1816349 (Refugee)

1816349 (Refugee) [2019] AATA 4373 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816349
COUNTRY OF REFERENCE:                  Iran
MEMBER:Antoinette Younes
DATE:29 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 29 March 2019 at 4:35pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – religion – Christian convert – incorrect information in application – circumstances of entering Australia – church activity in Iran and Australia – participation in political demonstrations – identity – limited contribution to the Australian community – criminal record – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 99, 101, 107, 109, 424AA, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act which requires a non-citizen to fill in his or her application form answering all questions correctly. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
This matter was before the Tribunal previously (differently constituted) and on 29 May 2018, it was remitted to the Tribunal by consent.
The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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.
Section 438 non-disclosure certificates
The Tribunal observes that on remittal, there was reference to three certificates dated 1 March 2017, however there are only two dated 1 March 2017. Departmental file [number] which the Tribunal summonsed, contains a s.438(1)(a) certificate dated 1 March 2017 relating to folios 54, 56, 71-73, 75-76, 93-94, 130-131, and 140 as well as a s.438(1)(b) notification also dated 1 March 2017 relating to folio 55. At folio 104 of [file number], there are handwritten notes signed and dated 22 February 2010 - “[email protected] 97-104 contain no non-disclosable material”. The Tribunal does not consider this to be a non-disclosure certificate or notification.
In the course of the hearing, the Tribunal discussed with the applicant the existence of non-disclosure certificates. The Tribunal advised the applicant that Departmental file [number], contains a s.438(1)(a) certificate and that in Departmental file [number], there is a s.438(1)(a) certificate and a s.438(1)(b) notification both dated 1 March 2017 and one s.438(1)(a) certificate dated 18 February 2010.
The Tribunal indicated to the applicant that the Tribunal considered the certificates and notification to be valid and explained the reasons. When invited to make submissions, the applicant did not make any but said “okay”. The Tribunal put the gist of that information to the applicant in accordance with procedural fairness requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.
Section 101 of the Act provides that a noncitizen must fill in his or her application form in such a way that:
(a) all questions on it answered; and
(b) no incorrect answers are given.
Section 99 of the Act provides that:
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.
Applicant’s claims
The applicant lodged an application for a protection visa subclass 866 in November 2009 which was granted on 21 January 2011. The applicant’s protection claims are:
·He left Iran because of a well-founded fear of persecution. He was born and raised as a Muslim. He was educated in the Islamic faith. He was of the Shia faith. He did not believe in Islam and did not agree with its teachings.
·One night he had a dream about Jesus and he felt a deep call to become a Christian which took place one year prior to lodging the application for a protection visa.
·Becoming a Christian is considered to be a betrayal of Islam. If discovered, he would be arrested and charged with apostasy. He left because he feared being arrested and put on trial. He has seen articles from Iran that the regime is considering the imposition of the death penalty on Muslims who convert to Christianity.
·His conversion to Christianity has not been accepted by his parents, or his [siblings], all of whom were worried about him and his safety if he had remained in Iran.
·He also left Iran because of his political activities in demonstrating against the results of the election which re-elected the government of the president Mahmoud Amadinejad. He supported Mir-Hossein Mousavi and demonstrated on the streets of Tehran. He demonstrated because he believed that the election process was corrupt. He was a member of an organising committee which planned non-violent demonstrations in the streets of Tehran. Although the demonstrators attacked the bank and set it on fire, he was not involved in such actions.
·The security forces (Ettelat) of Iran accused him of masterminding the attack. The security forces visited his parents’ home and questioned them. He cannot remember the exact dates of him leaving Tehran to Essfahan or when the security forces visited his parents but this might have been 10 days after the election. Although the security forces did not have evidence that he was involved in setting the fire to the bank, he was worried for his parents. Had he been arrested, his parents would have had to pay the cost of repairing the building of the bank. His parents are unwell and the security forces made their health worse.
·He had to make plans to leave Iran and he fears that if he were to return, he would be arrested, imprisoned, interrogated, he would disappear and possibly be executed by the security forces. Having converted to Christianity would mean that he would be considered as a traitor and of being disloyal to Islam.
·He left Iran illegally without documentation as a stowaway on a ship. Having left Iran illegally would bring him to the attention of the security forces if returned to Iran.
In support of his claims, the applicant provided to the Department and later to the former Refugee Review Tribunal (RRT) copies of:
·Undated Certificate of Baptism by [Church Program 1], certified on 25 January 2010. Handwritten and undated report of [Church Program 2]. Letter dated 25 January 2010 from [Church 1] referring to the Certificate of Baptism.
