1820631 (Refugee)

1820631 (Refugee) [2021] AATA 1426 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820631
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Michael Hawkins AM
DATE:6 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 April 2021 at 3:48pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – nationality – stateless – race – Faili Kurd – religion – conversion to Christianity – failed asylum seeker – harassment by the Basij – false passport – birth certificate – Iranian citizenship of family members – compulsory military service – education and medical services – marriage to an Australian citizen – child of the relationship – Convention on the Rights of the Child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 46, 48, 97-105, 107-109, 116, 140, 438
Migration Regulations 1994 (Cth), r 2.41; Schedule 2
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
COT15 v MIBP (No.1) [2015] FCAFC 190 (22 December 2015)
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234 (30 March 2004)
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 Home Affairs 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 he considered the applicant was an Iranian citizen and was so at the time of his Protection visa application, did not hold the claimed profile of a stateless Faili Kurd living in Iran and was not of interest to the Basij or Iranian government and considered these claims were fabricated to facilitate the grant of his Protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 February 2021 to give evidence and present arguments.
The Tribunal was invited to receive oral evidence from the applicant’s partner and mother of his child, but upon inquiry, the applicant agreed that the witness would not provide any evidence in addition to that which she had provided in her written statement submitted to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation, subject to the applicant’s response to that notice. It 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?
What were the particulars of non-compliance set out in the notice?
On 13 March 2018 the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, that is, the NOICC under s.109 of the Act.
Evidence – Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee
You arrived in Australia [in] October 2009 as an illegal maritime arrival. You applied for a Protection (class XA) Protection (subclass 866) visa on 22 January 2010 and within the application form 866C you provided the following information:
Question 1: What is your full name?:
Family name: " [name]'
Given names: "[name]”
Question 7; Date of Birth: " [DOB 1] '
Question 14: Your relationship status: " Never married''
Question 19: Your citizenship at birth: " Stateless"
Question 20: Your current citizenship: You did not answer the question.
Question 21: Do you hold any other citizenship or are you a national of any other country?: " No"
Question 23: If you are stateless, how, when and why did you lose your citizenship?: " I am Kurdish Failli. The Iranian authorities will not recognise me as a citizen."
Question 36: Give details of all the education you have undertaken (in any country): Total number of years: "O - no education”
Question 41: I am seeking protection in Australia so that I do not have to go back to: "Iran/Iraq"
Question 42: Why did you leave that country?: " Refer to attachment”
Question 43: What do you fear may happen to you if you go back to that country?: "Refer to attachment”
Question 44: Who do you think may harm/mistreat you if you go back?: " Refer to attachment”
Question 45: Why do you think this this will happen to you if you go back?: " Refer to attachment”
Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?: " Refer to attachment”.
As part of your application for a Protection (class XA) Protection (subclass 866) visa you submitted a statutory declaration which included in part:
"My ethnicity is Kurdish and my religion is Muslim Shia. My mother and siblings remain stateless in Iran. My parents were unable to obtain any identification for me making me stateless.
Life in Iran is very difficult. I am harassed by the government authorities and Basij for being Kurdish Faili and I do not have any identification. I have not been able to live a normal life where I can legally work, drive, travel or buy a house. I don't have access to medical assistance and I can't even open a bank account.
As I have never been issued with any identification, I am regularly harassed by the Basij. They would detain me, beat me and hold me at their station for approximately a day until I could raise some bribe money to release me.
I was unable to attend school as I did not have any identification documentation. I fear that the Iranian government will think I am a spy if I return. As I do not have citizenship, I cannot make a complaint as I am there illegally. I have heard that a person in my situation will be hanged. My family will also be in danger. The Iranian authorities will capture me at the airport if I return. I also left the country using a fake passport which is a serious crime in Iran."
Question 64: Crime/Offence - Please give details of any crime or offence that you have been convicted of: " NIA"
65 Declaration: you declared
"The information I have supplied on or with this Part C of the Form Part C of the Form 866 is complete and up to date in every detail.”
Evidence – Interview with Department of Home Affairs 27 January 2017
On 27 January 2017 you attended an identity interview conducted by an Immigration Officer in Queensland. At interview you stated the following:
-    all of your siblings are Iranian citizens.
-    you were previously married and have [children], all of whom are Iranian citizens.
-    you were previously issued with a shenasnameh (Iranian birth certificate) and an Iranian drivers licence.
-    you completed ten years of schooling and attended [a named] High School in Tehran.
-    you served [a period] with the Iranian military as part of compulsory military service.
-    you were previously jailed for approximately [period] in 1997 for [a specified crime].
Evidence – Application for Citizenship Form 1300tEC
On 17 December 2014 you lodged a Form 1300tEC application for citizenship and within the application form 1300tEC you provided the following information:
Question 2: What is your full name?:
Family name: " [name]”
Given names: "[name]”
Question 9; Date of Birth: "[DOB 1]”
Question 14: Present country of citizenship: " Iran"
Consideration regarding evidence
Your Protection visa was granted to you on 27 January 2010 on the basis you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed you were a stateless Faili Kurd from Iran, could not attend any education and have not been able to live a normal life where you can legally work, drive, travel or buy a house. You claimed you did not have access to medical assistance, could not open a bank account, and as you have never been issued with any identification, you are regularly harassed by the Basij. You claimed the Basij would detain you, beat you and hold you at their station for approximately a day until you could raise some bribe money to be released.
