1835225 (Refugee)

1835225 (Refugee) [2019] AATA 5848 (22 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835225
COUNTRY OF REFERENCE:                   Iran
MEMBER:Meena Sripathy
DATE:22 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 22 May 2019 at 1:24pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – religion – conversion to Christianity – threat of apostasy – voluntarily returned to Iran – misunderstood question on incoming passenger card – compassionate and compelling reason for visit – use of Iranian passport – non-compliance in the way described in the s 107 notice – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.43; Schedule 2
CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Saleem v Migration Review Tribunal [2004] FCA 234
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v Minister for Immigration [2005] FMCA 27

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 s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled. 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 14 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
A notice of intention to consider cancel (NOICC) was sent to the applicant on 4 June 2016, informing the applicant that the delegate considers that he did not comply with s101(b) of the Migration Act. The notice particularised the possible non compliance in the following manner: That he provided incorrect answers in:
·Question 41 of Part C of Form 866 (being his answer that he was seeking protection in Australia so that he did not have to go back to Iran).
·Question 44 of Part C of Form 866 (being his answer that he thinks Iran’s Government and Islamic society may harm or mistreat him if he goes back).
·Question 45 of Part C of Form 866 (where he answered in response to why he thinks this will happen to him if he goes back, that it is because it is law and has happened to many people)
·Question 46 of Part C of Form 866 (where he answered that the authorities of that country will not protect him because they are the persecutors)
The delegate considered the above answers appeared to be incorrect because he voluntarily returned to Iran on at least 3 occasions for a total period of 53 days and he engaged with the Iranian authorities to obtain a new passport in his true identity without any issues of his protection claims arising.
Under the heading “Evidence of non compliance” the NOICC referred to the following information provided by the applicant:
·At question 42 of Form 866 he answered that he left Iran to be able to learn about Christianity which is impossible and very dangerous in Iran.
·At question 43 of Form 866 that he feared the death penalty for himself because he prayed for Jesus Christ and changed to Christianity which means the death penalty in Islamic rules.
·In a statement dated 19 March 2012 he claimed he had become Christian in Australia and he applied for protection because returning to Iran would be a be a problem because apostasy is punishable by death.
·At his Departmental interview on 21 March 2012 he admitted that a friend in Iran had advised him that he could easily obtain permanent residency if he went to a Christian church in Australia and even though his original interest in Christianity had been contrived he converted to Christianity approximately one month after attending church.
·On review before the Refugee Review Tribunal, he made new claims that his [Relative A] is an [official] [in] Iran who was aware of his conversion after the Iranian authorities monitored his phone calls with his wife. He claimed the Iranian authorities advised his wife that she should make him return to Iran and repent and that he and his family received multiple threats of death and serious physical harm after he became known to the Iranian authorities to be a Christian convert, and that the Iranian authorities were tracking him and the family.
·Since the grant of the protection visa on 4 March 2013, he has departed and returned to Australia on 4 occasions between 2013 and 2016 ([in] October 2013; [in] July 2014, [in] March 2015 and [in] July to [in] August 2016).
·In his incoming passenger cards [in] July 2014 and [in] March 2015 he gave the response Iran to the questions about what country he spent most time abroad and in which country he boarded this flight.
·He provided a statement dated 16 October 2016 in the context of his wife’s Partner visa application made on 8 July 2016 in which he referred to obtaining a passport from the Iranian Consulate General in Sydney issued [in] 2016 to visit his mother who was seriously ill. The statement said he visited [City 1] in Iran to see his mother and he spent 35 days there with her.
The NOICC stated that this information that the applicant returned to Iran on three occasions since the grant of his protection visa for a total period of approximately 58 days without issues claimed in his protection visa arising, and his voluntary engagement with the Iranian authorities on numerous occasions including obtaining a passport, indicates that did not have the profile of interest with the Iranian authorities as a Christian convert and an apostate.
On 24 June 2018 the applicant, through his (then) representative, provided a response to the NOICC and supporting documents. In his response the applicant provided the following information and explanations:
·The applicant denied having given any incorrect information in his Protection visa application and maintained his protection claims as stated.
·He provided information that his travel from Australia [in] October 2013 was to [Country 1] and not Iran, to visit his wife and [child] in person, consistent with his protection claims of conversion to Christianity and apostasy laws in Iran.
·[In] July 2014 he travelled to [Country 2] (not Iran), to see his wife, consistent with his protection claims of conversion to Christianity and apostasy laws in Iran.