·Letters from [Organisation 1] provided to the RRT, dated 8 April 2010 stating that the applicant is an asylum seeker from Iran who fled for two reasons, namely conversion to Christianity two years earlier and participation in political demonstrations. The letters also indicated that the applicant has been treated at the health centre on a pro bono basis and that he exhibited significant depressive symptoms.
·Letter from a Counsellor at [Organisation 2], dated 17 November 2010, referring amongst other things, to the significant impact of stress due to the applicant’s past traumatic experiences in Iran.
·Membership of sports club as proof of identity.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. The delegate’s decision record indicates that:
1)    When the applicant lodged the application for a protection visa, he provided a completed Form 866C. At question 1 of that Form, the applicant was asked What is your full name? He answered [Applicant Surname 1] as his surname and [Applicant Given Name 1] as his given name. At question 4, he was asked What other names are you known by? (Such as name before marriage, previous name, alias) also write in your own script or characters. If you changed your name, describe why and when you changed your name. The applicant replied “N/A”. At questions 7 and 8 asking about his date and place of birth, the applicant responded [Date 1]…Iran.
2)    Question 28 of Form 866C asking about how the applicant entered Australia, he ticked Stowaway. Question 29 asked about the date of arrival in Australia and the applicant and said [October] 2009. Question 31 asked the applicant to provide details of the type of travel document that he used to enter Australia and the applicant answered No documents, that there was no document number and no country in relation to the document. At question 67, the applicant declared “I do solemnly declare that 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”.
3)    The Department examined facial image comparison that the applicant is not [Applicant Name 1] but in fact a person named [Applicant Name 2] with a date of birth of [Date 2]. [Applicant Name 2] travelled to Australia [in] October 2009 on a [temporary] visa ( [number] issued [in] October 2009), which ceased [in] November 2009. [Applicant Name 2] did not depart Australia and remained unlawful since [November] 2009. [Applicant Name 2] entered Australia with an Iranian passport [number].
Notice of Intention to Consider Cancellation (NOITCC) and response
On 21 December 2016, the Department sent to the applicant a Notice of Intention to Consider Cancellation. The applicant responded by stating that he disputes that there is an issue about his identity and that all information he provided in his application on 21 January 2011 was correct. He confirmed his identity and that he did not wish to change any information that he has provided.
The delegate concluded that the applicant had provided incorrect information when he lodged the application for a protection visa and that the subclass 866 was granted on the basis of that incorrect information. The delegate concluded that the applicant’s visa should be cancelled.
Subsequent to the cancellation of the visa
In a Statutory Declaration to the previously-constituted Tribunal dated 4 May 2017, the applicant indicated the following:
1.1.1.His name is [Applicant Name 2] and he is also known as [Applicant Name 1]. He was helped to come to Australia from Iran by plane and his brother paid money. The people who were paid fixed everything up. He had a passport but they arranged for his visa and everything. He does not know how they arranged all but he does know that he would not have obtained the visa without their assistance. He does not want to say more about this because they are the people who have helped him and saved his life. In Iran such activities are illegal and risky. He has never met those people. When one is blacklisted in Iran, without assistance one cannot leave Iran. This is why he claimed that he came to Australia by boat so that to avoid problems for those who assisted him.
1.1.2.[Applicant Name 2] is his name and the date of birth of [Date 2] is his actual birth date. When he arrived in Australia, he was confused. The decision to grant him the protection visa was based on his mode of departure from Iran and was based on the fact that he was a practising Christian at the risk of harm. When he claimed to be a different person, he had not spoken with the lawyer about his circumstances or received legal advice. He had been to [Country 1], [Country 2] and [Country 3] before leaving Iran to come to Australia. His parents took him out of Iran when he was very young and he had never claimed persecution in any other country. He has never been to a Western country and had no understanding of Australia’s legal system.
1.1.3.He was very anxious from the time he left Iran until he received his Australian permanent visa. He found the protracted period of being in transition very difficult psychologically. He thought as long as he told the truth about what happened to him in Iran, it would not matter how he got to Australia or how he expressed his name.