You claimed you fear the Iranian government will think you are a spy if you return to Iran and that a person in your situation will be hanged. You claimed the Iranian authorities will capture you at the airport if you return and you left the country using a fake passport which is a serious crime in Iran.
These claims were fundamental to the determination that you were a person to whom Australia has protection obligations.
At an identity interview on 27 January 2017 you advised the Department of Home Affairs all your siblings and your [children] are Iranian citizens and you have been issued with a shenasnameh (Iranian birth certificate). As citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen and were so at time of your protection visa application. You also advised you had [number] years of education in Iran, served [a period] with the Iranian military as part of compulsory military service and were jailed in Iran for approximately [period] in 1997 for [a specified crime]. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services.
In addition, on 17 December 2014 you lodged Form 1300tEC application for citizenship and within the application form 1300tEC you declared you were an Iranian citizen.
I consider the information before me supports that you provided incorrect information in your claims for a Protection visa in order to secure permanent residence.
Particulars of the possible non compliance
Given the evidence outlined above, I consider you have not complied with section 101(a) and 101(b) of the Act because you provided incorrect answers or did not answer to the following questions on the Form 866C - Application for Protection (Class XA) visa:
Question 14: Your relationship status: "Never married''
I consider this answer to be incorrect because you advised the Department at interview on the 27 January 2017 that you were previously married and have [children], all of whom are Iranian citizens.
Question 19: Your citizenship at birth: "Stateless"
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. In addition, in your application for citizenship which you lodged on 17 December 2014 you claimed you are a citizen of Iran.
Question 20: Your current citizenship: You did not answer the question.
I consider that this question should have been answered because you are an Iranian citizen. this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. Citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. In addition, in your application for citizenship which you lodged on 17 December 2014 you claimed you are a citizen of Iran.
Question 21: Do you hold any other citizenship or are you a national of any other country?: " No"
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service.
Question 23: If you are stateless, how, when and why did you lose your citizenship?: "/ am Furdish Failli. The Iranian authorities will not recognise me as a citizen"
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh {Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh {Iranian birth certificate) and serve compulsory military service.
Question 36: Give details of all the education you have undertaken (in any country): Total number of years: "0- no education"
I consider this answer to be incorrect because on 27 January 2017 you attended an identity interview conducted by an Immigration Officer in Queensland and at the interview you stated you completed ten years of schooling and attended the [named] High School in Tehran. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services.
Question 42: Why did you leave that country? In your statement of claims you claimed you were a stateless Faili Kurd from Iran, could not attend any education and have not been able to live a normal life where you can legally work, drive, travel or buy a house. You claimed you did not have access to medical assistance, could not open a bank account, and as you have never been issued with any identification, you are regularly harassed by the Basij. You claimed the Basij would detain you, beat you and hold you at their station for approximately a day until you could raise some bribe money to be released.
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services.
Question 43: What do you fear may happen to you if you go back to that country? In your statement of claims you claimed you fear that the Iranian government will think you are a spy if you return. As you do not have citizenship, you have heard that a person in your situation will be hanged. Your family will also be in danger. You claimed the Iranian authorities will capture you at the airport in Iran and you left the country using a fake passport which is a serious crime in Iran. You claimed you have never been issued with any identification and you are regularly harassed by the Basij and they would detain you, beat you and hold you at their station for approximately a day until you could raise some bribe money to be released.
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services. As you are an Iranian citizen I consider you left Iran with a legal travel document.
Question 44: Who do you think may harm/mistreat you if you go back?: In your statement of claims you claimed you fear the Iranian government will think you are a spy if you return. As you do not have citizenship, you have heard that a person in your situation will be hanged. Your family will also be in danger. You claimed the Iranian authorities will capture you at the airport in Iran and you left the country using a fake passport which is a serious crime in Iran. You claimed you have never been issued with any identification and you are regularly harassed by the Basij and they would detain you, beat you and hold you at their station for approximately a day until you could raise some bribe money to be released.
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services.
Question 45: Why do you think this will happen to you if you go back?; In your statement of claims you claimed the Iranian authorities will capture you at the airport in Iran and you left the country using a fake passport which is a serious crime in Iran. You claimed you have never been issued with any identification and you are regularly harassed by the Basij and they would detain you, beat you and hold you at their station for approximately a day until you could raise some bribe money to be released.
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh (Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services. As you are an Iranian citizen I consider you left Iran with a legal travel document.
Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?: In your statement of claims you claimed you feared the Iranian government will think you are a spy if you return to Iran. You claimed that a person in your situation will be hanged. Your family will also be in danger. You claimed the Iranian authorities will capture you at the airport if you return. You claimed you left the country using a fake passport which is a serious crime in Iran.