·[In] March 2015 he travelled to [Country 3], also to visit his wife and [child] and consistent with his protection claims of conversion to Christianity and apostasy laws in Iran.
·He travelled to [Country 4] [in] July 2016, arriving [in] July 2016 with an intention to visit his mother and family there but her health deteriorated and she was admitted to hospital. The applicant travelled to Iran with the assistance of his brother who paid bribes to officials to guarantee his safe entry and exit from the country.
·He states that he applied for the Iranian passport only for ID purposes and had no intention of going back to Iran until he finally used this passport to enter Iran from [Country 4] due to the exceptional circumstances.
·His responses on the incoming passenger cards were due to a misunderstanding by him of the question, as he meant to indicate his nationality as Iran.
·He provides evidence to support his claims that he travelled on three occasions to third countries and not Iran.
Submissions are also made addressing the issue of the discretion: He lives with his wife and [child] in Australia and cancellation of the visa will also affect them. The applicant has lived peacefully and has been hard working and law abiding in Australia. He has never breached any migration or other laws or visa conditions. The situation for Christian converts and apostates remains the same in Iran and the applicant’s return to Iran on one occasion in 2016, for a compassionate reason, does not undermine his claims.
The following evidence was submitted with the response to the NOICC:
·Copies of all pages of his Iranian passport issued [in] 2010 evidencing entry and exit from [Country 1] in 2013 and [Country 2] in 2014;
·his Australian visa evidence card [document number] and Titres de Voyage issued in 2013 and 2016 ([number] and [number]);
·travel itinerary for return trip to [Country 3] via [a city] [in] March 2015 [to] March 2015;
·Iranian passport issued [in] 2016 in Canberra and evidencing visa for [Country 4] issued [in] 2016 and entry and exit stamps for Iran in 2016;
·Letter from [Dr A] regarding the applicant’s mother, [MS B], with English translation;
·support letters from [Ms C], [Mr D], [Mr E], [Dr F] and [Ms G];
·applicant’s wife’s Iranian passport ([document number]) issued [in] 2014;
·documents relating to the applicant’s [child] and wife’s education.
Evidence before the Tribunal
On 30 April 2019 the Tribunal received a submission and supporting documents from the applicant’s (new) representative:
·A Statement of the applicant. In summary the statement provides the following information: The applicant denies giving any incorrect information to the Department or Australian government and maintains the protection claims he made in his Protection visa application. He reiterates submissions and information previously given explaining the trips made outside Australia between 2013 and 2016 since he was granted protection. He provides further information about the one ‘informal’ entry made to Iran in 2016 to see his seriously ill/dying mother, specifically that his entry and exit was never put into the electronic portal system of the government , even though they ‘stamped’ his passport. He has never returned to Iran since that one visit in 2016 because the government continues to persecute apostates and he has no intention of going back for that reason until there is a change of regime. His new passport was obtained by postal application and he obtained this because Iranians can get entry visa privileges in [Country 1]. Because his mother’s health was deteriorating in 2016, she could not make it to [Country 1] so he decided to fly to [Country 4] but in the end she could not make it there also. He only ever went to the Iranian border town of [City 1] to visit his mother. He was assisted by his brother in [City 1] to enter the country because his brother has good connections there. His previous migration agent has now been suspended by MARA and appears to have failed to convey important aspects of his explanation now provided. The applicant states that he is and continues to practice his Christian faith in Australia and continues to fear harm in Iran on this basis.
·A Statement of the applicant’s wife. She confirms she travelled to [Country 3], [Country 2] and [Country 1] in 2013, 2014, and 2015 to see the applicant because he was unable to return to Iran due to his religious conversion. She confirms that the applicant is of the Christian faith and continues to hold Christian beliefs. Their [child] is now also actively associated with Christian youth activities and is free to choose her religion. The applicant’s wife states she does not practice any faith now and has given up her hijab since arrival in Australia. During the time the applicant travelled to Iran through [City 1] in 2016 he was assisted by his brother’s contacts with border officials who ensured he entered secretly. He avoided detection throughout the period he was there by staying only in his mother’s house.
·A Statement of the applicant’s [child]. She confirms that she travelled with her mother to [Country 3] and [Country 1] to visit her father prior to 2016 because he could not return to Iran. She confirmed that during the 35 days he was in Iran in 2016 he stayed at his mother’s house to avoid detection by anyone because his life was at risk. She has been having some interactions with a Christian Youth Group in [Suburb 1] this past year. If her father’s visa is cancelled it would also have an adverse effect on her psychological well-being.