1.1.4.He was injured at work in 2015 and his condition has worsened. He receives small payments of workers compensation[1] and partial payment of Disability Support Pension. He has been diagnosed with post-traumatic stress disorder in relation to his experience in Iran as well as the difficulties he has experienced in Australia. He has suffered from depression, anxiety and sleep disorders and nightmares. He has trouble remembering and concentrating and he finds it hard to socialise. He wanted to avoid Iranian people because most of them do not like Christians and converts. He has no family in Australia and he has not committed to a relationship since his arrival. He has experienced occasions of homelessness and alcohol misuse. He was homeless for four years but he changed his life and he is now in rental accommodation and sober. Jesus helped him. He also has problems with poker machines and has lost $2000- $3000.
1.1.5.His response to the Department that he is [Applicant Name 1] is not true and he did not arrive in Australia by boat but plane. He applied for protection nearly 8 years ago and no action against him has been taken since it was granted on 21 January 2011 but it was only when he applied for citizenship in 2014 when matters appear to have changed. He does not know why it has taken so long.
1.1.6.He has been found to be owed Australia’s protection under the Refugees Convention. He has been found to be a refugee who has a well-founded fear of persecution for a Convention reason, namely his religion. His circumstances have not changed fundamentally; he has converted to Christianity from Islam and he remains at risk of harm. He is a Christian and he still goes to church. He attends the Catholic dioceses of [City 1] and the Church has services on Sundays at 10 AM. He prays to God 2 to 3 times a day. Jesus is always talking with him through the Bible.
1.1.7.If returned to Iran, he would be seriously harmed. Converts who proselytise are likely to face harm and converts who maintain a low profile are generally less likely to be targeted by the authorities. Converts to Christianity face threats and denunciation from their families. They are also at risk of losing their jobs and/or opportunities for education. Converts can be subject to harassment by the authorities in Iran. If he were to practise his Christian faith in Iran, he could face charges like promoting Christian Zionism, acting against national security, organising and participating in house churches, or distributing Bibles.
1.1.8.Legal aid advised him that upon cancellation of the visa, he could become unlawful and could be detained and removed from Australia. He is terrified of returning to Iran. He could also be barred under s.48A of the Act. He has heard that the regime does not accept returnees who have previously claimed asylum from Australia. If he were to remain in detention, his mental health would worsen. He takes medication.
[1] Copies of WorkCover documents provided, as well as [certificates, letters and notes from medical and allied health practitioners].
The Department received a letter from Mr [A], case officer at [Organisation 3] dated 3 October 2017, subsequent to the matter being finalised by the AAT on 13 July 2017 claiming that:
·The applicant was not given a fair platform to highlight his story and Christianity. The Tribunal[2] was dismissive of the applicant and did not accept his initial story in relation to his journey. There were problems with the way the former Member conducted the hearing. There was no malice or dishonesty in the applicant’s story.
·The applicant has gained his license, employment and he volunteers to assist many in the community. The applicant was able to demonstrate that he was wrongly imprisoned but later proven innocent by the Courts.
·The applicant is a fine role model for survivors who faced similar hostilities. He is honest and passionate about his morals and beliefs of Christianity. The applicant has always identified as a Christian and the author had heard many passages and quotes from the Bible.
·The applicant suffers from post-traumatic stress disorder and the Member did not give him the benefit of the doubt. The applicant is a genuine Christian and has been so for years.
·The applicant has several injuries which require ongoing medical assistance and to cancel his visa in those circumstances would be detrimental because he needs ongoing support.
[2] Referring to previously-constituted Tribunal.
The Tribunal explained to the applicant that the Tribunal is looking at this matter afresh giving regard to all relevant information.
The Tribunal discussed with the applicant the documents provided in support and advised that it would further consider weight.
The applicant’s mental and physical health
In the course of the hearing, the applicant agreed that he had provided the noted answers in response to questions in the application for a protection visa. He gave evidence that he completed parts of the Form himself and that someone else had assisted, although he could not recall the name of that person.
The applicant stated that he suffers from Post-Traumatic Stress Disorder (PTSD) as diagnosed by Mr [B] who is a nurse. The Tribunal questioned the diagnosis and to support the claim, the applicant handed up a document titled “Work Capacity Certificate” dated 2 February 2019 by Dr [C]. He also said that he takes medication for various ailments, including anxiety. The Tribunal indicated to the applicant that the Certificate by Dr [C] shows that in relation to mental health function assessments, the applicant’s attention/concentration, memory (short-term and/or long-term), and judgement (ability to make decisions) are noted as being Not affected. The Tribunal observed that in relation to other functional considerations, Dr [C] had noted “PHy of PTSD” - past history of PTSD. The Tribunal indicated that this would suggest that currently the applicant is not showing symptoms of PTSD.