I consider this answer to be incorrect because citizenship in Iran is obtained through the paternal line, and because your children and siblings are Iranian citizens, it follows that you are an Iranian citizen. As you have been issued with a shenasnameh {Iranian birth certificate) and served military service in Iran, it follows that you are an Iranian citizen because only Iranian citizens are issued with a shenasnameh (Iranian birth certificate) and serve compulsory military service. As an Iranian citizen you enjoy the rights and freedom of an Iranian citizen in Iran, including education and medical services. As you are an Iranian citizen I consider you left Iran with a legal travel document.
Question 64: Crime/Offence - Please give details of any crime or offence that you have been convicted of: "NIA"
I consider this answer to be incorrect because on 27 January 2017 you attended an identity interview conducted by an Immigration Officer in Queensland. At interview you stated you were previously jailed for approximately [period] in 1997 for [a specified crime].
65. Declaration: you declared
"The information I have supplied on or with this Part C of the Form Part C of the Form 866 is complete and up to date in every detail.”

The delegate notes in the NOICC they considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 14,19, 20, 21, 23, 36, 42, 43, 44, 45, 46 and 64 of the form 866C in his application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with section 101(b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC through his representative on 9 April 2018. The delegate summarised the applicant’s response as follows:
-The alleged incorrect information from being interviewed on 24 January 2017 was as a result of his limited English language ability and he is not able to speak English fluently and was not provided an interpreter for the interview. Given the circumstances it is submitted that the delegate would need to make an informed decision to interview him in the presence of a qualified interpreter. He did not understand the nature of the interview or the context for which the information was requested.
-When he left Iran nine years ago his siblings had no official legal Iranian citizenship. His siblings have all married Iranian citizen spouses and have now obtained Iranian citizenship. He is not able to confirm whether their citizenships were legally obtained and registered or are based on illegal or illegitimate documents.
-He was not married previously in Iran. He had obtained a fake marriage certificate to enable the children to attend school. He had separated from his girlfriend over trust issues and having doubts whether he was the biological father of the [children]. His ex-girlfriend was an Iranian citizen. It appears that his ex-girlfriend has obtained citizenship for her children since he left Iran. He is not able to confirm whether their citizenships were legally obtained and registered or are based on illegal or illegitimate documents.
-He did not understand the question about his birth certificate and drivers licence at interview. He had obtained a fake shenasnameh and fake Iranian drivers licence to present at random police checks and at checkpoints.
-He did not understand the question about his education at interview. He had inadvertently written this information that he attended [a named] High School on his [social media] account simply to complete the education section of his [social media] account. He has not attended any formal education institution and has no formal educational qualification.
-He did not understand the question about military service. He has not attended or completed compulsory military service in Iran. He obtained fake documents indicating that he completed [a period] of compulsory military service to enable him to obtain jobs as employers require the certificate.
-He was detained in 1997. He was arrested by authorities for [a specified crime] but was not convicted.
The applicant submitted the following reasons why the visa should not be cancelled:
-He fears persecution from the Iranian Islamic regime if he is forced to return to Iran. He has no Iranian documents and fears he will be imprisoned for an indefinite period of time.
-He is legally married to an Australian citizen, however he is now separated from his wife. There are certain matrimonial matters to be resolved. He has made a significant contribution to the welfare of his wife in Australia. His wife suffered [injuries] from a vehicle accident in 2009 and he was her Carer from December 2010 to February 2015.
The applicant submitted the following document:
-Copy of a marriage certificate dated [in] 2011.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 21 June 2018. The department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far as the applicant failed to give correct information in his 866 visa application.
The delegate noted that in his response to the NOICC, the applicant provided conflicting information.
The visa holder has provided incorrect information in application form 866C Application for a Protection (class XA) visa regarding his identity and protection claims. The Department has found:
The visa holder claims that he did not provide incorrect information regarding his stateless Faili Kurd status. He claims the confusion has arisen due to his limited English language ability and misunderstanding of the questions being asked of him.
I note that at the identity interview the visa holder was asked if he required an interpreter and the visa holder confirmed he did not. The visa holder was advised that if at any stage he did not understand what was being said, he needed to advise the interviewer immediately as an interpreter could be arranged at any time. I have considered the identity report and there is no indication in the report the visa holder requested an interpreter nor had difficulties understanding what was being asked.
The visa holder also claims he did not understand the nature of the interview and the context for which the information was requested. I do not consider this to be credible as the purpose of the identity interview was clearly stated to him and the visa holder confirmed he understood the information. I also note the visa holder was readily able to provide a range of responses regarding his identity.
