In reaching its finding in this respect, the Tribunal notes DFAT’s advice (as mentioned earlier) that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims: this includes posting social media comments critical of the government.[17]

    [17] Ibid at 5.25

1. The Tribunal has considered if the applicant would be politically active on return to Iran.  Whilst it accepts he attended some anti-government protests in Iran in 2009 in the wake of the elections, and some support to the opposition leader, this occurred over 10 years ago and his involvement was limited.  The Tribunal has also found that his involvement in activities in Australia – such as attending some meetings on Kurdish issues – to be limited and on this basis, the Tribunal does not accept that the applicant would be politically active on return to Iran.  The Tribunal finds the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Iran on the basis of his actual or imputed political opinion due to his activities in Iran, or Australia.

   Returnee from the west and failed asylum seeker

2. The Tribunal has considered if the applicant faces a well-founded fear of persecution or a real risk of significant harm if returned to Iran as a returnee from the west and failed asylum seeker. 

3. As an Iranian citizen, the Tribunal is satisfied the applicant would be able to obtain an Iranian passport and return to Iran.  The Tribunal accepts he may be questioned, given he will potentially re-enter the country on a new Iranian passport.  However, there is nothing before the Tribunal to indicate that such questioning would lead to harm or would create difficulty for the applicant.  For the reasons given earlier, the Tribunal does not accept the applicant had obtained false passports and considers that he left Iran on his own passport (and returned using his own passport in 2013 and again in 2015).   

4. At hearing the applicant said in Australia he attended some meetings after Turkey attacked Kurds in Syria and has posted comments on social media against the Turkish army, likening them to ISIS (for example), which resulted in him being blocked for a month by [social media].  He has also posted pro-Israel material.  (At hearing when asked why he posted pro-Israel material, the applicant said because he loves Israel.)  He provided a selection of tweets and retweets, some in English, which criticise the IRGC, for example.  The Tribunal accepts the applicant has posted some material online which may be construed as anti-Iranian, and pro-Israel.  

5. As discussed at hearing, with regards to treatment of returnees and failed asylum seekers, DFAT relevantly assesses that:

   According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. [18]

   [18] Ibid at 5.25

6. Given such country information, the Tribunal does not accept the applicant would come to the adverse attention of the authorities, such that it would result in a real chance of serious harm or a real risk of significant harm on return to Iran, for being perceived to be ‘westernised’ or having spent considerable time in the west or as a failed asylum seeker, including because he has posted material on social media critical of the government. 

7. Based on the country information set out above about returnees, combined with the fact the applicant did not experience any problems on his return to Iran in 2013 and 2015, the Tribunal finds the applicant does not face a well-founded fear of persecution or a real risk of significant harm as a voluntary returnee to Iran, returnee from the west or failed asylum seeker.

   Inability to subsist

8. At the visa application stage, the applicant claimed to be unable to get a job because he was on a ‘Gozinesh black list’ after they discovered he was a non believer.  He claims the only work he was able to obtain was as [an Occupation], despite having a [qualification].  In addition, he claimed that because his mother’s brother was an officer of the previous kingdom of Iran (approximately [number of] years ago), his chances of employment by association were adversely affected, because he was considered not to support the government.

9. At hearing the applicant said in Iran he sat exams [many] times to gain a government job, but was unsuccessful despite obtaining high marks.  He believes it is because the Gozinesh, who look at a person’s history and background, were against him because he was not religious and because his uncle was a [officer] in the Shah’s time. 

10. The Tribunal accepts the applicant was unsuccessful in obtaining a government job in his field [in] Iran after university, despite sitting a number of exams and, according to his evidence, doing well in those exams.  However, there could be a number of reasons for this and given country information (above, earlier) indicates that it is not uncommon for Muslims not to practice their religion in Iran, the Tribunal does not accept that the applicant was blacklisted by the Gozinesh from obtaining a government job.  On the applicant’s own evidence, he was able to study at a government university in Iran, where he successfully completed a [degree].  Whilst he has not worked in that field, he has had some work experience in Iran and Australia. 

11. Given these considerations, the Tribunal does not accept that the applicant faces a real chance of serious harm including: significant economic hardship that threatens the person’s capacity to subsist; a denial of access to basic services, where the denial threatens the person’s capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The applicant’s fears in this regard are not well founded.  Nor does the Tribunal find the applicant faces a real risk of significant harm in terms of being unable to subsist if removed from Australia to Iran.

    Other protection-related matters

100.   The Tribunal notes at hearing the applicant said he was caught by the Basij with a girl [in] Ilam around a year or less before left the country.  They threatened to detain him if they saw him with a girl again.  The Tribunal accepts this incident occurred.  However, the incident took place over 10 years ago, there was no follow up, and it did not constitute serious or significant harm. Therefore the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm based on this incident that occurred around 10 years ago on return to Iran.

101.   For the reasons above, considered individually and cumulatively, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Iran on any of the grounds advanced, or a real risk of significant harm if removed from Australia to Iran. Accordingly, the Tribunal is not satisfied that the applicant’s removal from Australia would be in breach of its non refoulement obligations under relevant international agreements if his visa is cancelled. 

102.   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.  As the applicant is an Iranian citizen, the Tribunal is satisfied he will be able to return to Iran and does not accept that indefinite detention is a likely consequence of cancellation.

103.   Any other relevant matters: The Tribunal has taken into account the level of possible hardship that may be caused by the applicant if the visa is cancelled, including his mental health issues as discussed above.  It accepts that having lived in Australia for almost nine years it may be difficult to leave and readjust to life in Iran.  However, his wife and other family members remain in Iran and the Tribunal is not satisfied that any difficulties he may experience if his visa is cancelled would be so severe as to result in significant hardship.     

CONCLUSION

104.   The Tribunal considers the provision of incorrect information in this case to be significant given the decision to grant the visa was based partly based on that information. For the reasons above, the Tribunal has found that the applicant’s removal will not engage Australia’s non-refoulement obligations.  For these reasons, the Tribunal is not satisfied the possible hardships the applicant would face sufficiently outweigh the evidence supporting the cancellation of the applicant’s visa, in isolation or in combination with the other considerations as set out above. 

105.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

106.   The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Nicole Burns
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)    giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)    stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)    requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)    visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.