The Tribunal accepts that the applicant had suffered from PTSD in the past but on the basis of the available evidence, the Tribunal is not satisfied that there is a current diagnosis of PTSD impacting adversely on his ability to give evidence or present his case in full before the Tribunal. However, the Tribunal accepts that the applicant has suffered from a workplace [injury], and that he takes medication for various ailments including anxiety. The Tribunal has given regard to the applicant’s anxiety in evaluating the evidence. The Tribunal is satisfied that the applicant had a meaningful opportunity to participate in the hearing and present his case in full.
The adverse information
In accordance with s.424AA, the Tribunal advised the applicant that a Facial Image Comparison Specialist concluded on 30 June 2015 that there are indications that the facial images of the applicant and [Applicant Name 2] are the same person. The applicant stated that the Department knew all along that he and [Applicant Name 2] is the same person. He said [Applicant Name 1] is the short version of [Applicant Name 2]. The Tribunal notes that it does appear that [Applicant Name 1] is the short version of [Applicant Name 2], however this was not noted in the applicant’s responses to the relevant questions. The applicant stated that he came to Australia by plane but he was not able to disclose everything because he did not want to put others in danger. He said it was a “white lie…a good idea”.
The Tribunal challenged the applicant about his contention that providing incorrect details about his identity was a “white lie” and indicated to him that the Tribunal considered the provision of such incorrect information to be serious. He said he was scared and was in danger. The Tribunal is not persuaded or convinced. One’s identity is fundamental and the applicant’s assertion that it was a “white lie” shows an ability to be untruthful, lacking in credibility and demonstrating disrespect for the law.
The applicant confirmed that he signed the Statutory Declaration at question 67 of the Form 866C where he declared “I do solemnly declare that 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”. He stated that he was new in Australia and did not know anything. He referred to his faith and Jesus. He said he still wants to use [Applicant Name 1] and that he was “directed” not to give his real identity. He said he had to follow instructions. He said he is not remorseful but he is sorry that he did not “follow the rules”. He said however it was a good idea in order to protect others. The Tribunal is of the view that despite stating that he is sorry which is somewhat inconsistent with not being remorseful, the applicant lacked insight and failed to recognise the gravity of being untruthful in circumstances where he signed a Statutory Declaration declaring the truth of the information provided.
The applicant’s claims
Political claims
The Tribunal asked the applicant to explain why he left Iran. He said he had political problems as a result of corruption in the elections. He said he was actively involved in demonstrations and his family was given a hard time as a result. The Tribunal asked the applicant for more details about his activities and he was unable to provide details such as when those demonstrations occurred. He said he could not recall the details. He said he “joined in” the demonstrations and confirmed that he did not have a leadership role. The Tribunal put to the applicant that he has claimed that he was a member of an organising committee. He stated that he was not a member of any organising committee. He said his relatives tried to harm him and he would have had difficulty departing Iran. The Tribunal asked and the applicant confirmed that he departed Iran by airport using his own passport. The Tribunal indicated that if he were of adverse interest to the Iranian authorities, it would have been difficult for him to depart Iran. The applicant said he paid money and his brother fixed everything.
The Tribunal refers to exit procedures from Tehran Airport relevant at the time, he left Iran. Although the following advice refers to a person awaiting a matter at the Revolutionary Court, it nevertheless provides a good summary of exit procedures from Tehran Airport, including checks in place.
There is a comprehensive, multi-layered security procedure for exiting Tehran Imam Khomeini Airport. Passports are checked at least twice during this procedure, and are checked against a law enforcement database to ensure the validity of the passport. A black list of people denied the right to leave Iran is maintained at the immigration counter at the airport, and all departing passengers are checked against this list.
Nevertheless, some sources indicate that it is possible to bribe airport officials and leave Iran without a legal passport or valid documentation, and that this has occurred. Further, it is possible that the black lists only apply to Iranians subject to a specific exit ban, and not to low-profile individuals subject to investigation, on bail, or summonsed to court.[3]
[3] RRT Country Advice Iran – IRN37040 – 2009 protests – Revolutionary Court – exit procedures – bribery – false passport MEK – treatment of returnees, 3 August 2010.
The applicant has changed his story from originally claiming to be a member of an organising committee of the demonstration to having “joined in” with no leadership role. He claimed to have paid money to enable him to exit. He claimed that the Iranian security forces accused him of masterminding the attack on the bank and that they questioned him.