·Letters from [Dr H] relating to the applicant, his wife and [child] exhibiting a range of symptoms consistent with mental health conditions.
·Various other documents previously submitted to the Department or on the Department file, including a copy of the RRT decision relating to the applicant’s Protection visa review, copies of his Iranian passports and Australian travel documents and itinerary relating to the 2015 trip.
The submission from the representative makes the following points (in summary). There is strong evidence that the applicant’s original place is [City 1] an Iranian border city. There is no evidence of non compliance by the applicant and in fact evidence is to the contrary. The RRT found the applicant to be a genuine and truthful convert and owed Australia’s protection and the applicant continues to maintain his claims made in that application. The applicant has submitted explanations and evidence that he did not return to Iran in 2013, 2014 or 2015, but rather to third countries to visit his wife and [child], and this supports and is consistent with his protection claims. The delegate failed to consider the circumstances of the applicant’s visit to Iran in 2016 and explanations for how he avoided detection. The applicant has spent many years in Australia, has strong ties here now and cancellation of the visa would cause him and his family great hardship. There is no evidence of non compliance, or any other breach of the law by the applicant since he has been in Australia. He is a hardworking, honest person. Cancellation of the visa would have significant adverse effects on his wife and minor [child], and consideration should be given to the Convention on the Rights of the Child. The applicant voluntarily disclosed to the Department his return to Iran in 2016 in his statement made in support of his wife’s Partner visa application, including the circumstances of that visit. This is relevant to his credibility and consistency of his claims.
At the hearing the applicant told the Tribunal he lives with his wife and [child] in a rented property. He works at a [business], where he has been employed for the past seven years. He is currently working seven days a week due to financial pressures. He has had only three days off since the beginning of the year, including today. Prior to this year he was working five to six days a week, usually having Fridays off. He has consistently worked Saturdays and Sundays for many years because the owner trusts only him to open and close the shop and operate the safe. The applicant’s wife studies English and does not work. His [child] is in [year level] at high school.
He has no family in Australia. In Iran he has his mother [and various siblings]. One sister lives in Tehran. His mother [and other siblings] live in [City 1], Iran where he also lived before he came to Australia. The applicant’s wife has [number of siblings] in [City 1] and [number] in Tehran. After the applicant left Iran in 2012, his wife and [child] went to live in an apartment block where her mother and sister live. Her sister owns several apartments in that same block and they lived in one of these. Later they purchased one of the apartments, with help from her mother. His wife’s other sister also later came to live in one of these apartments, after she separated from her husband. This is the husband who worked for the [government]. His sister in law was having problems with her marriage and separated from her husband but she cannot divorce him, because of his position in the [government].
The Tribunal discussed the applicant’s protection visa application and claims he made. He confirmed that he arrived in Australia [in] January 2012 and lodged a protection visa application on 18 January 2012. He said he came to Australia for a better life. He went to a church with a view to seeking residency in Australia. He was a religious person in Iran. He had been to Mecca and visited shrines as is expected of Muslims in his country. The only reason he went to the church in Australia at the beginning was to support his claim for residency. However, after he learned more, he gradually came to the realisation that the religion he believed in throughout his life was false and his faith in Christianity deepened. Eventually he came to know God and he converted to Christianity. The Tribunal asked the applicant when this occurred. He said it was a few months after he arrived and had attended the church. He said he cannot recall the exact date, because he has memory issues. The Tribunal noted that he signed his protection visa application form on 18 January 2012 and made reference to fearing return to Iran on the basis of Christianity. In a statement dated 19 March 2012, he referred to learning about and accepting Jesus. He was interviewed by the delegate on 21 March 2012 and during this interview he admitted that his original interest in Christianity was contrived with a view to obtaining residency in Australia but that since then he has been convinced about the religion and genuinely converted to Christianity about one month after he started attending church. The Tribunal asked the applicant if he had converted at the time of the interview with the delegate. He said he had not at this time. The Tribunal noted that he subsequently provided a Statement dated 22 November 2012 in the context of the review of the decision to refuse his protection visa at the Refugee Review Tribunal and asked if he had converted by this time. He said came to experience his newly gained faith some months prior to making this statement. He confirms he was baptised at the church. He attended Bible Certificate classes for a period after this, but he did not receive any certificate and has no evidence to support his attendance in this course. The Tribunal asked the applicant how he was able to attend church and bible classes given his evidence earlier that he was working full time for the past 7 years. He said at this time he was working at a [specified] shop part time and he was able to attend church and the classes.
