1904679 (Refugee)

[2021] AATA 2670

1904679 (Refugee) [2021] AATA 2670 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904679

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:21 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2021 at 8:04 pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Iran – incorrect information – stateless Faili Kurd claims – Iranian citizenship via marriage – applicant forced to provide false information by ex-husband – ex-husband’s desire to live in Australia – claims of domestic violence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101-109(1), 140
Migration Regulations 1994, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was born [on date]. She was granted the Protection Class XA visa in September 2011. On 23 November 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant may not have complied with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 27 February 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. 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 her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

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

6. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

7. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant entered Australia as an irregular maritime arrival in June 2010 and made an application for refugee status determination in August 2010. In that application the applicant stated, essentially, that she was born in Iran and that her parents were born in Iraq and are Faili Kurds, who were deported in 1980. The applicant stated that she was married to [Mr A]. The applicant stated that she had no legal status in Iran and was considered stateless. The applicant stated that because she had no identity documents, she was unable to do the study she wanted or obtain any jobs. The applicant stated that she did not go out of the house much because she feared the Basij would abuse and humiliate her.

8. On 11 September 2011 the applicant made the application for a Protection Class XA visa and completed Form 866. In that application the applicant gave her personal details, such as name and date of birth and referred to her husband [Mr A], stating they were married in Iran in 2009. Further,

   a.at Question 20 the applicant did not provide an answer to a question about her citizenship

   b.at Question 21 she was asked whether she had any other citizenship or whether she was a national of any other country, the applicant stated ‘no’

   c.at Question 41 the applicant stated that she was seeking protection not to return to Iran

   d.at Question 42 the applicant was asked why she left that country. The applicant referred to the statement she provided in support of her Refugee Status Assessment dated 25 August 2010 in which she claimed to be an undocumented and stateless Faili Kurd and that she faced discrimination because of that status.

   e.At Question 43 the applicant was asked what would happen to her if she returned to Iran and shed also referred to her earlier statement in which she claimed she would continue to be discriminated against and abused.

   f.At Question 44 the applicant claimed she would be harmed / mistreated by the Basij

   g.At Question 45 the applicant referred to her earlier statement in which she claimed she had no legal status in Iran and considered to be stateless

   h.On 20 September 2011 the applicant was granted a Protection visa.

9. In August 2017 the applicant’s former spouse [Mr A] approached the Australian embassy in Tehran to renew his travel document and presented a copy of his Iranian passport and in the application for the passport he also referred to his Iranian birth certificate. Both documents are issued to Iranian citizens. The delegate concluded that [Mr A] was an Iranian citizen at the time of the applicant’s marriage to him and according to the Iranian Civil Code, a woman who marries an Iranian citizen becomes an Iranian citizen by operation of law, with no registration process required to become a citizen by marriage. Thus, if the applicant was not an Iranian citizen previously, she would have acquired citizenship upon her marriage to [Mr A] in March 2009.

10. In her response to the NOICC the applicant conceded that the above information was correct. The applicant stated that [Mr A] was violent towards her and he attacked and beat her severely and he forced her to come to Australia. The applicant stated that it was her husband’s decision that she should declare herself as stateless, rather than Iranian and he had threatened to kill her if she did not obey. The applicant repeated the same evidence in her written submissions and oral evidence to the Tribunal. She told the Tribunal that she was a Faili Kurd but had the [Iranian] documents and her ex-husband had forced her to lie.

11. Having regard to the applicant’s concession, and the information in the primary decision record, the Tribunal finds that the applicant was an Iranian citizen by the time she made her application for the protection visa and that she became an Iranian citizen no later than 2009 at the time of her marriage. The Tribunal finds that the answers the applicant gave to the various questions set out above, relating to her citizenship (when she claimed to be stateless) were incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. Further, the Tribunal finds that the applicant gave incorrect information in her statement, which is also taken to be an answer on the application form. For these reasons, the Tribunal finds that there was non-compliance with s. 101 of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

12. 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).

13. 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

14. The correct information was that the applicant was a citizen of Iran at the time she made the application for the Protection visa.

    The content of a genuine document

15. This is not relevant in the present case.

    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

16. An assessment of whether protection obligations are owed by Australia is based on the applicant’s country of nationality. A country of nationality is central to any such determination. Further, the applicant’s claims were made expressly on the basis that she was stateless and that she faced harm and discrimination because of her status as a stateless Faili Kurd. The applicant claimed that because of her stateless status, she could not access education and employment of her choice and faced other forms of harm and discrimination. The applicant’s status as a stateless person in Iran was central to her claims. The correct information is that the applicant was not stateless but was a citizen of Iran. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

17. The applicant states in her response to the NOICC and her evidence to the Tribunal, essentially, that she was subjected to mistreatment by her former husband who forced her to provide incorrect information in the protection visa application. The applicant states that her husband took her to another place and gave her the form to sign and out of fear, she did what he asked. In her statement to the Tribunal submitted on 6 May 2021 the applicant repeated these claims, stating that she was in an abusive relationship and was told by her husband what to do and she did as she was told. In oral evidence, the applicant referred to being forced to marry and the beatings and mistreatment from her husband. The applicant states that she tried to divorce him but could not do it in Iran. She claims she was fearful of her husband and was scared for her life, so she signed the papers and did as she was told.

18. The Tribunal finds the applicant’s evidence problematic. The Tribunal is mindful, firstly, that the applicant had the responsibility for her own application and to ensure that the content of that application was correct, irrespective of any influences and circumstances. She would have been required to sign a declaration in her application stating that the information she provided was true. Secondly, once the applicant entered Australia, she had professional assistance in preparing her application and could have sought advice on how to avoid the alleged harm from her partner while providing correct information in her application. Thirdly, there is no suggestion that the applicant had ever taken any steps to correct the incorrect answers, even after she was no longer under the influence of her former husband.

19. Given the extent and the significance of the incorrect information in the protection visa application, the Tribunal has formed the view that the applicant is willing to provide incorrect information to achieve a favourable migration outcome and that she is not a person of credibility. The applicant has not presented independent evidence to support her claims of violence perpetrated by her husband, such as evidence of an AVO, police or medical records, a statement from a women’s refuge, social workers, etc and the Tribunal is unwilling to accept the applicant’s evidence without probative supporting evidence. The Tribunal does not accept the applicant’s claims about the circumstances leading to the non-compliance.

20. The applicant’s evidence to the Tribunal is that her ex-husband had returned to Iran and is living in that country. She remains in Australia. That might suggest that it was the applicant’s desire to live in Australia and not her ex-husband’s. The applicant explained that the husband’s intention was to work in Australia and make money (and he forced her to work and give him the money) and she cannot comment why he left Australia. However, the fact that he resides in Iran while the applicant remains in Australia brings into question, in the Tribunal’s view, the applicant’s evidence that it was her husband who wanted to migrate to Australia while she had no desire to do so and simply did what she was told.

21. The Tribunal is also mindful of the applicant’s evidence that she lived with her husband for 13 months before obtaining the divorce and being issued with an AVO and subsequently being moved to a women’s shelter and away from her abusive husband. The applicant told the Tribunal she separated from her husband by January 2013. Yet there is no evidence before the Tribunal that after the relationship with her husband finally ended and the applicant moved away from her partner, that she made contact with Immigration to inform the Department of the incorrect answers, as s. 105 required her to do. The applicant claims her husband threatened her and her family in case she did inform the Department but as noted elsewhere, the applicant had the protection of the Australian authorities and on her own evidence, relied on such protection, having been issued with the AVO and having access to the police. The Tribunal is also mindful that on the applicant’s own evidence, the husband did return to Iran and would have therefore lost his protection visa, so any disclosure of truth would not seem to cause him any harm. The applicant told the Tribunal that she was scared that if she did tell the Department the correct information, she would be returned to Iran and mistreated by her ex-husband (which is different to the claim that her husband threatened her not to tell the truth). That is, the applicant had deliberately withheld information form the Department because she determined that it better suited her circumstances.

22. The Tribunal finds that the applicant had deliberately and knowingly provided incorrect answers in her protection visa application. The Tribunal  does not accept the applicant’s claim that she was forced to do so by her former husband and in any case, the Tribunal does not consider that the applicant’s circumstances justify the provision of incorrect answers that were so central to the determination of her claims.

    The present circumstances of the visa holder

23. The applicant submits that she had divorced her former spouse and has started a new relationship with an Australian citizen husband. They have two children who are Australian citizens and who are heavily reliant on her. The applicant states that given her past experience, she needs the support and the stability of her family. The applicant provided in her response to the NOICC evidence of the husband’s Australian citizenship and birth records for her children. The Tribunal accepts that evidence.

24. The applicant told the Tribunal that she has a small house where she lives with her family.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

25. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

26. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

27. The application for the protection visa was made in September 2011 and approximately ten years passed since the non-compliance, which the Tribunal acknowledges is a lengthy period.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. There are no known breaches of the law.

    Any contribution made by the holder to the community

29. The applicant has not provided any evidence of having made any contribution to the community and does not claim to have made such a contribution.

30. 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.

    Whether there would be consequential cancellations under s.140.

31. There are no persons in Australia who would be subjected to consequential cancellation. The applicant’s evidence is that her ex-husband lives in Iran.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

32. The applicant presented in response to the NOICC the Australian citizenship certificates for her children, born in 2015 and 2018 respectively. The applicant claims that the children rely on her and given their young ages, the Tribunal accepts that this is so. The Tribunal accepts that it is in the best interests of the children to be in the care of their parents and close to their mother. However, the Tribunal is mindful that if the applicant is in a genuine relationship with an Australian citizen husband, as she claims to be, she is entitled to make an application for a Partner visa onshore. There is no apparent reason before the Tribunal why such a visa would not be granted, although the Tribunal acknowledges that there can be no certainty about any visa application outcome. Nevertheless, an onshore application for a Partner visa would ensure that the applicant is able to remain in Australia and care for her children while the application is being processed and, if the visa is granted, the applicant would be able to remain in Australia permanently. In such circumstances, the Tribunal does not consider that the cancellation of the applicant’s protection visa would adversely affect the best interests of the children.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

33. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

34. The applicant submits that she fears threats from her former husband, if she returns to Iran. In her evidence to the Tribunal the applicant outlined the abuse she claims to have experienced from her husband and states that if she is to return to Iran, he would be entitled to know her whereabouts and would kill her.

35. As noted elsewhere, the Tribunal has formed the view that there is very little likelihood that  the applicant will be returning to Iran. Firstly, the applicant is eligible to make an application for a Partner visa onshore as she claims to be in a genuine spousal relationship with an Australian citizen husband and the grant of such a visa would ensure the applicant will not have to depart Australia. That would also mean that family unity obligations will be complied with. Secondly, the Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

1. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

2. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee Convention or complementary protection obligations. The applicant’s claims are, essentially, that she would experience harm from her former spouse. The Tribunal has formed the view that the nature of her claims are such that these might rise to protection obligations under the Refugee Convention or the complementary protection obligations.

3. The Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

4. If the applicant’s visa is cancelled, and if she is not granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. The applicant can make applications for certain visas in Australia without the Ministerial intervention but she would have limited opportunities to do so. The applicant can make applications for visas offshore and may be subject to an exclusion period in relation to some such applications. If the visa is cancelled, she may lose some of the benefits and entitlements she had as a permanent resident of Australia.

5. The applicant states that it would be hard for her live without a visa and she has found many opportunities in Australia. The Tribunal accepts that evidence.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

6. The applicant refers to the significant hardship that she and her family would suffer as a result of her visa being cancelled, including her separation from the young children who rely on her, and her husband in Australia. The applicant notes that her husband and children are Australian citizens and her children are young and she should not be separated from them. The Tribunal accepts that normally, such circumstances would amount to significant hardship but in the circumstances of this particular case, the Tribunal does not consider that such hardship would arise because the applicant is entitled to make an application for a Partner visa onshore and has indicated to the Tribunal that she intends to do so. In the Tribunal’s view, there is very little likelihood, if any, of the applicant being required to leave Australia and being separated from her family. Thus, while the Tribunal accepts that considerable hardship would be caused to the applicant and her family if she is required to leave Australia, the Tribunal does not consider there is a real likelihood of the applicant being required to leave Australia as a result of her visa being cancelled. As such, the Tribunal does not consider that hardship would be caused as a result of the cancellation.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given in breach of s. 101 and that there are grounds for cancelling her visa.

8. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled. In particular, the presence of the applicant’s partner and children in Australia, the length of time she has lived in Australia and her settlement in this country and the applicant’s claimed fear of her former husband and the alleged circumstances in which the non-compliance occurred. If accepted, these matters would form strong reasons against the cancellation. The Tribunal also accepts that considerable hardship would be caused to the applicant and her family if she was required to leave Australia as a result of her visa being cancelled. However, the Tribunal has formed the view that in this case, there is very little or no likelihood of the applicant being required to leave Australia, irrespective of the outcome of this review. The applicant has informed the Tribunal of her intention to seek a Partner visa onshore and that would mean that the applicant can remain with her family in Australia, that she would not be required to leave Australia and risk any harm by her former spouse, even if there is a real possibility of such harm occurring.

9. The Tribunal has formed the view that the cancellation of the visa would not breach Australia’s international obligations and family unity principles and would not adversely affect the best interests of the children.

10. In this case, the Tribunal has decided to place greatest weight on the fact that the decision to grant the visa was based, to a significant extent, on incorrect information. It is highly significant, in the Tribunal’s view, that the applicant’s claims of being a stateless person in Iran were central to her claim to be a refugee. The applicant’s application for the protection visa was based, essentially, on her claim that as a stateless person, she had no access to education and employment and was otherwise subjected to harm, harassment and discrimination. As the applicant was not stateless, these claims were untrue.  That is, the very basis on which the applicant sought her protection visa and was granted one, was not true and in the Tribunal’s view, that weighs very strongly in favour of the cancellation.

11. The Tribunal acknowledges the applicant’s evidence about the circumstances in which the non-compliance occurred but even if true, the Tribunal does not consider that the applicant’s claimed fear of her first husband justified the provision of incorrect answers.

12. Overall, the Tribunal places greater weight on the significance of the incorrect answers to the decision to grant the visa to the applicant and the fact that the decision to grant the visa was based on incorrect information. In the Tribunal’s view, and having regard to the particular circumstances of this case as set out above, this consideration outweighs others that may be against the cancellation.

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

    DECISION

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

    Kira Raif
    Senior Member