The procedure discussed above indicates that although it is possible to depart Iran with bribery even if blacklisted, it does however indicate that the exit procedure is comprehensive. Given the inconsistency in the applicant’s evidence about his role and the credibility concerns, as well as the fact that the applicant could not provide details about the demonstrations, the Tribunal does not accept that the applicant was involved in any way in any demonstrations, or that he had an adverse profile with the Iranian authorities on this basis.
On the evidence and for the stated reasons, the Tribunal finds that the applicant has been untruthful in making this claim. In reaching those conclusions, the Tribunal has given regard to material provided in support including the letters from [Organisation 1] provided to the RRT, dated 8 April 2010 stating that the applicant is an asylum seeker from Iran who fled for two reasons, including his participation in political demonstrations. The Tribunal is satisfied that the evidence before the Tribunal does not support those claims.
Religious claims
The Tribunal asked the applicant about his Christian faith. He referred to the Catholic Church and said “I can’t explain anymore…sorry”. He said it is not “good to divide Christianity”. He talked extensively about Jesus and the signs of the last days. He said he has had difficult times in Australia, including being homeless and having drinking and gambling problems. He said one his doctors (named) overmedicated him and that there has been racism in the fact that he is still waiting to have surgery. He said he has been helped by Jesus. The Tribunal asked the applicant if he attends Church. He said he has stopped going to Church because the previous Member did not believe him and now he prays in his room.
The Tribunal asked the applicant how he practises his faith. He said he can talk with Jesus easily and he sometimes reads the Bible. The Tribunal asked the applicant about his baptism. He said he was baptised in Iran but he could not recall when. He said he does not wish to talk about matters. The Tribunal indicated to the applicant that if the Tribunal were to conclude that he has engaged in Christian related activities in Australia for the purpose of enhancing his application for a protection claims, the Tribunal would disregard those activities. He said he feels he has done good things and that he has no remorse.
The applicant claimed that in Iran he converted from Islam to Christianity and that he feared persecution in Iran on the basis of that conversion. The Tribunal found his evidence about his practice of Christianity in Australia to be vague and evasive, suggesting fabrication. The applicant has provided documents in support of his religious conversion claim including the undated Certificate of Baptism by [Church Program 1], certified on 25 January 2010, the letter dated 25 January 2010 from [Church 1] referring to the Certificate of Baptism and the letters from [Organisation 1] provided to the RRT, dated 8 April 2010 stating that the applicant is an asylum seeker from Iran who fled for two reasons, including his conversion to Christianity two years earlier. Given the Tribunal’s concerns about the applicant’s credibility and in consideration of the evidence as a whole, the Tribunal has decided to give limited weight to that material.
The Tribunal accepts that the applicant has been baptised in Australia. However, the evidence before the Tribunal indicates a practice of Christianity that is difficult to assess objectively. The Tribunal is mindful and acknowledges that religious faith is personal and there is no objective standard. The issue is that the applicant has claimed to have left Iran for reasons including his claimed conversion, yet his practice of Christianity in Australia appears to be ideological and intangible.
The Tribunal finds it difficult to accept that a person claiming to have fled their home country in fear of persecution because of an alleged conversion, would not engage in the practice of their faith in a manner consistent with that conduct in a country like Australia where religious freedom is respected and upheld. On the evidence, the Tribunal is not satisfied that the applicant is a Christian as claimed or that he converted from Islam to Christianity in Iran (or in Australia), or that he left Iran because of any fear on this basis.
The Tribunal has accepted that the applicant has been baptised in Australia and that in the past he attended Church as he claimed previously. Given the credibility concerns and on the evidence, the Tribunal is satisfied that the applicant has engaged in this conduct in bad faith and not because he is a genuine Christian and that he has done so to enhance his protection claims.
Other adverse information
In accordance with s.424AA of the Act, the Tribunal discussed with the applicant information contained in the Departmental visa application file that the applicant is a “very dangerous” person to be in Australia and that there are internal documents indicating that the applicant might have come from [Country 4] or another EU country by air, that he had euros in his possession, that he was vague about details of his disembarkation from a vessel, that during his protection visa interview, he could not remember any dates, that his English was “surprisingly good” for a bizarre trader who learnt English from a friend in Iran. The applicant said he loves Jesus who does not judge or question people. He explained to the Tribunal that he learnt English in Iran because he was interested.
The Tribunal has not given weight to the claim that the applicant is a “very dangerous” person to be in Australia.