The Tribunal asked the applicant the name of the church he attended. He initially referred to it as [name], then mentioned Baptist church, but could not recall the complete name. It asked him if he attends church now. He said he cannot attend church every Sunday now but goes sometimes to a church in [Suburb 2], he cannot recall the name. The Tribunal asked how he does this given his evidence that he has been working seven days a week this year. He said he goes to work early and then tells the owner that he must attend church for two hours and returns to work after that. He doesn’t do it often. The Tribunal asked when he stopped attending church regularly. He said he stopped when he started the process to bring his wife and [child] to Australia, because there were financial pressures on him and he needed to work. This was about three years ago. Before that he was going to church in [Suburb 3] once a fortnight or so. He stopped attending the Baptist church around 4 years ago.

The Tribunal noted that with his response to the NOICC he provided some references from people attesting to his good character but none are from members of any Christian community and this, together with the fact that he stopped going to church regularly after being granted a protection visa may lead the Tribunal to have doubts about his Christian claims. In response the applicant said he was going to church after he was granted the visa and only stopped later due to financial pressures. The Tribunal put to him that it may find he stopped going to church because he was never a genuine Christian. The applicant responded that he is not a liar and has never lied in his life. He said he is living with Jesus and he is happy now. He said if he is not a genuine Christian he would never have encouraged his [child] to get involved with a Christian group. She has been attending a group [weekly evening] near [Suburb 4]. She heard about the group from friends at school and he is happy for her to attend. She has been attending this group for the past one year, more than five or six months before the NOICC was issued.
The Tribunal asked the applicant about his [Relative A] who works [for the government] and how he came to know about his conversion. He said he came to know because the applicant told his family and friends via Skype conversations and he found out this way. The Tribunal asked why he would have told his family and friends such sensitive information via Skype. He acknowledged it was risky but he did it. The Tribunal asked how, if [Relative A] knew about his conversion, were his wife and [child] able to continue to live in the same place for the next six years without problems. He said they did have problems, including harassment and police came and took computers away. The Tribunal noted that they travelled out of Iran several times and asked how they were able to do this if the [government] had knowledge of his conversion. In response he said they had done nothing wrong, he was the one who had converted religion so the authorities were not interested in them and did not prevent them from leaving. The Tribunal put to him that an alternative view may be that they had no problems because the [government] did not have this information about him. He disagreed and said that while the authorities could have stopped them from traveling they did not and he does not know why.
The Tribunal asked the applicant about his travel from Australia. He confirmed that he went to [Country 1] in October 2013. His wife, [child], [and other relatives] also came. He travelled on his Iranian passport because he did not need a visa to enter [Country 1] and so it was cheaper. The Tribunal put to him that his decision to use his Iranian passport rather than his Australian travel document may lead the Tribunal to doubt the truth of his claims to fear authorities in Iran. In response the applicant said he was afraid of the authorities there. He had no fear arising from simply using his document. He only used it to save money on a visa. Regarding the travel to [Country 2] he used his Iranian passport again for the same reason, to save costs of his travel. When he went to [Country 3] he used his Iranian passport but he had to apply for a visa. He couldn’t use his Australian travel document for this country because they don’t grant visas to travel document holders. He said all three of these trips were to see his family.
The last trip in July 2016 was originally planned for [Country 1], to see his mother and wife and [child]. He had to go urgently because of her poor health. But then he discovered that it would take two months to get a visa on his Australian travel document. His Iranian passport had expired by then. He had bought a ticket for [Country 1] but then he couldn’t use it and had to cancel it. The Tribunal asked if he has any evidence of this cancelled ticket to support the chronology he is claiming. He said his employer bought the ticket and he hasn’t been able to find any evidence. After this he thought about getting an Iranian passport to use to travel to [Country 1]. He applied for this by post. The Tribunal asked what steps he took. He said he got the forms on the internet and some friends helped him to fill them out. He did not attend in person. The Tribunal asked what forms and information he provided to renew his passport. He said he gave his old passport, birth certificate and ID card. When asked if he disclosed his refugee visa status, he said he cannot recall doing that. The Tribunal put to the applicant information[1] before it indicates that the Consulate requires this information and a form to be completed where a person expresses remorse for seeking asylum. He said he does not recall doing this. The applicant reiterated that he did not apply for this passport to travel to Iran, he applied for it to travel to [Country 1] more easily. But in the end he had to go to Iran because his mother’s health was deteriorating. He travelled to [Country 4] first because [City 1] is [close to] his mother’s town in Iran. His brother there was able to facilitate him to enter Iran without the authorities detecting because his entry and exit would not be recorded in the computer system.