The visa holder acknowledges that his siblings are Iranian citizens however they only acquired their citizenship through marriage to Iranian citizens, and only since the visa holder’s arrival in Australia. Under Iranian nationality law, in particular Article 976 in the Iranian Civil Code, a woman will acquire Iranian citizenship by operation of law when she marries an Iranian man. This method of acquisition of Iranian citizenship does not operate should the roles be reversed. That is, it could not have been possible for the visa holder’s brother to have obtained Iranian citizenship through marriage to an Iranian woman as there is no provision in Iranian nationality law permitting it. In addition, the visa holder’s children are Iranian citizens, and as Iranian citizenship may only be passed through patrilineal descent, only he could have passed on their Iranian citizenship status. I note the visa holder has not provided any documentation regarding his siblings’ recent acquisition of Iranian citizenship, which I consider casts doubt on the credibility of the visa holder’s claim.
The visa holder claims that he was not married in Iran and that he has doubts he is the biological father of his ex-girlfriend’s children. He has not denied he is registered as the children’s father. He claims he obtained a bogus marriage certificate to enable the children to attend school in Iran. Regardless of the biological heritage of his children, the fact remains that the Iranian government registered the children as his and they acquired Iranian citizenship by virtue of the visa holder being recognised as their father. I consider the visa holder’s claim that he provided the Iranian authorities with a suite of bogus documents which included his birth certificate and a marriage certificate and used them to register his children for schooling is not credible.
The visa holder claims he did not understand the questions regarding his birth certificate, drivers licence and military service. The visa holder has now attempted to clarify the information and confirm all of these documents were bogus to maintain his assumed identity as Iranian while living in Iran. I do not consider this to be credible when considering the visa holder’s claims of persecution on a daily basis due to his known stateless Faili Kurd status.
I do not consider it credible that the visa holder would fabricate information regarding completion of ten years of schooling on [social media] for the sole purpose of having information in that section of his social media account.
I accept the visa holder’s claim that he was detained in 1997 and not convicted. I do not consider the possible conviction to be material to this cancellation consideration however note this is further information which appears to be in question regarding the visa holder’s history and raises further concerns about credibility.
Having considered the visa holder’s reasons for why he disputes that there was not any non-compliance, I remain satisfied that the ground for cancellation established in Part B of this decision record exists. I consider the visa holder is an Iranian citizen and was so at the time of his Protection visa application. I consider the visa holder does not hold the claimed profile of a stateless Faili Kurd living in Iran and was not of interest to the Basij or Iranian government. I consider these claims were fabricated to facilitate the grant of his Protection visa.
Pre-hearing Submission
The Tribunal received a pre-hearing submission from the representative dated 12 February 2021.
The Tribunal noted the submission contained a number of attachments, including:
·Birth Certificate of applicant’s daughter noting the applicant as father;
·Passport of applicant’s partner;
·Applicant’s Birth Certificate (actual and translated versions);
·Applicant’s Identity Card (actual and translated versions);
·Applicant’s Military Service Card (actual and translated versions);
·Letter of Support from [Church 1] dated 5 February 2021;
·Numerous photos of applicant, partner and child;
·Personal letter of support from general practitioner – statutory declaration dated 12 February 2021;
·Numerous statements of support from satisfied clients of the applicant’s [service] business;
·Undated statement from applicant’s partner;
·Photos evidencing applicant’s heavily tattooed body;
·Statutory Declaration of applicant dated 12 February 2021.
The representative confirmed that the applicant accepts and acknowledges that he provided incorrect information and did not comply with s.101(b) of the Act.
The applicant’s statutory declaration confirmed that the applicant accepts and acknowledges that he provided incorrect information and did not comply with s.101(b) of the Act.
The applicant’s statutory declaration outlined the circumstances in which the applicant provided the incorrect information, in that the applicant relied upon the advice of the people smugglers with whom the applicant travelled to Australia.
The applicant’s statutory declaration also provided a detailed submission as to the harassment the applicant experienced because of his [specified] work in Iran citing examples of that harassment, including having been imprisoned and mistreated by the Iranian authorities, beaten and abused.
The applicant’s statutory declaration also provided a detailed submission as to his conversion to Christianity and his political views and the tattoos on his body.
Post-hearing Submission
The Tribunal received a post-hearing submissions from the representative dated 2 March 2021.
The submission provided detail relating to the prescribed considerations to be considered pursuant to s.109.
It also contained additional information and country information relating to Iranian men with tattoos, failed asylum seekers and returnees and apostacy.
Review Hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The Tribunal conducted a hearing on 19 February 2021. The applicant attended the hearing with his representative.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 27 January 2010. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and his representative that the Tribunal might take the applicant's claims for protection in his protection visa application provided to the Department of Immigration on 22 January 2010 as having been read. The applicant and representative agreed.
Section 438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that the material of document identified as folios 4 – 8 in the department file should not be disclosed to the applicant or the applicant’s representative because it contains information that would reveal confidential investigative methods used to detect breaches of the law.
The Tribunal noted that it had provided to the applicant and representative a copy of the Notice prior to the hearing and they both confirmed having received it.
The Tribunal considered the validity of the Certificate. It determined that to declare the Certificate invalid would have the effect to deter people coming forward to the Department with confidential information and to reveal confidential investigative methods.
However, the Tribunal advised the applicant and representative that the information was contained in an Identity Assessment Report and the information had effectively been summarised in the NOICC and then covered in the delegates decision. The Tribunal advised that it would be giving the material contained in the document weight only to the extent that its contents had been referenced in the NOICC and the delegate’s decision.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.^[6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the applicant did not hold the claimed profile of a stateless Faili Kurd living in Iran and was not of interest to the Basij or Iranian government.

The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant accepts that he provided incorrect information in his Protection Visa application and further accepts that there is non-compliance with s.101(b) of the Act as identified by the delegate in the NOICC.
The applicant states that he is remorseful and apologetic to the Government of Australia.
The applicant states in his Statutory Declaration that he was influenced by people smugglers to lie about his background, and coupled with his fear of authorities, and supporting country information that people smugglers recommend identities to be adopted by refugees, and that identity documents be destroyed or handed to the smugglers, the Tribunal should weight this in favour of the applicant.
The Tribunal noted that despite the admissions made to a delegate on 27 January 2017 during an identity interview as to his true identity, the applicant, through his representative, and in response to the NOICC, on 9 April 2018, again restated his claims to be stateless and recanted the evidence given during the interview based on him not having understood the questions put to him. The Tribunal asked the applicant about that response. The applicant replied that he didn’t know what to do, that he listened to his lawyer and was advised that if he told the truth he would go into detention. He claims that his lawyer acted without authority. The Tribunal suggested that it found that hard to believe and asked the applicant whether he really needed legal advice in order to tell the truth. He replied that unfortunately he did not have enough legal knowledge.
The Tribunal asked the applicant what his position was now. He confirmed that he was an Iranian citizen and that he had lied on his protection visa application.
Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that he did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·the correct information
·the content of the genuine document (if any)
·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 circumstances in which the non-compliance occurred
·the present circumstances of the visa holder
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·any other instances of non-compliance by the visa holder known to the Minister
·the time that has elapsed since the non-compliance
·any breaches of the law since the non-compliance and the seriousness of those breaches
·any contribution made by the holder to the community.
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 correct information.
The applicant claimed in his Protection visa application that he was a stateless Faili Kurd from Iran, could not attend any education and have not been able to live a normal life where he could legally work, drive, travel or buy a house. He claimed he did not have access to medical assistance, could not open a bank account, and as he had never been issued with any identification, he was regularly harassed by the Basij. The applicant claimed the Basij would detain him, beat him and hold him at their station for approximately a day until the applicant could raise some bribe money to be released. The applicant also claimed he feared the Iranian government would think he was a spy if he returned to Iran and that a person in his situation would be hanged. He claimed the Iranian authorities would capture him at the airport if he returned and that he left the country using a fake passport which is a serious crime in Iran.
The correct information is that the applicant is an Iranian national and would have access to the benefits and rights accruing to Iranian citizenship including education and medical services.
The correct information is that the applicant was not beaten by members of the Basij by reason of not having identity documents as the applicant had an identity card. The Tribunal notes he also had a military exemption certificate.
The correct information is that the applicant was not denied a full education but rather on his own evidence studied one year of [a tertiary course].
The correct information is that the applicant’s siblings and [children] are Iranian citizens.
The correct information is that the applicant has been issued with a shenasnameh (Iranian birth certificate).
The correct information is that the applicant had ten years of education in Iran, served [a period] with the Iranian military as part of compulsory military service and was jailed in Iran for approximately [period] in 1997 for [a specified crime].
The correct information is that the applicant departed Iran using his own validly issued Iranian passport. The Tribunal notes from the applicant’s statutory declaration that he states the people smugglers took his passport. Further, in the hearing and in the representative’s post hearing submission, there is no contention about the applicant returning to Iran after having left on a fake passport or illegal travel documents.
The content of the genuine document (if any)
The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.
The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
As has been explained in the delegate’s decision, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.
The representative, in her submission of the applicant’s statutory declaration and post hearing submission, has provided new claims or grounds on which the applicant believes he may be entitled to protection, including as to his conversion to Christianity, apostacy, tattoos that adorn his body, political views and as a failed asylum seeker.
As these new claims were not before the delegate when making the decision to grant a visa, they could not have been considered by the delegate.
The circumstances in which the non-compliance occurred.
The representative explained the circumstances by which the applicant came to make the claims he did. The Tribunal has referenced the explanation about the applicant’s fears of authorities and the role of people smugglers above.
The Tribunal has considered that explanation, but is satisfied that the applicant acted upon the advice of the people smugglers of his own free will. He was an adult at the time of making his application for a protection visa. He formed the view that the advice of the people smugglers to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa.
The present circumstances of the applicant.
The Tribunal noted the applicant’s submission that the applicant now lives with a new partner and has done so since 2015.
The Tribunal has considered the statement of the applicant’s partner attesting to his hard work and being a family man. It notes her comments about how close he is to his daughter and of him being a supportive partner.
The Tribunal notes the applicant’s claims to now being a Christian.
The Tribunal asked the applicant about that claim. It asked when he became a Christian, He replied that he first attended a church in 2012. He went because he needed to feel calm. He stated that he was attracted to the fact that there was no coercion.
The Tribunal noted the support letter from [Church 1]. It noted that he was baptised in 2013. But it also noted that he only attended the church until 2014. The Tribunal asked why that was. He replied that it was his ex-wife’s church.
The Tribunal asked then whether the real reason he became involved with Christianity was because of his ex-wife. He agreed it was.
The Tribunal asked the applicant about his beliefs now. He replied that he attends different churches, including [Church 2]. Asked who he attends with, he replied friends. Asked how often, he replied irregularly, when he feels the need.
The Tribunal asked the applicant whether his partner goes to church. He replied she does occasionally, but hadn’t attended since the birth of the child.
Asked whether the child had been baptised, he replied she had not.
The Tribunal asked the applicant whether he had a baptismal certificate. He said he did not.
The Tribunal noted that he had not made any mention of his Christianity in his interview with the delegate in relation to his citizenship. He replied that he didn’t mention it as he believed it to be a private matter.
The Tribunal referred to the applicant’s application for citizenship. It noted Question No. 32 which stated that an applicant may choose to make the pledge of commitment in the form of an oath or in the form of an affirmation.
The Tribunal noted the applicant’s response – “Pledge No. 2 – affirmation without the words “under God”.
The Tribunal commented that was an unusual response for a Christian to make. It asked how he would reconcile that response with his Christian beliefs. He replied that he didn’t want to show off his beliefs. The Tribunal ventured that was an odd response for a Christian to make. He replied that it hadn’t occurred to him to do so. He said some people swear to God but lie through their teeth.
The Tribunal asked the applicant what his concerns were in relation to Christianity. He stated that he would not be allowed to participate in Christianity in Iran.
The Tribunal considered Country Information from the DFAT Report.
Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination, and felt comfortable practising their faith.
DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.
The Tribunal determined that if it accepted that the applicant had actually converted to Christianity, then it would appear that he could practice his new faith in Iran if he chose to do so.
The Tribunal will deal with the matter of his claimed conversion from Islam below.
The subsequent behaviour of the applicant concerning his obligations under Sub Division (c) of Division 3 of Part 2 of the Act.
The Tribunal noted from the decision of the delegate, that the applicant, during his identity interview pursuant to his application for citizenship, was advised that the department had seen information on his [social media account] that suggested he had ten years of education in Iran and had attended a particular high school. Following this, the applicant had then made a number of admissions as to his true identity.
The Tribunal notes the applicant’s apology and remorse and even the comment that he had lived with the burden of this dishonesty, but it is clear to the Tribunal that the applicant did not voluntarily offer any admission or confession, rather he remained silent about his true identity and it was only by reason that he had irrefutable facts put to him that he confessed to his deception.
Further, upon service of the NOICC upon him, he then responded by recanting all of the admissions he had made as to his true identity.
In a pre-hearing submission, the applicant again made admissions to his true identity, and again expressed his remorse and regret at having taken wrong advice and spoke of the relief of this burden having been lifted off his chest.
The Tribunal notes again that the applicant was an adult, and an educated adult, at the time he made his entry interview and application for protection. Furthermore, he was an adult when he recanted his admissions and rather than accept responsibility, sought to blame advisers for incorrectly advising him and stated they acted without his authority.
Any other instances of non-compliance by the applicant known to the Minister.
The applicant advised that there had been no breaches of his visa terms.
On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance.
The Tribunal notes that his visa was cancelled in June of 2018 and that more than two years have since elapsed. It also notes that incorrect information first occurred when making his protection visa application in January 2010.

100. The Tribunal is sympathetic to that.
101. However, the Tribunal is also mindful of the fact that the applicant has only been in Australia for this period of time by reason of his provision of incorrect information to facilitate the grant of a protection visa. The Tribunal is also mindful of the significant non-compliance that has occurred, and the recanting of admissions made to delegates during this process.
102. Accordingly, the Tribunal’s sympathy is tempered.
Any breaches of the law since the non-compliance and the seriousness of those breaches.
103. The applicant advised that he has not breached any law.
104. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community.
105. The applicant has provided copies of letters from satisfied clients of his [service] business. It is clear he has been employed, has run his own successful business and paid taxes.
106. The Tribunal noted there were no submissions as to community participation.
107. The Tribunal has considered the references put forward by the representative, noting that the applicant has been a hard and diligent worker.
108. The Tribunal notes that the applicant has many supporters praising his talents and work ethic.
109. The Tribunal accepts that the applicant has made a contribution to the community by virtue of providing valuable and reliable work, and by employing others.
110. The Tribunal accepts that the applicant has made friends and formed a connection with the Australian community.
111. The Tribunal accepts that the applicant has integrated into his community and has formed a number of friendships.
112. The Tribunal notes that the applicant married in 2011, but that marriage ceased in 2015 and he was divorced in 2019. It also notes that he acted as a carer for that wife.
113. The Tribunal notes that the applicant has another partner and has fathered a child with her. The Tribunal will consider this aspect further below.
Whether there would be consequential cancellations under s.140.
114. There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision.
115. Should the visa be cancelled, the applicant would be subject to Section 46(1) of the Act, which bars him from making an application for a further visa. Also, as an IMA the applicant would become an unlawful non-citizen and would be subject to Section 46A(l) and barred from making a valid application for a further visa, including bridging visas, and may be detained. Further, a consequence of cancelling the Protection visa is that he would become subject to Section 48A(1B) of the Act barring him from making a further application for a Protection visa while in the migration zone. The applicant will be unable to make any visa application while in Australia unless the Minister intervenes and lifts the decision bar.
116. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and may be liable for detention under Section 189 of the Migration Act and removal from Australia under Section 198 of the Act. However, this can be mitigated by voluntary departure.
117. However, the Tribunal considers these to be standard mandatory legal consequences as a result of a visa cancellation outcome and gives these considerations minimal weight in the applicant's favour.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
118. The non-refoulement obligations of Australia are not required to be taken into account as a mandatory consideration when determining whether to cancel a visa.[9] The extent to which the Tribunal must go into claims that Australia has protection obligations to the person when considering the discretion to cancel the visa will vary depending upon the circumstances of the applicant.
[9] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
119. In COT15 v MIBP (No.1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa.[10] The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.[11]
[10] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015).
[11] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
120. The applicant stated that if he returns to Iran he will not face harm for the reasons he had originally claimed in his protection visa. He claims a new set of grounds.
121. The applicant maintains that he will be persecuted by reason of his conversion to Christianity, his political views, and his tattoos.
122. The representative maintains that the applicant will be persecuted by reason of apostacy (conversion from Islam) and being a failed asylum seeker and returnee.

123. The Tribunal accepts from photos produced, that the applicant is heavily tattooed.
124. The Tribunal asked the applicant about his tattoos. He stated that he got them for their artistic value. He said he likes them. He said they are of [characters] and the government may not like them.
125. Asked to explain, he replied that the government will think him a trouble-maker with anti-religious views. He said he will be targeted.
126. The Tribunal considered Country Information from the DFAT Report.[12]
[12] DFAT Report, paragraph 3.137
DFAT assesses that authorities are far more likely to target women than men for dress code violations. Where there have been incidents of harassment of men for violating the dress code, DFAT assesses these were most likely the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities) or because the individual had come to the attention of the authorities for other activities, particularly political activism. DFAT assesses that the restrictions the dress codes place on men do not amount to discrimination. DFAT is not aware of the authorities targeting people on the basis of a ‘Western’ appearance or for having visible tattoos. While such appearances may be frowned upon by more conservative Iranians, DFAT assesses that people of ‘Western’ appearance, including people with visible tattoos, face a low risk of official and societal discrimination.

127. Put to the applicant, he replied that he will be targeted because he has been in Australia for 10 years, has a criminal record and being known to the authorities.
128. The Tribunal suggested to the applicant that whilst he has a record, he has served his time for [specified crimes]. He replied that he will always be picked on if the authorities don’t like him.
129. The Tribunal has considered the representative’s submission and articles and reports referenced therein. It has also considered the cumulative effect of the applicant’s previous arrest with his tattoos, but notes the speculative nature of the possibility of discrimination or harm as a consequence of the same.
130. The Tribunal does not accept, on the basis of country information that it accepts, that the applicant will be persecuted by reason of his tattoos, now, or in the reasonably foreseeable future.
131. The Tribunal asked the applicant about his practice of Islam in Iran when he lived there. He replied that he never practiced Islam in Iran. Asked if he had any issues because of that, he said he did not.
132. The Tribunal is satisfied this accords with Country Information sourced from the DFAT Report.[13]
[13] DFAT Report, Paragraphs 3.70 and 3.72
Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their nonbelief face a moderate level of official and societal discrimination.

133. The Tribunal is satisfied that the applicant has not practiced Islam whilst he was in Iran. It is also satisfied that he won’t seek to practice Islam again upon any return to Iran.
134. The issue is whether he would renounce his Islam religion or renounce it in such a way that it became apparent to the authorities. Has his “conversion” to Christianity amounted to a form of renouncement and would it be noticed?
135. The Tribunal has considered very carefully the applicant’s evidence in relation to his claims to have become a Christian.
136. It noted his somewhat inconsistent recount of his reasoning for becoming a Christian, from wanting a place to feel calm to actually becoming involved due to his ex-wife. It noted the letter from the pastor of the church who opined that he felt that the applicant was genuine in his beliefs when he was Christened, but could also only comment up to the time the applicant left the church in 2014.
137. The Tribunal found the applicant’s evidence about his ongoing involvement with Christianity since 2014 less than compelling. He attends church only occasionally, when he feels the need. He has not sought to have his daughter, who is now [age] years old, christened into the Christian faith. His partner has not attended since the birth of the child. At the end of the hearing, he reiterated his belief that a church provided a calm place for his mental health, yet provided no evidence of his need for that place of calm.