Other claims support a finding that the applicant had provided incorrect information in the application for a protection visa; the applicant has now conceded that he travelled to Australia by plane contrary to the longstanding claim of being a stowaway.
Findings in relation to the provision of incorrect information
Since his arrival in Australia in 2009, until his Statutory Declaration of 4 May 2017, the applicant claimed that his name is [Applicant Name 1], born on [Date 1], and that he came to Australia [in] October 2009, and undocumented as a stowaway.
Those claims are contrary to the applicant’s unequivocal concession on 4 May 2017 that his name is [Applicant Name 2], that [Date 2] is his actual birth date, and that he came to Australia by plane on a visitor visa [in] October 2009, using his own passport.
On the evidence, the Tribunal finds that in responses to questions, 1, 4, 7, 28, 29, 31, 34, and 67 in Form 866C, the applicant provided incorrect information relating to his name, date of birth, how he came to Australia and travel documents. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
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).
Should the visa be cancelled?
In exercising this power and as discussed in the Decision, the Tribunal has considered the applicant’s response to the s.107 notice about the non-compliance, and has given regard to the prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that the applicant’s name is [Applicant Name 2], that [Date 2] is his date of birth, and that he came to Australia by plane [in] October 2009, using his own passport. That information is contrary to the information the applicant provided in the application for a protection visa.
From October 2009 until his admission in May 2017, that is for a period over seven years, the applicant continued to make contrary claims. It is particularly significant that even when he was given an opportunity to respond to the notice of intention to consider cancellation, he continued to provide incorrect information.
The Tribunal gives significant weight in favour of cancellation to the fact that the applicant had provided incorrect information in the application for a protection visa.
· the content of the genuine document (if any)
There is no evidence before the Tribunal of the provision of a genuine document. The Tribunal gives this consideration neutral weight.
· 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
In accordance with s.424AA of the Act, the Tribunal discussed with the applicant that on 18 February 2010, the Delegate refused to grant him a protection visa essentially on the basis of not being satisfied of the applicant’s identity. The applicant lodged a review with the RRT and on 27 August 2010 and although the Tribunal (differently constituted) expressed concerns about the applicant’s true identity as well as the lack of details in his evidence relating to how he had entered Australia, the Tribunal remitted the matter for reconsideration with the direction that the applicant satisfied s.36(2)(a) of the Act. The applicant was subsequently granted the protection visa. The applicant said he has been in Australia for about 10 years. In response, he asked for mercy and compassion.
The Tribunal is satisfied that the former Tribunal (matter number 1001760) who remitted the matter for reconsideration and found that the applicant was owed Australia’s protection did not have the applicant’s concession that he had provided incorrect information. The Tribunal cannot speculate as to what could have or might have happened, however the Tribunal is of the view that had the Tribunal had the correct information, it is reasonable to suggest that the applicant would not have been granted the visa. It is fair to suggest that the Tribunal would have examined the applicant’s claims differently, particularly in the context of his ability to depart Iran using his own passport from Tehran Airport. On the evidence, the Tribunal is satisfied that the visa was granted wholly or partly on the basis of the incorrect information relating to the applicant’s name, birthdate, how he left Iran, how he entered Australia, and the lack of documentation. The correct information is that he entered Australia as [Applicant Name 2], that [Date 2] is his actual birth date, and that he came to Australia by plane on a [temporary] visa [in] October 2009, using his own Iranian passport.
On the evidence, although the Tribunal accepts that the applicant is Iranian, the Tribunal is satisfied that the applicant was granted the visa wholly or partly on the basis of the incorrect information.
The Tribunal gives this aspect significant weight in favour of cancellation.
·the circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant provided incorrect information in the application for the protection visa in his answers to questions 1, 4, 7, 28, 29, 31, 34, and 67 in Form 866C. In those responses, the applicant provided incorrect information relating to his name, date of birth, how he came to Australia and travel documents.
The correct information is that the applicant’s name is [Applicant Name 2], that [Date 2] is his date of birth, and that he came to Australia by plane on a visitor [in] October 2009, using his own passport.
The Tribunal considers the provision of the incorrect information to be serious. The Tribunal gives this aspect significant weight in favour of cancellation.
·the present circumstances of the visa holder
The applicant gave evidence that he has no family in Australia and that in Iran, he has his parents [and siblings]. He said he communicates with family members regularly. The Tribunal asked the applicant about his family in Iran and he said they are okay.