[1]'Matters relating to Iranian passports and visas', Embassy of Islamic Republic of Iran in Canberra, 07 October 2014, CIS2F827D91400
The Tribunal discussed with the applicant the s107 notice and explained that it is required to consider whether there was non compliance in the manner described in the notice and therefore the scope of its enquiry is determined by the particulars of non compliance referred to there. The Tribunal indicated the questions he is alleged to have provided incorrect answers – 41, 44, 45, 46. The applicant said he was afraid to go to Iran because of his conversion to Christianity and this is the reason he expended more money that he would have needed to see his family in third countries. When asked why he used his Iranian passport for this travel if afraid of the authorities, he said it is the authorities in the country he is afraid of, he did not have a fear of using his Iranian document. Similarly with applying for the passport, he said he applied without going in person and they sent the new passport to him. He does not know why. He was still afraid of the authorities when he travelled to see his mother but he took this risk because of the compelling circumstances.
The Tribunal asked the applicant if there is anything further to his submissions he would like the Tribunal to consider with regard to the exercise of the discretion, if this issue arises. He said he has always spoken the truth throughout the application and if the Tribunal accepts this his visa should not be cancelled. But if the Tribunal does not accept this then he will accept the decision. He maintains he became a genuine Christian and he rests his hopes in Jesus.
The applicant’s representative made oral submissions. In summary he argued the applicant has been unusually candid and credible throughout his protection visa process and this process. In the beginning of his application he simply said he came here to learn about Christianity and he did not say he was a convert. His claims are that he later became a convert gradually over time. The representative argues that he is a very credible witness because he has been so candid from the beginning. He is not a high intellectual and in fact has a low education level and this is also relevant to understand his actions. For example he misunderstood the questions on the passenger cards and wrote Iran as the country when he meant it to be his country of nationality. The applicant is not seeking to hide anything. He is hardworking and honest. His evidence to the RRT was not contradictory to his claims but far from that, it was truthful and genuine. Regarding the Tribunal’s question about why he did not provide support letters from Christians the representative asked the Tribunal to seek clarification of this.
The Tribunal asked the applicant again why he did not submit any support letters from members of his Christian community to support his claims. He said he did not know that was relevant because he thought the issue was why he returned to Iran if he is Christian but in fact he did not return to Iran for precisely that reason so his response addressed that. He did not think he had to prove again that he was Christian. If the Tribunal wants letters from his Christian friends he can provide it because he has many. He also said again, if he wasn’t genuinely Christian he would not encourage his [child] to attend a Christian youth group which he does.
The representative continued with his submissions, arguing that this demonstrates that the applicant did not understand that the issue of his religion was being questioned again in this process. Similarly he did not understand the significance of using his Iranian passport, but rather just saw it as minimising his travel costs because of the visa free option. The representative concluded that the applicant is a witness of truth and the visa should not be cancelled. If it is cancelled it will also have serious consequences not only for his life but that of his family.
CONSIDERATION
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. These and other relevant provisions of the Act are extracted as an attachment 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.
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 s101(b) and it was described in the manner set out in paragraph 6 above. Relevantly for the Tribunal, the delegate stated that the applicant had not complied with s101(b) in the answers he provided to questions 41, 44, 45 and 46 of Part C of Form 866.
Significantly, the Tribunal observes that the applicant’s answers to questions 42 (Why did you leave that country to which he answered “to be able to learn about Christianity which is impossible and very dangerous in Iran”) and question 43 What do you fear may happen to you if you go back to that county? To which he answered “death penalty for me because after I heard about Christianity I prayed in the name of Jesus to save me from sin I changed to Christianity which means the death penalty in Islamic rules”) were not included in the particulars of the possible non compliance specified in the NOICC. Neither was the information contained in his Statement dated 19 March 2012 where he referred to having become a Christian in Australia or his evidence before the RRT on review of the protection visa decision, where he made the new claim about [Relative A] being an [official] who knew about his conversion and had threatened the applicant and his family and was tracking his family.
The applicant, in his response to the NOICC, addressed the non compliance as alleged in the NOICC. In his response the applicant denied having provided incorrect information to the Department or Tribunal and provided explanations of his various trips outside Australia since being granted protection. He explained that, contrary to the allegation put to him in the NOICC, he did not travel back to Iran on three out of the four occasions he departed Australia since being granted protection, for the very reason claimed in his protection visa application. He also provided an explanation of his one visit back to Iran in 2016 and the circumstances of that visit. In his evidence to the Tribunal the applicant reiterated that he had been truthful throughout his protection visa application, repeating that his initial motivation in attending church was for a migration outcome, but that he subsequently genuinely converted to Christianity. He told the Tribunal he remains a Christian today, although he does not attend church regularly due to work commitments.
As indicated above, the cancellation power under s109 of the Act is conditional on a valid s107 notice being issued to the visa holder. The s.107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised. The consideration of whether particulars provided in a notice under s.107 are adequate to satisfy paragraph (1)(a) cannot be separated from the task of the decision-maker under s.108(b) to decide whether there was ‘non-compliance in the way described in the notice’: SZEEM v Minister for Immigration.[2] In particular, Smith FM (as he was then) observed at [37] as follows:
The scheme of decision making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which the person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.
His Honour further opined at [38]:
In relation to an allegation that a general statement was made falsely, the requirement of particulars must, in my opinion, also encompass particulars of the basis on which the falsity is alleged, these must be given with enough detail to allow this recipient a real opportunity to understand and attempt to answer the non-compliance allegation.
And at [43]:
I therefore consider the Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s 107 notice, where its conclusions as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s 108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis of its decision to the particular allegations which were raised in the s 107 notice as discussed above.
[2] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234
In Saleem v MRT, Allsop J found that the Tribunal had purported to exercise a power which was not authorised under s.109 by asking itself the wrong questions under s.108(b). Asking whether the applicant had in fact breached s.101 was in error.[3]
[3] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [61]
With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[4] However where as in cancellation cases the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[5] In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal also considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[6] In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his protection visa application are serious.
[4] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[6] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘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.’
Taking the above authorities and principles into account, the Tribunal finds that the non compliance identified by the delegate in the s107 notice issued to the applicant is that his answers to questions 41, 44, 45 and 46 of Part C of Form 866 are incorrect. The notice alleges that these answers are incorrect on the basis of his alleged voluntary return to Iran and engagement with the Iranian authorities on at least 3 occasions for approximately 53 days without any issues of his protection claims arising. The notice did not allege non compliance with any other questions or information provided by the applicant even though other answers and information were referred to in the notice as evidence of the non compliance.
The Tribunal has considered the NOICC, the manner in which it describes the non compliance, and the applicant’s responses to the Department and Tribunal and makes the following findings.
The applicant has disputed the allegation that he returned to Iran in 2013, 2014 and 2015. He provided explanations and evidence in regards to each of these travels to the Department in his response to the NOICC and has reiterated this evidence to the Tribunal.
On the basis of the evidence, the Tribunal accepts that the applicant travelled to [Country 1] (not Iran) [in] October 2013 to meet up with his wife, [child], [and other relatives]. It accepts that he travelled to [Country 2] (not Iran) [in] July 2014 to meet with his wife. It accepts that he travelled to [Country 3] (not Iran) in March 2015 to meet his wife and [child]. The Tribunal accepts the applicant’s explanation that he met with his family in these third countries because of his fear of return to Iran for the reasons claimed in his protection visa. It notes that on each of these occasions he used his Iranian passport for the travel. While on the face of it, this appears to be inconsistent with his claimed fear of the authorities of Iran, the applicant explained to the Tribunal that he only used this passport to facilitate entry into these countries and save costs because [Country 1] and [Country 2] offer visa free travel to holders of Iranian passports, and [Country 3] does not issue visas to travel document holders. His claims about the visa free travel for Iranian passport holders is supported by independent information considered by the Tribunal.[7] The Tribunal accepts that the applicant used his existing and valid Iranian passport to minimise costs and for the ease of entry to these third countries, and that of itself it does not undermine his claimed fear of returning to Iran. It accepts that his conduct meeting his family members in third countries is consistent with his claimed fear of return to Iran. There is no other information or evidence before the Tribunal to suggest that the applicant entered Iran on any of these occasions in 2013, 2014 or 2015.
[7] type="1">
With regard to his travel in 2016, the applicant acknowledges that he entered [City 1] in Iran to visit his mother due to her ill health, and stayed with her for 35 days. He used an Iranian passport, renewed in Australia, to enter Iran on this occasion from a border city in [Country 4]. The Tribunal notes that the applicant himself notified the Department of this travel and the circumstances surrounding it in his letter of 17 October 2016 provided in the context of his wife’s Partner visa application where he also referred to having advised airport officials of his travel to Iran upon arrival back to Australia. A letter relating to his mother’s ill health and hospitalisation in July 2016 was provided with his response to the NOICC.
Having regard to all the evidence, the Tribunal finds that the applicant entered Iran from [Country 4] in July 2016 for the purposes of seeing his mother who was ill. It accepts that he entered on an Iranian passport renewed in Australia. His explanation about how he entered and the precautions he took to avoid detection (that his brother paid a bribe to officials and his entry/exit was not recorded on the computer system) finds some support in independent information that acknowledges that bribery can be used to evade detection.[8] His voluntary and timely provision of this information at the airport and to the Department in the October 2016 letter, lends credibility to his explanation and the reasons for his visit.
[8] Danish Refugee Council, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting etc , Fact Finding Mission to Iran 24 August-2 September 2008 at p37
Having regard to these findings, the Tribunal finds that the applicant travelled back to Iran on only one occasion since the grant of his protection visa, contrary to the allegation made in the NOICC of three return visits. It accepts there was a compassionate and compelling reason for the visit on the basis of his mother’s ill health. Given the overall coherence, consistency and credibility of his claims, it is prepared to accept his account of the precautions taken by him avoid detection by the authorities when he entered and exited the country. Although the Tribunal has some concerns about his account of renewing his Iranian passport in Australia, it accepts that his explanation for seeking a new passport and his evidence about his manner of entry into Iran is, overall, consistent with his claims. He maintains that he obtained the new passport by mail and that he never attended the Embassy in Canberra in person. He has no recollection of disclosing his refugee status in the form or ‘expressing remorse’ for seeking asylum. While his account of obtaining the new passport is not entirely consistent with information about renewing passports before the Tribunal, the Tribunal acknowledges its information is somewhat dated (being a translation of a webpage from the Iranian Embassy in 2014[9]). It also has no other information directly contradicting the applicant’s account. Ultimately, on the evidence before it, the Tribunal considers the renewal of his Iranian passport in Australia is not, of itself, sufficient to undermine the truthfulness of his protection claims.
[9] Embassy of Islamic Republic of Iran in Canberra 2014, ‘Matters relating to passports and visas’, Embassy of Islamic Republic of Iran in Canberra website < (Accessed 7 October 2014 and translated from Farsi by DIBP) <CIS2F827D91400>
The Tribunal has carefully considered the applicant’s explanations and evidence regarding his trips outside Australia since 2013, and the evidence regarding his alleged engagement with the Iranian authorities. It accepts that he only returned to Iran once, in 2016, for the specific purpose of visiting his ill mother. It accepts that he renewed his Iranian passport in Australia, but did not attend the embassy in person. It is prepared to accept that he entered and exited Iran with the assistance of his brother, and took steps to avoid detection while there.
The Tribunal has considered the evidence the applicant gave about his protection claims and found this to be substantially consistent with the evidence he provided previously to the delegate and RRT in that process. He told the Tribunal that he continued to attend church regularly for some time after he was granted his visa, until about three years ago when he was faced with increasing financial pressures to bring his wife and [child] to Australia. He then increased his working hours and stopped attending church on a regular basis. The applicant told the Tribunal he considers himself still to be a Christian even though he is not attending church on a regular basis.
The Tribunal has considered the applicant’s claims made in his original protection visa applicant and his evidence provided in that process and to the Tribunal in the context of the cancellation review. At the outset, the Tribunal finds the NOICC issued to him does not particularise as incorrect any answers or information given by him regarding his Christian faith. Had the NOICC included a reference to question 43, for example, it would appear that the applicant himself admitted this answer was incorrect in his evidence to the delegate at the interview on 21 March 2012 and in his Statutory Declaration dated 22 November 2012 and evidence to the RRT where he acknowledged that he was a committed Muslim when he first attended church in Australia, but later became convinced to become Christian. But question 43 is not mentioned in the NOICC as one of the answers which is alleged to be incorrect. The Tribunal observes that the fact that the applicant himself corrected this information in the course of the protection application process strongly indicates that the decision to grant the visa was not made on the basis of it and this may explain why this question was not included in the particulars.
The Tribunal also observes that the information the applicant gave to the RRT about [Relative A] being an [official] who knew of his conversion and was tracking him and his family was not particularised in the alleged incorrect information in the NOICC, although it was mentioned in the evidence of non compliance. Had this been included as a particular of alleged non compliance, the Tribunal would have to consider whether the applicant’s actions in renewing his passport and entering Iran and staying there for 35 days supports a conclusion that the applicant’s claim about [Relative A] was untruthful or incorrect. The Tribunal is not convinced that, of itself, such a conclusion is supported by this evidence alone. However, it does not have to make a determinative finding about this because this information was not particularised in the NOICC as issued. As Allsop J indicated in the case of Saleem (see paragraph 34 above), the issue in the review is not whether the applicant in fact breached s101, but rather whether there is non compliance in the way described in the notice.
Considering then the particulars of non compliance alleged in the NOICC issued to the applicant on 4 June 2018, the Tribunal reaches the following conclusions. With regard to question 41 (being the applicant’s answer that he was seeking protection in Australia so that he does not have to go back to Iran) - the applicant maintains that this is correct. His subsequent conduct of traveling to countries outside Iran in 2013, 2014 and 2015 to reunite with his family is consistent with this statement. Although the applicant used his Iranian passport to travel to [Country 1], [Country 2] and [Country 3], the Tribunal accepts his explanation that he did this solely because he did not need a visa if he used this passport and he wanted to minimise the cost of travel. It accepts that he had no expectation or intention of seeking the protection of the Iranian government by using this passport. There is no evidence before the Tribunal that he entered Iran on any of those trips or that the Iranian authorities would know of his use of the passport. The Tribunal accepts that the applicant entered Iran in July 2016 to visit his ill mother. It accepts his explanation about the circumstances of this visit and why and how he renewed his Iranian passport in this context. Having accepted this, the Tribunal is not satisfied that his return to Iran on this occasion or conduct in renewing his passport supports a conclusion that his answer to question 41 was incorrect. There is no other evidence before the Tribunal to support a finding that this answer is incorrect.
With regard to question 44 (being that the applicant thinks Iran’s government and Islamic society may harm and mistreat him if he goes back) - the applicant maintains that this is correct. The Tribunal is satisfied his actions in not returning to Iran to meet with his family in 2013, 2014, 2015 are consistent with this. The Tribunal has accepted that he returned to Iran in 2016 to see his mother and used a renewed Iranian passport to enter. It also accepts that he was cautious in how he entered and took precautions to avoid detection consistent with his claims of fear of harm from the Iranian government and society. The Tribunal is not satisfied that his visit back once in these circumstances supports a conclusion that his answer to this question is incorrect. In reaching this conclusion, the Tribunal has not undertaken a fresh inquiry as to whether the applicant was genuinely a Christian convert as at the time of his protection visa application. Given the particulars provided in the NOICC, the question for the Tribunal in this process is limited to whether his statement that he feared harm in Iran is incorrect having regard to his subsequent return to that country and it finds that it is not. Particularly in circumstances where the applicant had corrected and clarified his claims during the course of the application and the RRT accepted his Christian conversion having regard to all of this information, it is not the task of this Tribunal to now undertake an enquiry at large and revisit that assessment.
He responded to question 45 that he thinks what will happen to him will happen because it is law and has happened to many people. The Tribunal understands this to be a reference to Iran’s laws regarding apostasy and treatment of Christian converts. There is no evidence before the Tribunal to support a conclusion that the applicant’s response to this question is incorrect. The Tribunal does not understand how his Christian claim and return visit to Iran and obtaining a new passport supports a conclusion that his answer to this question is incorrect. The applicant maintains, and the Tribunal accepts, the correctness of his claim about Iran’s laws regarding apostasy and its treatment of Christian converts.
Similarly, the Tribunal cannot see how his answer to question 46, “that the authorities cannot protect him because they are the persecutors” is incorrect on the basis of his return visit to Iran, discreetly, on one occasion three years after he was granted a protection visa to see his ill mother. The applicant maintains that he was fearful of the authorities in Iran because of his status as a Christian convert and apostate and his indirect and discreet entry into Iran is consistent with his claimed ongoing fear. The Tribunal is also not satisfied that the fact he used his Iranian passport to travel overseas and his conduct in renewing his Iranian passport, in these circumstances, is sufficient to substantiate the falsity of this response.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
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 5848

22 May 2019

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