138. The Tribunal, after long deliberation, is satisfied that the applicant only engaged in Christianity, and got baptised, as he said, for the sake of his ex-wife and her family. He is now divorced. He has not introduced his new partner or his own daughter into the faith. He has no genuine religious faith or belief, either in Islam or Christianity.
139. The Tribunal is satisfied that the applicant does not have a genuine Christian faith now, or will have in the reasonably foreseeable future. As such, the Tribunal is satisfied that the applicant will not renounce his Islam religion, he will simply continue to non-observe.
140. Contrary to the representative’s submission, s5J(3) will not be enlivened, as he will not be modifying his behaviour. He will not be altering his religious beliefs, including by renouncing a religious conversion, or concealing his true religious beliefs, or ceasing to be involved in the practice of his faith.
141. The Tribunal also considered the applicant’s claims in relation to being a failed asylum seeker. Again, the Tribunal considered the representative’s submissions carefully, including reference to the book and example provided of a returnee being held at the airport for three days.
142. But the Tribunal is persuaded by the DFAT Report in relation to returnees.[14]
[14] DFAT Report, paragraphs 5.29 – 5.31
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. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
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), protesting outside an Iranian diplomatic mission, 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. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

143. The Tribunal saw no evidence of any political activism or communication of political views on the part of the applicant.
144. An important consideration for the Tribunal is the fact of a child of the relationship between the applicant and his partner and the consequences of the removal of the applicant from Australia to Iran, on both the partner and the child.
145. The applicant’s partner speaks of her concern for herself, but more importantly the child. She spoke of the closeness of father and daughter and her concerns for the mental health and consequences on the child in the event of separation.
146. The applicant, in his evidence, spoke of his daughter being the love of his life. He spoke of his partner being supportive of him and the child. Asked about the consequences of his returning to Iran, he stated there would be psychological consequences for all of them. He added that they are the only two people in his world.
147. The Tribunal must give due consideration to the rights of the child and family unity obligations.
148. Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. "

149. Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State ... "

150. Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:
"Obligations apply to persons within Australia's territory and also to persons within Australia's jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)... "

151. The Australian courts have found that generally it is in the best interests of the child to remain with their family. The applicant has [number] children, [number] born in Iran who continue to reside in Iran and one infant child who was born in Australia in October 2019 to his partner of six years.
152. In relation to the infant child, the Tribunal considers the child would only be accustomed to Australian life having spent all of her short formative months in Australia. It is possible that should the applicant’s partner and child follow him back to Iran she would likely adjust to life in Iran.
153. The applicant has stated that if his visa is cancelled, his partner and child will not go to Iran. The Tribunal accepts that is the likely outcome. Accordingly, the Tribunal considers that cancellation of the applicant's visa will result in separation of the family unit as all remaining family members will not be considered for cancellation under Section 140(2) and would not be obliged to depart Australia together.
154. The Tribunal accepts that given the strength of the bond between father and daughter and having considered the letters of support to that effect, the statement of the applicant’s partner as to support provided by the applicant to her and the child, it would be in the best interests of the child that the family not be separated.
Conclusion
155. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa, notwithstanding his present apology and remorse.
156. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on his return.
157. The Tribunal has also considered country information relating to returnees to Iran, noting that the IOM runs a program to assist voluntary returnees to Iran and provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.[15]
[15] DFAT Report, paragraph 5.27 – 5.28
158. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[16]
[16] DFAT Report, paragraph 5.29 – 5.31
159. The DFAT Report also notes that authorities pay little attention to, and that it is not aware of prosecutions for, converting to Christianity or proselytising while abroad.[17]
[17] Ibid
160. As decisions go, this one is line ball, and the Tribunal acknowledges that finding the right balance in this case has been a complex one. The Tribunal has not rushed into this decision and has revisited it regularly. On the one hand, it is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) his claims for advantage. It is mindful that each of his “new” claims have failed to persuade the Tribunal, either individually or cumulatively, that he will be persecuted now, or in the reasonably foreseeable future, if he returns to Iran.
161. However, the Tribunal notes that the applicant has resided in Australia for around eleven years and this is a very substantial period of time. It also notes that the applicant has made connections with the community. The Tribunal also notes that he has enjoyed the benefits of the health and employment systems, benefits which the Tribunal has not been persuaded he could not obtain in Iran.
162. The Tribunal notes that the applicant has run a very successful [service] business and has accumulated a great number of online supporters of both his business and his own hard work and ethics.
163. The Tribunal is very mindful of the impact separation will have on his partner with whom he was involved well before the visa cancellation. But the Tribunal is very mindful of the impact separation will have on the applicant’s daughter.
164. The Tribunal is also very aware of the differences in lifestyle expectancy should the applicant’s partner and daughter seek to join him in Iran.
165. 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.
166. Having had long and due regard to all the relevant circumstances, as discussed above, but particularly to the best interests of the child (not the father), the Tribunal concludes that the visa should be not be cancelled.
Overall conclusion
167. 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 not be cancelled.
DECISION
168. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins AM
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.

[2021] AATA 1426

6 April 2021

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