The applicant is currently living in South Australia, having recently moved from NSW. The Tribunal noted the applicant’s recent move to Adelaide from Sydney and asked him the reasons. He said “people” in NSW gave him a hard time.
Although the applicant has worked in the past, he is currently not working. He has been in receipt of workers’ compensation and Centrelink payments. He has no family in Australia.
In Iran, he has his parents and [number] siblings with whom he has kept regular contact. The applicant suffers from physical illness as well as anxiety. The applicant has lodged a citizenship application and he gave evidence that he is still waiting for the outcome. Given the Tribunal’s findings in relation to the visa grant, namely that the visa was granted wholly or partly on the basis of the incorrect information, the Tribunal does not give the citizenship application favourable weight because, the applicant would not have been entitled to the visa and would not have met the eligibility criteria for citizenship grant.
The Tribunal has taken into account the applicant’s circumstances. The Tribunal does not consider that the applicant has established himself in Australia or that he has strong connections, despite being here for over 9 years.
The applicant gave evidence that he has recovered from his gambling and substance addictions but remains to have other mental health issues including anxiety. He receives treatment for the physical injuries he sustained as a result of the workplace incident. The Tribunal gives those aspects favourable weight.
Overall, the Tribunal gives this consideration limited weight in the applicant’s favour.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Up until May 2017 when he provided the Statutory Declaration to the former Tribunal, the applicant continued to provide false information. On 21 December 2016, the Department sent to the applicant the NOITCC. The applicant responded by stating that he disputes that there is an issue about his identity and that all information he provided in his application on 21 January 2011 was correct. He confirmed his identity and that he did not wish to change any information that he has provided.

The Tribunal is critical of the applicant’s failure to continue to be untruthful and acknowledge any wrongdoing up until May 2017. Even in the course of the hearing, he showed no or little remorse claiming that he had to, which in light of the Tribunal’s findings about his claimed political activities and conversion to Christianity, is unpersuasive. The Tribunal is concerned that the applicant appears to have little respect to the laws of Australia, including migration laws.
The Tribunal gives this aspect significant weight in favour of cancellation.
·any other instances of non-compliance by the visa holder known to the Minister
There is no evidence of other instances of non-compliance. The Tribunal gives this consideration some weight in the applicant’s favour.
·the time that has elapsed since the non-compliance
The breach occurred in November 2009 when the applicant lodged the application for the protection visa, over 9 years ago.
Although this is a reasonably lengthy period of time, given the nature of the breach and the Tribunal’s conclusion that the applicant has not established himself in Australia despite being here for over 9 years, the Tribunal gives this consideration limited weight in his favour.
·any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal discussed with the applicant that in delegate’s decision record there is information that since the grant of the protection visa, the applicant has the following criminal record in Australia:
i)   CONTRAVENE DIRECTION OR REQUIREMENT [in] February 2010 – no conviction recorded, fine $100.
ii)     COMMIT PUBLIC NUISANCE [in] February 2010, no conviction recorded, fine $100.
iii)    SERIOUS ASSAULT – ASSAULT/RESIST/OBSTRUCT POLICE OFFICER/PERSON ACTING IN AID OF POLICE OFFICER [in] May 2011, COMMIT PUBLIC NUISANCE [in] May 2011, ASSAULT OR OBSTRUCT POLICE OFFICER [in] May 2011 – ordered to pay compensation of $200 and placed on probation for a period of 12 months.
iv)   COMMIT PUBLIC NUISANCE [in] March 2013 – no conviction recorded/no further punishment.
v)    BREACH OF BAIL CONDITION [in] April 2013 conviction recorded and fined $300.
vi)   BREACH OF BAIL CONDITION [in] April 2013 – conviction recorded and fined $400.
In the Statutory Declaration of 21 December 2016, the applicant acknowledged that he has criminal history as set out in the delegate’s decision record. He stated that he understood that those offences were serious. He expressed shame and noted that his behaviour occurred when he was homeless and intoxicated.
In contrast in the course of the hearing, in response to the Tribunal’s concerns, the applicant laughed and said he pleaded guilty on legal advice. He said he had to but he had done nothing wrong. He said the police broke his toes “unintentionally” when the door slammed. He said he was sick, homeless and did not know the laws of Australia. He said he did nothing wrong. The Tribunal explained to the applicant that it is not the Tribunal’s role to look behind the convictions and that the Tribunal accepts the Court’s findings.
The Tribunal considers the above convictions to be serious and the applicant’s explanations indicate to the Tribunal that the applicant’s explanations do not assist; the explanations suggest the Tribunal that the applicant lacks insight into his conduct and although it is plausible that those offences occurred when he was homeless with drinking difficulties, the Tribunal is of the view that it is reasonable to expect the applicant to show unequivocal contrition which in the Tribunal’s view has not occurred. In those circumstances, the Tribunal has formed the view that the applicant demonstrates no or little regard for the law.
The Tribunal has therefore decided that this aspect weighs heavily against the applicant.
·any contribution made by the holder to the community.
In the Statutory Declaration of 21 December 2016, the applicant indicated that in [City 1], there are many new migrants and about two years ago, he started volunteering with the multicultural centre to help with interpreting. He noted that many of those have been accommodating towards him as a Christian convert and that prior to the cancellation of his visa, he was aiming to obtain interpreting qualifications. He stated that he knows that he has been unable to contribute a lot to the community as he was suffering from a gambling addiction, alcohol addiction, mental health issues and homelessness. He however referred to having worked hard and that he had hoped to be able to serve the community. He expressed gratitude to the Australian community for providing him with a safe country.
The Tribunal is satisfied that the applicant’s contribution to the Australian community is limited. His contribution needs to be balanced and considered in the context of how he has behaved in Australia, particularly his criminal conduct, as well as providing incorrect information.
The Tribunal gives this consideration limited weight in the applicant’s favour.
·other considerations
While these factors 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 lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The applicant has been granted a protection visa, albeit wholly or partly on the basis of the incorrect information that he has provided. The Tribunal accepts that the applicant is an Iranian national. For the stated reasons, the Tribunal has found that the applicant has travelled to Australia using his own passport, after leaving Iran lawfully from Tehran Airport. There is nevertheless a question relating to any potential harm that he could face on his return to Iran in his circumstances.
The Tribunal discussed with the applicant relevant parts of the report of the Australian Department of Foreign Affairs and Trade (DFAT) dated 7 June 2018[4] noting the following:
Conditions for Returnees
5.23 Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
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.
[4] Department of Foreign Affairs and Trade, DFAT COUNTRY INFORMATION REPORT IRAN, 7 June 2018.
The applicant stated that he has destroyed his Iranian Passport. He said nobody can trust the Iranian authorities as they are “liars”. The applicant stated that some of his relatives are working for the Iranian government and that if forced to return, he would be killed. He said he would have to explain how he left Iran. He said the authorities think that he was exposing secrets and that he was involved in many anti-government activities.
The Tribunal has found the applicant not to be credible. On the evidence, the Tribunal does not accept that the applicant’s relatives are working for the Iranian government or that if forced to return, he would be killed. For the stated reasons, the Tribunal has not accepted that the applicant was involved in anti-government activities such as the claimed demonstrations or that he has any adverse profile of interest to the Iranian authorities.
The Tribunal gives weight to DFAT’s assessment above relating to returnees. The Tribunal accepts the assessment that Iranian authorities pay little attention to failed asylum seekers. If the applicant chooses not to return to Iran voluntarily, the Tribunal is satisfied on the evidence that the applicant would be doing so not for reasons of fear of harm or persecution but because he does not want to leave Australia. The applicant can only remain in Australia if he has a valid visa. The Tribunal is satisfied on the evidence that if the applicant were to be returned to Iran involuntarily under the circumstances, Australia would not be in breach of its international obligations, including those under the Convention Relating to the Status of Refugees.
The Tribunal acknowledges that there are also mandatory legal consequences as a result of cancellation including detention and removal, as well as, difficulties in obtaining any further Australian visas. The applicant has claimed that his mental health would worsen if placed in detention. The Tribunal accepts this as plausible and gives this aspect some weight in the applicant’s favour.
The Tribunal appreciates that the applicant has been in Australia for a substantial period of time but for the stated reasons, the Tribunal is not satisfied that his circumstances as accepted by the Tribunal mean that the visa should not be cancelled.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal has assessed that there are aspects in favour of the applicant but there are aspects weighing heavily in favour of cancellation. The applicant has provided significant incorrect information to the Australian authorities and he did so for many years. He has shown no genuine remorse for his criminal conduct in Australia and although he provided explanations, the Tribunal did not find those explanations to be convincing or persuasive. Being homeless with a substance abuse problem are serious issues and the Tribunal appreciates their impact on an individual, however, those problems do not outweigh other considerations as assessed by the Tribunal.
In summary, 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
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Antoinette Younes

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

[2019] AATA 4373

29 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies