1905248 (Refugee)
[2020] AATA 1781
•7 January 2020
1905248 (Refugee) [2020] AATA 1781 (7 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1905248
COUNTRY OF REFERENCE: Iran
MEMBER:Michael Hawkins
DATE:7 January 2020
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 07 January 2020 at 4:35pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – imputed political opinion – opposition to the government – support for Kurdish opposition groups – particular social group – mixed religious relationship – returned asylum seeker – race – Kurd – religion – conversion to the Zoroastrian faith – allegations of sexual assault – suicide of partner – fear of killing – false legal proceedings – return to Iran – passport renewal – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 116
Migration Regulations 1994 (Cth), r 2.41CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
Saleem v MRT [2004] FCA 234
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 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 they believed there had been non- compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. 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 18 November 2019 to give evidence and present arguments.
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.
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.
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 s.101 of the Act in the following respects: A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
The delegate concluded that the applicant had not complied with s.101(b) of the Act as he has provided incorrect answers to questions 42, 43, 44, 45 and 46 of the Form 866C in his application for a Protection visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folios 242 to 254 on the Departmental file [number] has particularised information deemed to be in breach of s.101(b) of the Act.
The Notice of Intention to Consider Cancellation
The NOICC indicates [in] September 2010 the applicant arrived on Christmas Island as an unauthorised offshore maritime arrival claiming to be an Iranian citizen and seeking protection in Australia.
The applicant claimed in his entry interview that he was an Iranian citizen born in Kermanshah, Iran on [date]. The applicant stated he is Kurdish and Shia Muslim, and he fears returning to Iran.
The NOICC indicates that the applicant claimed he did not have any evidence to prove his identity. The applicant claimed he had left Iran using his own legitimate Iranian passport which held a valid visa for [another country]. The applicant claimed to no longer hold that passport.
The NOICC notes that the applicant provided a statement dated 1 October 2010 with his application for Refugee Status Assessment (RSA) and summarised the applicant’s claims as follows:
·He had been involved in an intimate relationship with a Kurdish Iranian girl named [Ms A] with whom he had a secret relationship for around three years. The applicant claimed when trying to meet with [Ms A], he had been detained on two occasions on suspicion of fraternising with a member of the opposite sex and detained on one of those occasions for three days;
·The applicant claimed that he was prevented from marrying [Ms A] by her family's opposition and in response the applicant entered into a mutually agreed sexual relationship in order to prove to the family he were serious in his mutual commitment to the relationship. The applicant claimed he had also hoped to force her parents to allow the marriage to take place once they knew he had a sexual relationship with [Ms A];
·He claimed that [Ms A] was beaten by her family when they discovered she had been intimate with the applicant and she subsequently committed suicide;
·The applicant claimed that her family then accused him of raping [Ms A] and blamed him for her death.
·The applicant claimed that he left Kermanshah travelling to Tehran where he made arrangements to leave Iran and that in the meantime, [Ms A’s] brothers went to his family home to find him and attacked one of the applicant’s brothers. He claimed that the Iranian police had also been looking for the applicant in response to the rape allegations.
·The applicant claimed he would be executed if he were to return to Iran because the family of [Ms A] believe he raped her. If returned to Iran the applicant fears the authorities and the family of [Ms A] who he believes will seek retribution.
·The applicant believes he would be sentenced to death by an Iranian court. He believes he would not be given a fair trial in Iran.
On 25 November 2010 the delegate assessing the applicant’s RSA determined that he did not meet the definition of a refugee and the applicant was not someone to whom Australia owes protection obligations. The delegate found the applicant’s claims regarding his relationship with [Ms A] and events that unfolded including accusations of rape, did not amount to Convention based persecution and were considered a personal matter between families. The applicant then applied for review of the RSA.
The NOICC summarised that at the Independent Merits Review (IMR) the applicant provided the following information:
·The applicant stated he had converted to the Zoroastrian faith around 13 years earlier and aside from his parents, all of his family (siblings) follow the Zoroastrian faith.
·He stated he believed the authorities in Iran (in his area) became aware of the applicant’s conversion to the Zoroastrian faith. Both the applicant and his brother followed the Zoroastrian faith. In the applicant’s [business] in Iran he had a Zoroastrian picture hanging. The applicant also sold the Zoroastrian symbol the Faravaher and he would place a sticker of the Faravaher on the products he sold.
·The applicant stated he did not provide this information at RSA interview because he was very fearful of being found to have left the Islamic faith. There were many Iranians at the detention centre and the applicant was worried his family would be in further trouble if the authorities in Iran found out that he had converted.
·The applicant stated he feared returning to Iran because the applicant believed he will come to the attention of the Iranian authorities at Imam Khomeini Airport. The applicant stated he feared being arrested at the airport because the family of [Ms A] lodged complaints against him.
·Although the applicant stated he left Iran legally on his own passport, he would be returned without the proper Iranian documents which may bring him to the notice of authorities. If the applicant was interviewed the false charges pending against him would be discovered.
·The applicant’s advisor made submissions dated 5 September 2011 including that he had forgotten to mention that in May 2011 he had given a telephone interview to [Journalist A] based in London speaking about the problems the applicant faced in Iran and this program was broadcast in Iran. The applicant had spoken to the media at various times while in detention complaining of his treatment in detention.
·Further, the applicant’s migration agent submitted on his behalf that as a Kurd he could face persecution on the grounds of your Kurdish ethnicity and imputed political beliefs of being opposed to the Iranian government for having sought asylum in a Western country and on suspicion of support for Kurdish opposition groups.
·The applicant’s migration agent stated in part; "He has also recently received a summons to attend court for examination, which [the applicant] believes relates to the false accusations of rape made against him. Even if the rape charges were found to be baseless, the penalty he faces as a non-Muslim, for his participation in a consensual sexual relationship with a Muslim woman is execution, as outlined earlier. If he is tried for these offenses, it is likely that his trial will be unfair..."
·The applicant’s migration agent stated he has a well-founded fear of persecution for the following Convention reasons:
"His ethnicity as a Kurd;
His religious beliefs as a convert from Islam to Zoroastrianism; His membership of particular social groups namely;
Non-Muslim Iranian male adulterers, and
Failed asylum seekers returning from a Western country,
His actual and imputed political opinion, of being opposed to the religious underpinnings of the Iranian regime, and having fled the country to seek refuge in a Western country such as Australia, a country openly critical of the Iranian Government.
The above Convention grounds are the essential and significant reasons for the persecution [the applicant] fears. However they should be considered cumulatively as the severity of the persecution [the applicant] fears will be exacerbated in the context of Iran by the false charges of rape laid against him by his girlfriend's family.”
The NOICC referred to the IMR reviewer’s decision which found that:
The IMR reviewer found that "After considering the evidence and the country information ...if the claimant returns to Iran and is questioned at the airport, there is a real chance that he would be identified as a Kurd, who is a failed asylum seeker, who has criticised the Iranian authorities to the media, and who is a convert from Islam to the Zoroastrian religion...l am satisfied that the harm the claimant would suffer in Iran, would not be because of laws of general application to people returning to Iran without the documents on which they left Iran, but rather because of selective and discriminatory treatment for the Convention reasons of his Kurdish race, of his conversion from Islam to the Zoroastrian religion, and of an adverse anti-regime political opinion imputed to him by the authorities because he is a Kurd, he has sought asylum in a western country, and he has been publicly critical of the Iranian authorities to the media, and if the authorities discovered this, because he defied the Iranian Islamic laws when he had an extra-marital relationship with [Ms A]..."
The risk of serious harm for Convention based reasons is from the authorities in Iran and the risk would apply throughout Iran.
The delegate in the NOICC observed that on 18 November 2011 the applicant lodged an application for a Protection visa and completed an Application for an applicant who wishes to submit their own claims to be a refugee Form 866C. The applicant sought protection in Australia so that he did not have to go back to Iran.
The delegate noted that the applicant provided the following answers to the questions listed below:
At Question 42 of the Form 866C which asks: Why did you leave that country? The applicant answered:
"See statement attached to RSA application"
In his statement the applicant claimed he left Iran [in] July 2010 after [Ms A’s] family refused to allow the marriage to proceed and [Ms A] was beaten by her family and committed suicide. The applicant left because he feared retribution from [Ms A’s] family who blamed him for her death and accused him of raping [Ms A]. He claims after he left Kermanshah travelling to Tehran where the applicant made arrangements to leave Iran, [Ms A’s] brothers went to his family home asking for the applicant and then attacked one of his brothers. The police had also visited his family home asking for the applicant in relation to the rape allegations. The police then issued a legal notification which advised him to report to the police on [a date in] May 2011 in order to give explanations however it did not state implicitly that it was in relation to the rape allegation. The applicant claims he believed the letter was issued in relation to the allegations of rape made by [Ms A’s] family. He stated he would not receive fair treatment in court due to his conversion to the Zoroastrian faith and the applicant stated he believed the authorities had become aware he had converted to the Zoroastrian faith.
At Question 43 of the Form 866C which asks: What do you fear may happen to you if you go back to that country? The applicant answered:
"See statement attached to RSA application"
In the applicant’s statement he claimed if he returned to Iran he would be harmed because the family of [Ms A] believe he raped her and the police sent the applicant a letter advising him to report to them on [a date in] May 2011. If returned to Iran the applicant fears the authorities and the family of [Ms A] will seek retribution. The applicant believes he would not be given a fair trial by an Iranian court due to his conversion to the Zoroastrian faith. The applicant cannot freely practice his faith and if found that he has converted from Shia Muslim to the Zoroastrian faith, he could be killed. The applicant claimed the authorities in Iran (in his area) became aware of his religion as Zoroastrian. The applicant claimed his contact with the media (interview with [Journalist A] based in London) and also at Christmas Island exposed him to risk should he return to Iran for his anti-regime attitude.
At Question 44 of the Form 866C which asks: Who do you think may harm/mistreat you if you go back? The applicant answered:
"See statement attached to RSA application"
In his statement, the applicant claimed the authorities and the family of [Ms A] would harm or mistreat him if he were to return to Iran. If he were to go to court for the rape allegation, the applicant would be treated harshly because he converted to the Zoroastrian faith. The applicant stated the authorities would harm him because of his anti-regime commentary to the media.
At Question 45 of the Form 866C which asks: Why do you think this will happen to you if you go back? The applicant answered:
"See statement attached to RSA application"
In the applicant’s statement he claimed the authorities would be aware of the rape allegations and that he had not attended the police station in 2011. He claimed the family of [Ms A] want retribution because they believe he raped [Ms A] and blame him for her death.
The applicant claims if discovered that he had converted to the Zoroastrian faith this would be considered as opposition to the religious underpinnings of the Iranian regime. Further to this, as a non-Muslim the applicant would not be afforded the same treatment in court should he have to attend on the rape matter.
In the applicant’s statement he also claimed the authorities would harm the applicant because of his anti-regime commentary to the media which was broadcast in Iran.
At Question 46 of the Form 866C which asks: Do you think the authorities of that country can and will protect you if you go back? If not, why not? The applicant answered:
"See statement attached to RSA application"
In the applicant’s statement, he claimed the police would request him to attend the police station to answer the allegations of rape. Further, the applicant states if the authorities discovered he had converted to the Zoroastrian faith and because of his anti-regime discussions with the media once the applicant was in Australia, he would be arrested and harshly dealt with in the courts. Although he stated he left Iran legally on his own passport, the applicant would be returned without the proper Iranian documents which may bring him to the notice of authorities. The applicant stated he feared returning to Iran because he believed that he will come to the attention of the Iranian authorities at Imam Khomeini Airport.
The the NOICC notes that on the basis of this information as well as having satisfied all the relevant criteria, the applicant was granted a Protection (subclass 866) visa on 24 November 2011.
The delegate noted that subsequent to the grant of the Protection (subclass 866) visa, on 27 June 2012 the applicant lodged an application to sponsor his partner, [Ms B]. As part of that application he completed a Sponsorship for a partner to migrate to Australia Form 40SP, in which the applicant as follows:
At Question 9 which asks: When and where you and your fiance or partner first met, the applicant answered:
"[Year] in Kermanshah".
At Question 10 which asks: How you met your fiance or partner, the applicant answered:
"In person (cousin)".
At Question 11 which asks: How long after you met did you and your fiance or partner begin a relationship, the applicant answered:
"[A date in December] 2010".
At Question 12 which asks: When you and your fiance or partner made the decision that you both wanted to commit to a long-term spouse or de facto relationship; or intended to marry each other, the applicant answered:
"[A date in December] 2010".
The applicant then provided an updated Form 40SP with answers to two questions which had changed from the previous form:
At Question 13 which asks: When and where did you begin a married or de facto relationship with your partner, the applicant answered:
“[A date in January] 2010”
At Question 14 which asks: Whether the person you are sponsoring is your spouse, the applicant answered:
Date of marriage: "[A date in April] 2012"
Place of marriage: "Kermanshah"
The NOICC indicates that the applicant provided a marriage certificate issued by the Marriage Registry Office in Kermanshah, dated [a later date in] April 2012. The marriage took place by proxy while that applicant was in Australia. The applicant provided his brother, [Mr C] with a power of attorney issued by Islamic Republic of Iran in [Australia] so that he could marry [Ms B]. The delegate noted the marriage certificate refers to the applicant and his wife's religion as Shia-Moslem.
In a written statement dated 15 August 2012 the applicant stated in part:
“We are neighbour about 20 years and we are relative too. When she was [age], I was her close friend. After that I decided to go to Australia. When I did that we always talked on the phone then I suggested her to marry me and my family wanted her to this too. I gave a power of attorney to my brother to do this. Then we got married. We are very happy and just want to live with each other. "
The delegate noted [in] March 2013 the applicant departed Australia and travelled to Iran using his Titre de Voyage. The applicant remained in Iran for four and a half months.
[In] April 2013 the applicant’s wife was granted the [Partner] visa. She arrived in Australia [in] June 2013. The applicant’s wife travelled to Australia while the applicant remained in Iran a further six weeks.
The NOICC notes that the applicant applied for an Iranian passport at Iranian Embassy in Australia and an Iranian passport was issued to him [later in] 2013. Departmental records indicate that [in] July 2013 the applicant returned to Australia.
The delegate considered the applicant’s return to Iran and remaining in Iran for four and a half months indicates he did not fear the authorities and/ or [Ms A’s] family as claimed. Further, the delegate considered that the applicant applying for an Iranian passport indicates he did not fear the authorities as he claimed.
The NOICC notes that in order to apply for an Iranian passport the applicant had dealt with government officials which indicates he did not fear the authorities for reasons of his imputed political opinion in relation to the applicant’s anti-regime discussions with the media. Further, the applicant remained in Iran for a significant period of time in which time he made his presence known to the authorities by entering and exiting Iran.
The delegate further noted that the applicant voluntarily returned to Iran and remained there a lengthy period of time where delegate considered it probable the applicant engaged with authorities via entry and exit from Iran. The delegated considered that the applicant remaining in Iran while his wife travelled to Australia alone indicates that he did not fear staying in Iran for the reasons outlined in his Protection visa application.
The NOICC indicated that the delegate considered the date the applicant claimed he started a relationship with [Ms B] on [a date in] January 2010 indicates that he did not provide correct information in his Protections Visa application.
The delegate further noted that according to the applicant’s statements regarding the relationship with [Ms A], they were in a relationship up until she died and he then left Kermanshah for Tehran [in] July 2010. The applicant provided updated answers to Question 13 of the Form 40SP which asks when he began a de facto or married relationship with his partner to which he answered [a date in] January 2010. The delegate then observed that the applicant’s claims in relation to [Ms A] and those incidents with [Ms A’s] family and the authorities wishing to question him, are incorrect.
In the NOICC the delegate referred to the 2009 Danish Immigration Service Report, citing the following information on security procedures upon arrival in Iran:
"After leaving the aircraft the person enters an area with counters for passport checks. There are separate counters for foreigners and Iranians. The Immigration Police who are sitting inside a booth behind a glass window conduct this security check. The Immigration Officer scans the passport and registers all the personal data from the passport of the arriving passenger in the computer system. The personal information is already registered in the computer system. The information includes a photograph of the passport holder and this photograph appears on the screen. The Immigration Officer checks the validity of the passport and if the person is entering Iran on illegal grounds or has outstanding issues with the authorities he will be held responsible in accordance to Iranian law, rules and regulations."[1]
[1] https:llirb-cisr.gc.calenlcountry-information!rir/Pages/index.aspx?doc=454849&pls=1.
The delegate further referred the Danish Immigration Service report in relation to information on security procedures upon departure from Iran:
"After check-in, the passenger goes to a counter where Immigration Police conducts a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.
The passport and the exit visa are verified. The data of the passport holder appears on the screen, together with a photograph of the traveller. If the person is married and has children, the photos and names of his wife and children will also appear on the screen. If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen."[2]
[2] Ibid.
The NOICC notes that the applicant stated his family received a summons from the police station in Kermanshah that he must attend the police station. The applicant stated he feared returning to Iran because he believes he will come to the attention of the Iranian authorities at Imam Khomeini Airport. Although the applicant stated he left Iran legally on his own passport, he would be returned without the proper Iranian documents which may bring him to the notice of authorities. If the applicant was interviewed, the false charges pending against him would be discovered. His anti-regime comments to the media is also a reason the applicant feared returning to Iran.
The NOICC noted that the applicant’s claims in relation to the police issuing him with a letter of explanation which he believe was referring to the rape allegation, indicates he was wanted by the police for this outstanding police matter. The delegate noted that from the information in the Danish Immigration Service report it is clear that should a person be wanted for ‘...outstanding issue with the government or for other reasons’, the applicant would likely have been questioned and possibly detained on arrival in or exit from Iran.
The delegate notes that the applicant claims he was of interest to the Iranian authorities because of the situation with [Ms A] and that this would be exacerbated because of his conversion to the Zoroastrian faith. Furthermore, the delegate noted that the applicant claimed to have an adverse political profile because of his comments against the Iranian government.
The NOICC notes that despite this claimed profile, the applicant voluntarily returned to Iran despite his claims that he would be executed should he return to Iran and the Iranian authorities are seeking his arrest and detention. The delegate stated that given the applicant’s voluntary engagement with the Iranian authorities under the identity he claimed was of adverse interest to the authorities that could lead to his arrest, detention and possible execution. It appeared to the delegate that the applicant’s Protection visa claims were incorrect.
Moreover, in the NOICC the delegate considered that the applicant had provided incorrect answers to the following questions:
At Question 42 of the Form 866C which asks: Why did you leave that country? The applicant answered:
"See statement attached to RSA application"
The visa holder stated he left on Iran [in] July 2010 after [Ms A’s] family refused to allow the marriage to proceed and [Ms A] was beaten by her family and subsequently committed suicide. The visa holder left because he feared retribution from [Ms A’s] family who blamed him for her death and accused him of raping [Ms A]. The visa holder claims after he left Kermanshah travelling to Tehran where he made arrangements to leave Iran, [Ms A’s] brothers went to his family home asking for the visa holder and then attacked one of his brothers. The police had also visited the visa holder’s family home asking for him in relation to the rape allegations. The police then issued a legal notification which advised him to report to the police on [a date in] May 2011 in order to give explanations. The visa holder claims the letter was issued in relation to the allegations of rape made by [Ms A’s] family. The visa holder stated he would not receive fair treatment in court due to his conversion to the Zoroastrian faith.
I consider your answers in relation to why you left Iran are incorrect in relation to [Ms A] given your voluntary travel without any issue or impediment by the Iranian authorities who you claimed would execute you if you returned to Iran. I consider you were in a relationship with [Ms B] with whom you commenced a relationship on [a date in] January 2010 when you claimed to be in a relationship with [Ms A]. I consider your claims that the police went to your home asking for you in relation to allegations of rape made by the family of [Ms A], are incorrect. I consider the claim regarding the legal notification letter is also incorrect. I consider you were not wanted by the police in relation to [Ms A]. You were not sought after by her family. Further, I do not consider the claims regarding having to attend court are correct, therefore the issue of your conversion to the Zoroastrian faith is irrelevant in relation to the issue of [Ms A] and attending court. Further, your marriage certificate indicates you are Shia-Moslem which contradicts your claim of having converted to the Zoroastrian faith around 13 years ago.
At question 43 of the Form 866C which asks What do you fear may happen to you if you go back to that country? The applicant answered:
"See statement attached to RSA application"
You stated if you returned to Iran you would be banned because the family of [Ms A] believe you raped her and the police sent you a letter advising you to report to them on [a date in] May 2011. If returned to Iran you fear the authorities and the family of [Ms A] will seek retribution. You believe you would not be given a fair trial by an Iranian court due to your conversion to Zoroastrianism. You cannot freely practice your faith and if found that you have converted from Shia Muslim to the Zoroastrian faith, you could be killed. You claimed the authorities in Iran (in your area) became aware of your conversion to the Zoroastrian faith. Further you stated you would be persecuted for your anti-regime comments to the media which were aired in Iran. I consider this answer is incorrect because the police and [Ms A’s] family would not be looking for you as you claimed. As stated above, the claims regarding [Ms A] are considered false because you were in a relationship with your wife, [Ms B] at the same time you claimed to be with [Ms A].
Your claim regarding being sentenced to death by an Iranian court is also incorrect because I consider the circumstances surrounding the claimed relationship with [Ms A] are not as you stated given it appears you were in a relationship with your wife [Ms B] at the time of the incidents in relation to [Ms A]. You were able to enter and exit Iran without any apparent issue with the Iranian authorities for the outstanding police matter. As stated above in the Danish Immigration Service report, had you been accused of rape, and had the police issued you with a letter of explanation, this would have caused problems for you at the border. Further, you returned to Iran and remained there for four and a half months without suffering apparent harm or persecution for reasons of your imputed political opinion in relation to the anti-regime interview with the media. You claimed the authorities in Iran (in your area) became aware of your religion as a Zoroastrian. If you believed the authorities knew you had converted, I consider you would not have been able to safely remain in Iran for four and a half months without coming to the attention of the authorities. You have been issued with an Iranian passport indicating you were not of interest to the authorities for the reasons you claimed. It appears you were able to enter Iran, reside there for four and a half months and exit Iran without suffering harm or persecution at the hands of the authorities.
At Question 44 of the Form 866C which asks: Who do you think may harm/mistreat you if you go back? The applicant answered:
"See statement attached to RSA application"
You claimed the authorities and the family of [Ms A] would harm or mistreat you if you were to return to Iran. Further, if you were to go to court for the rape allegation, you may be treated harshly because you converted to Zoroastrian. You also claimed that your anti-regime discussions with the media would put you at grave risk or harm should you return to Iran.
I consider the authorities and the family of [Ms A] would not be wanting to cause you harm or worse, arrest you and sentence you to death in court because I consider the circumstances surrounding the claimed relationship with [Ms A] are not correct. Your claims for protection relied upon the claimed incidents which occurred after [Ms A’s] family found out you were in a relationship. You have since provided information in the application to sponsor your wife [Ms B] that you were in a relationship with [Ms B] at the time you claimed these incidents occurred.
Further, this means your claims regarding the courts treating you harshly are incorrect because I consider you are not wanted by the police for the allegation of rape. You also claim you would be found to have converted to the Zoroastrian faith which I consider would not be the case if you were not wanted by the police or courts for the reasons of your relationship with [Ms A]. Your marriage certificate refers to you as Shia Moslem which undermines your claim of having converted to the Zoroastrian faith 13 years ago.
I consider you did not fear the authorities for reasons of your imputed political opinion due to your publicly declared anti-regime views because you were able to return to Iran for a period of four and a half months without having suffered any apparent harm. You were also able to be issued an Iranian passport in the identity you claimed was of adverse interest to the authorities. It appears you were able to enter Iran, reside there for four and a half months and exit Iran without suffering apparent harm.
At Question 45 of the Form 866C which asks: Why do you think this will happen to you if you go back? The applicant answered:
"See statement attached to RSA application"
You claimed the authorities would be aware of the rape allegations and that you had not attended the police station in 2011. You claimed the family of [Ms A] want retribution because they believe you raped [Ms A] and blame you for her death.
You claim if discovered that you had converted to the Zoroastrian faith this would be considered as opposition to the religious underpinnings of the Iranian regime. Further to this, as a non-Muslim you would not be afforded the same treatment in court should you have to attend on the rape matter.
I consider your reasons for why you think you would be harmed if you go back to Iran, are incorrect because you were in a relationship with your wife [Ms B] at the time you were claiming you were in a relationship with [Ms A]. It then follows, that you were not wanted by [Ms A’s] family or the police in relation to this matter. Further, your conversion to the Zoroastrian faith affecting any court proceedings is irrelevant given the incidents you described in relation to [Ms A] are incorrect. You were able to return to Iran and stayed there four and a half months. You were issued an Iranian passport in the identity you claimed was of adverse interest to the authorities. You entered and departed Iran without any apparent issue which would indicate your claims for protection were incorrect.
At Question 46 of the Form 866C which asks: Do you think the authorities of that country can and will protect you if you go back? If not, why not? The applicant answered:
"See statement attached to RSA application"
You claimed the police would request you to attend the police station to answer the allegations of rape. Further, you state if the authorities discovered you had converted to the Zoroastrian faith and because of your anti-regime interview with the media once you were in Australia, you would be arrested and harshly dealt with in the courts.
I consider this answer is incorrect because the police would not be requesting for you to attend the police station in relation to the allegations of rape. This is because you have provided information indicating you were in a relationship with [Ms B] when you were supposed to be in a relationship with [Ms A] and during the time the incidents occurred with [Ms A] being beaten and committing suicide. I consider this means you provided incorrect information about your relationship with [Ms A] and resulting incidents with the police and family of [Ms A]. I consider you returning to Iran and remaining there for four and a half months indicates you are not wanted by the police for the rape allegation and/or for your imputed political opinion. Further, it appears you were able to enter and exit Iran without coming to the attention of the authorities and you were able to stay in Iran for a lengthy period of four and a half months without suffering apparent harm.
I consider you did not fear the authorities because you were able to return to Iran for a period of four and a half months. You remained in Iran even after your wife was granted her visa and departed Iran on her own. I consider had you feared the authorities for the reasons you described in your Protection visa application, you would not have applied for an Iranian passport in the identity you claim was of adverse interest to the authorities, voluntarily returned to Iran and remained living there for four and a half months and exit Iran without suffering apparent harm or persecution at the hands of the Iranian authorities.
The delegate in the NOICC concluded that for the above reasoning given above, they consider there has been non-compliance with s.101(b) of the Act and therefore, the applicant’s Protection (subclass 866) visa was being considered for cancellation under s. 109 of the Act.
Response to the NOICC
In relation to the NOICC the applicant sent email correspondence to the Department on 10 October 2018 requesting an extension of time to provide a response to the NOICC stating: ‘Hello. I have received both your emails and letter. I actually need a lawyer and I’m looking for one now. Please give me more time extensions to find a lawyer.’
The Department replied to the applicant’s enquiry by email on 11 October 2018 as follows:
‘Thank you for your Email.
Unfortunately, there is no provision within the Migration Act to give you an extension to reply to the Notice. You are required to provide a response within the timeframe given.
Any information you provide up until the decision is made will be taken into account and considered in making the decision.’
The applicant provided the following email submission relating to the NOICC on 11 October 2018:
‘The main reason for visit to Iran was because I suffering from mental discomfort and I suspect I may have had depression at the time.
This was the result of [Ms A’s] family intimidating my family back home.my father had [a medical condition] as a result of her family’s intimidation and he was admitted to the hospital and I had to go back to see him, he died after 3 months.
The reason for my marriage with [Ms B] was because we had a lot of shared interest and no religious matters were considered no discussed as they were not significant importance. she doesn’t believe any religion for some reason that related to government have to say I’m Muslim because she lived in Muslim governments.’
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 15 February 2019.
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 that 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 and that the applicant had not complied with s101(b) of subdivision C of the Migration Act 1958.
The delegate gave reasons for the decision on the applicant’s non-compliance with s101(b) of the Act as follows:
The visa holder stated in his Protection visa application that he could not return to Iran due to fears he would be harmed by the family of [Ms A] who accused the visa holder of raping [Ms A]. He stated he was also wanted by the authorities in relation to the accusation of rape. He claimed he had converted to Zoroastrian faith approximately 13 years ago. He claimed he would face harsh treatment in court due to his conversion to Zoroastrian faith if he were to be prosecuted in relation to the accusation of rape.
He claims he had made statements to the media in relation to his treatment at Christmas Island which could potentially have been heard by Iranian authorities.
The visa holder provided incorrect information in relation to his claims regarding [Ms A] and his fears regarding her family and the authorities who he believes would take him to court. Further, the visa holder provided incorrect information in relation to claims that he would be unable to return to Iran as he would be arrested and sent to court. The visa holder’s claims in relation to converting to the Zoroastrian faith and potentially harsh treatment in court should he be arrested on return to Iran, are incorrect. The visa holder was in a relationship with his wife [Ms B] at the time he claimed to be in a relationship with [Ms A] and his marriage certificate refers to his religion as Muslim contradicting his claim of conversion. Further, his claim of being arrested and sent to court for the rape allegation is incorrect as I find the visa holder was not in a relationship with [Ms A] and therefore, his claims in relation to [Ms A] are incorrect.
The visa holder stated in response to the Notice that his family had suffered due to the family of [Ms A] intimidating them and his father was admitted to hospital as a result. While I accept his statement that he returned to see his family in Iran, I find he had an opportunity to provide evidence of his father’s ill health and subsequently his passing away and he did not. Further, he stayed on in Iran even after his wife had departed Iran on her own indicating he did not fear authorities or the family of [Ms A] as claimed.
The visa holder claimed in May 2011 he had given a telephone interview to [Journalist A] based in London speaking about the problems he faced in Iran and this program was broadcast in Iran. The visa holder had spoken to the media at various times while in detention complaining of his treatment in detention. He claimed his anti-regime attitude would place him at risk should he return to Iran. I find if he held an adverse political profile in Iran he would not have been able to enter safely and remained living in Iran for a lengthy period without coming to the attention of the authorities.
I find the visa holder provided incorrect information in relation to his claims given he was able to voluntarily return to Iran after the grant of his Protection visa, and remained living there for four and a half months without issue. He remained in Iran even after his wife [Ms B] left Iran after the grant of her [Partner] visa. The visa holder’s claims he would be harmed by the family of [Ms A] and the authorities in Iran, should he return to Iran, are incorrect because he was in a relationship with his wife [Ms B] at the time he claimed he was with [Ms A] therefore I find the relationship with [Ms A] did not exist. The fact he was able to enter and exit Iran, he obtained an Iranian passport in [Australia] in his identity, he was able to remain in Iran for a lengthy period of four and a half months, he did not travel with his wife [Ms B] once her Partner visa was granted indicates he did not hold an adverse profile in Iran. The visa holder remained in Iran under the claimed adverse identity without issue or impediment to his stay.
In relation to the decision to cancel the applicant’s Protection visa, the delegate had regard to the applicant’s response to the NOICC and made the following assessment:
Did the visa holder give reasons why the visa should not be cancelled? Yes
Reasons:
The visa holder stated he is suffering from mental discomfort and may have had depression at the time he went to Iran.
Assessment:
In coming to the following assessment I have taken into account the visa holder’s response to the Notice of Intention to Consider Cancellation, the relevant legislation in the Migration Act 1958 and the guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation.
My assessment of the visa holder’s response and all the prescribed circumstances as set out in Migration Regulation 2.41 is as follows:
(a) the correct information
The correct information is that the visa holder was not wanted by the police in Iran or the family of [Ms A]. The visa holder was therefore not at risk of persecution in Iran as a result of the claim he was accused of rape. Further, his claim he would be treated differently in court because of his faith is not correct as I find he is a Muslim as stated on his marriage certificate. The visa holder also maintained that he was at risk of harm in Iran due to his adverse political profile for his anti-regime attitude expressed while he was in detention at Christmas Island. I find the visa holder was not at risk of harm in Iran due to his imputed anti-regime political opinion. He voluntarily applied for an Iranian passport in [Australia] in his own name. He voluntarily travelled to Iran and entered Imam Khomeini airport and remained living in Iran visiting his family, for around four and a half months without issue or impediment.
As such, I give this consideration no weight in favour of the visa holder.
(b) the content of the genuine document (if any)
There are no documents in question therefore I have not considered this factor.
(c) 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 visa holder’s claims for protection relied upon having suffered persecution from the family of [Ms A] and subsequently the authorities who issued a letter requesting him to attend the police station. The visa holder also claimed to have converted to Zoroastrian faith and he would not receive a fair trial in court as a non-Muslim.
As I have found the visa holder’s claims for protection in Australia relied partly on incorrect information and therefore may have impacted on the decision to grant him a Protection (subclass 866) visa, I give this consideration no weight in favour of the visa holder.
(d) the circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are that the visa holder stated he would suffer persecution in Iran for reasons of his race, his religion as a Zoroastrian convert, his anti-regime attitude, his relationship with [Ms A] and subsequent allegation of rape made by the family of [Ms A].
The visa holder in response to the Notice did not address any of the factors apart from continuing to claim that his family in Iran faced retribution from the family of [Ms A] causing his father to fall ill. As such I find the circumstances in which the non-compliance occurred do not appear to have been as a result of factors beyond the control of the visa holder. I give this consideration no weight in favour of the visa holder.
(e) the present circumstances of the visa holder
The visa holder stated he was suffering from mental discomfort and he believes he may have had depression at that time when he returned to Iran. The visa holder did not provide any evidence to support his claim of having suffered from mental health issues.
He stated he returned to Iran to see his father who was ill and died three months later. He stated he married [Ms B] because they shared similar interests.
The visa holder is living with his wife whom he sponsored to come to Australia and who holds a [Partner] visa.
I give this consideration some weight in favour of the visa holder.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The visa holder replied to the Notice however he is not in agreement that non-compliance has occurred and therefore has not complied with the obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958. I give this consideration no weight in favour of the visa holder.
(g) any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the visa holder which are known to the Minister and I give this consideration a little weight in the visa holder’s favour.
(h) the time that has elapsed since the non-compliance
The non-compliance occurred at the time the visa holder applied for his Refugee Status Assessment on 1 October 2010 approximately eight years ago. I acknowledge the visa holder in this time may have established ties to the community. Given the length of time since the non-compliance occurred I give this consideration a little weight in favour of the visa holder.
(j) any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law since the non-compliance therefore I give this consideration a little weight in favour of the visa holder.
(k) any contribution made by the holder to the community
The visa holder did not address this factor however I note as the visa holder has resided in Australia for nine years, there may be some contribution made by the visa holder to the community therefore I give this consideration a little weight in the visa holder’s favour.
My assessment of the visa holder’s response includes the following other matters:
·Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
The visa holder’s wife [Ms B] holds a [Partner] visa granted on 1 October 2014 which was granted because the visa holder sponsored her for the visa. Therefore, [Ms B] holds a visa which would, or may, be cancelled per s.140(2) of the Act. A separate decision will be made in relation to [Ms B] if the visa holder’s visa is cancelled. Given the cancellation of the visa holder’s visa will result in consideration of cancellation of his wife’s [Partner] visa, I give this consideration some weight in favour of the visa holder.
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The visa holder was born in Iran and is a citizen of Iran. The visa holder sought protection in Australia so he did not have to return to Iran where he claimed to fear persecution. However, I have determined the visa holder’s claims for protection were not correct. The visa holder has voluntarily returned to Iran since the grant of the visa using an Iranian passport issued in [Australia] in his identity without issue or impediment.
A decision to cancel a visa is not of itself a decision to remove a person from Australia and therefore it is not, a breach of non-refoulement obligations. If the visa holder’s visa were cancelled, an International Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. I therefore consider a decision to cancel the visa holder’s visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention. An ITOA would assess, among other things, whether the visa holder would be at risk of harm in his country of origin.
I give this consideration some weight in favour of the visa holder.
·Whether there are mandatory legal consequences to a cancellation decision.
If the visa is cancelled the visa holder would no longer hold a valid visa and he would become an unlawful non-citizen in Australia. I have considered the effect in that the visa holder would be liable for detention under section 189 of the Act and removal under section 198 of the Act if he was not willing to voluntarily depart Australia.
I note should the visa be cancelled, the visa holder would be subject to Section 46(1) of the Act, barring him from making a valid application for a further visa. I note as an IMA, should the visa holder’s visa be cancelled and should he become an unlawful non-citizen, he would also be subject to Section 46A(1) and barred from making a valid application for a further visa, including bridging visas, and may be detained. I note however that as the visa holder is an Iranian citizen and holds a valid Iranian passport he could negate indefinite detention by voluntarily returning to Iran.
The visa holder may be affected by Public Interest Criterion 4013 which limits the grant of a further temporary visa for a specified period.
The visa holder may make an application for merits review of the cancellation decision.
I do not consider it unreasonable for a person to be subject to administrative sanctions as a result of non-compliance in relation to their visa.
I acknowledge the mandatory consequences to cancelling the visa may cause the visa holder hardship and as such I give this consideration some weight in the visa holder’s favour.
·Any other relevant matters: None noted
The delegate noted that in view of the findings and assessment above, the delegate decided to cancel the applicant’s visa. While the delegate had given weight in favour of the applicant to the hardship cancellation of the visa may cause him and his wife, the delegate found that the applicant’s non-compliance to be significant and resulted in the grant of a Protection visa where he may otherwise not have been eligible for the visa. Further, the delegate found that the reasons not to cancel the visa did not outweigh the grounds for cancellation, and decided to cancel the applicant’s Protection (subclass 866) visa.
Pre-hearing Submission
On the day prior to the hearing, the Tribunal received a written submission in the form of a statutory declaration of the applicant dated 17 November 2019.
The Tribunal has extracted the following material information from that statement
My protection visa was cancelled on the 15th of February 2019.
The delegate who made the decision came to the conclusion that I had provided incorrect information in my protection visa application. I disagree with the delegate and I would like to explain the following as to why I disagree with the delegate.
I have never provided any false or misleading information in the past. This includes the information I provided in my protection visa application in Austraila. Everything I said in the statement of claims I provided as part of my application for a protection visa was true and correct and reflected my past life.
Travel to Iran after my PV was granted
When [Ms A] committed suicide, her family blamed me and wanted me dead as well because they were too upset about her death but after a few years, they started asking blood money from my family and were putting pressure on my family demanding the money and my family had to deal with them on an ongoing basis, in particular my father suffered a lot because he was constantly verbally abused and intimidated by [Ms A’s] family. This had not only affected his mental health but also his physical health with [specified symptoms’.
A few months before my trip to Iran, I was suffering from mental discomfort and I suspect I may have had depression at the time. I felt guilty that I was the cause of such discomfort to my family.
My brother [Mr C] said that if I paid [Ms A’s] family the money they were demanding, they would withdraw their complaint. They were asking for [Amount 1] Toman in return of her blood money which was about $[Amount 2] at the time. Subsequently I took out a personal loan from [Bank 1] for the amount $[Amount 3] to pay for the compensation and also a bit extra for other possible costs as well as my personal use. Around end of 2012/early2013, I sent the money to my brother so he could pay [Ms A’s] family. I wanted to put an end to all of this.
[My brother] said that I might have to be physically present in Iran to finish the court problems and so (I think towards the end of 2012) I applied for an Iranian passport from the Iranian embassy in [Australia] and I was issued with one, the same one I presented to the officials at [the] airport when I left Australia and I assume they have a copy of it somewhere. I do not have a copy of that passport to present to the Tribunal.
Around early March 2013, my father had a [medical condition]. I spoke to him on the phone and he told me he was dying. He said his only wish was to see me before his death so I decided that I should grant his wish. My [brother] had already paid the blood money to [Ms A’s] family but he had not received "a clearance" from the court as yet.
I knew there may be risks involved with my trip to Iran but I was prepared to take them because my father was far more important for me. I travelled to Iran [in] March 2013 ([Persian date].)
My passport was confiscated by the Iranian authorities upon arrival at the airport. I was told that I had an "unresolved issue" and I was banned from leaving Iran. They told me to go to the revolutionary court in Kermanshah to resolve this issue. I was free to leave the airport after about two hours of questioning.
My father died less than [number] weeks later, on [date].
My marriage to [Ms B]
I had known [Ms B] for many years prior to coming to Australia because her parents and my parents lived in the same neighbourhood. We did not have a relationship of any sort prior to my trip to Australia in 2010.
Probably about less than a year after my arrival in Australia, whilst I was still in Immigration detention, I started communicating with [Ms B] via telephone. [Ms B’s] cousin who was my close friend put us in touch with one another because I asked him to. I remembered [Ms B] from years earlier, she was beautiful and was an [occupation] and I thought she would be good person for me to marry.
A few months later, when I left detention and we decided to get married, I gave my brother [Mr C] power of attorney to help me register my marriage with [Ms B] in order for her to come to Australia. Her family would not have consented to her departure from Iran otherwise.
At the time, we did not have a migration agent helping us with [Ms B’s] partner visa application. [Ms B] completed of the form, both mine and hers. I never checked any information on the form before signing it. The Iranian calendar and the Australian calendar are very different in every way and I do not kriow how to convert them accurately. Based on the dates I saw in the cancelation letter, I believe [Ms B] had made an error in converting the dates we started our relationship because although I do not recall many of the dates, I am certain about the sequence of events and I am certain 100% that I did not start communicating with [Ms B] until about a year or so after leaving Iran so it could not have been 6 months before I left Iran.
My marriage certificate / Muslim ceremony
My brother [Mr C] represented me for registration of my marriage. He went through an official routine process to do this. In Iran if a person is born in a Muslim family, it is assumed that person is also a Muslim and prior to marriage no one asks what religion a person have, its assumed as Shia/lslam and we were no different. I never participated in any Muslim marriage ceremony, it was my brother on my behalf who simply went to a marriage registry office and signed paperwork on my behalf. This was in no way my confirmation that I was a Muslim.
My stay in Iran after my father’s death
[Ms B’s] partner visa was granted in April 2013 whilst I was in Iran. Her visa required her to make her first entry to Australia by a certain date; being about a month after it was granted at the time.
It would have been perfect for us to travel back to Australia together but I could not leave Iran because my passport was confiscated upon arrival. [Ms B] came to Australia on her own and I asked friends to look after her until I came. I also lost my job because I did not return on time but we had no other option.
For the next few weeks I tried to get a new passport. Apart from the accusation of her death [Ms A’s] family had told the authorities that I was an infidel/ Zoroastrian and against Islam. Because of this, I was interviewed by the Ettela'at section of the passport office about the accusations of being anti Islam and I told them they were false. I did this because otherwise I would have been arrested and imprisoned and could not leave Iran.
[My brother] also found someone who he paid money to and helped with the passport process. I was told that I could use the passport to leave Iran once only. The passport with the [number], issued [in] 2013 was issued in Iran and not the Iranian embassy in [Australia] as the delegate has wrongly stated in the cancellation decision and the fact that I applied for this passport in Iran, confirms that the passport I left Australia on was indeed confiscated upon arrival in Iran.
I did not stay in Iran for an extended period of time out of joy, it was not a matter of choice, I just could not leave Iran for the reasons I have explained above.
Problems with [Ms A’s] family
As I explained, my problems with [Ms A’s] family were resolved after I paid them the blood money. The reason I was interviewed by the Ettela'at in Iran prior to my departure was because [Ms A’s] family, in their complaint to the authorities had included my lack of belief in Islam and belief in Zoroastrianism and that issue remains outstanding because if [my brother] had not paid his contact, I would have possibly been further questioned, imprisoned and not allowed to leave Iran.
Why my visa should not be cancelled
I confirm again that I never provided any incorrect information in my protection visa application. I acknowledge my circumstances have changed since I first arrived in Australia and that the Iranian authorities are not looking for me because of [Ms A’s] death but this does not mean I provided false information in my PV application.
I believe my lack of familiarity with the Australian migration law and also my poor English has resulted in my visa cancelation. I believe if the cancellation officer knew all the things I have explained now, she may have formed a different view in regards to cancelling my visa.
I have only travelled to Iran once which was over 6 years ago and for a short period of time and under a lot of pressure and extra ordinary circumstances. I have not travelled to Iran since and will not travel again in future.
Although the issue with [Ms A’s] family is somewhat resolved now, It was the reason I left Iran when I did 9 years ago and I never provided any wrong answers in my protection visa application.
I have always been honest in all my dealings with the department of Immigration as well as other agencies. I declared on my outgoing and incoming passenger cards that I was going to and returning from Iran and I presented my new Iranian passport to them in arrival. In my travel document, my nationality is recorded as "stateless" and I recall them questioning that how could I have an Iranian passport when it said I was stateless and I told them it was an error by the department and that I was not stateless.
I believe my visa should not be cancelled because Australia is my home and has been my home for the past 9 years or so. I have always been a good person of good character. I have always abided by the laws of this land and everyone else to do the same and I am proud to say that I have never breached the law in Australia in any way.
Australia is my home and I hope to become an Australian citizen in the near future. I know that I will continue to make a difference and paly a positive role in various levels of the Australian society.
Review Hearing
132. Subsequent to the hearing, the applicant provided what purported to be a copy of a court document – a document that he claims was obtained by a family member, and for which he can not vouch as to whether it is even a version of the document referred to in his direct evidence. An original version of the document has not been made available to the Tribunal as it is claimed only a copy was sent to the applicant. Notwithstanding, the translation is a confusing piece of work, stating that [Mr A] (the father of [Ms A]) presented himself at the [official agency] on [a date in] November 2012 and expressed his “unconditional consent in regard to [the applicant] in relation to false accusation and calumny and had rendered null from himself every complaint related to this file. Therefore, this court……issuing the judgement in acquittal of [the applicant] in relation to false accusation and calumny against [Mr A]”. The Tribunal finds it confusing in that the applicant claims that the complaints made against him by [Ms A’s] family relate to allegations of rape, but the court document references an acquittal of the applicant in relation to a false accusation against [Mr A]. The Tribunal can only speculate that as a consequence of an allegation being made against the applicant, he, in turn, made an allegation of false accusation against the father of [Ms A].
133. Against the aforegoing, the applicant has provided to the Tribunal a reasonably plausible explanation as to how he managed to navigate his way to and from Iran and through its intricate security services.
134. His reason for returning to Iran was passionately explained.
135. He provided some detail as to what happened to him at the airport upon his return, where he claims he was detained and interviewed for some hours before being released on condition that he report to a court to “deal with the outstanding matter”.
136. He provided some detail as to a payment he made to his brother to pay off the family of [Ms A]. When questioned by the Tribunal about loan amounts and dates of loans, his evidence was consistent and his recall was without pause. Whilst his explanation as to not obtaining records from the bank about his loan is of concern to the Tribunal, he did subsequent to the hearing provide to the Tribunal a record of a transfer made by [a named service] of $[Amount 4] to a bank account in Iran which was stated to be the account of his brother. The Tribunal has independently verified that the agent he used to transfer funds from Australia to Iran was a registered business at the time trading in currency exchange and transfers.
137. The Tribunal queried the applicant extensively about his concerns as to his religion. His evidence was consistent with evidence provided to the IMR in that he had not formally converted to Zoroastrianism but had observed it as a faith in both Iran and in the detention centre. A letter from a [named pastor] confirmed that the applicant was a member of the Zoroastrian faith and a part of the Zoroastrian community on Christmas Island when he was in detention. He claimed that he was quizzed about his religious faith when held at the airport upon his return and he replied emphatically that he was not Zoroastrian.
138. The Tribunal accepts that it is possible, according to Country Information, for the Iranian authorities to be aware of a national’s religious practices, even whilst abroad. However, the applicant has not actually converted and his marriage certificate assumes that he is Muslim. He is not required to state his religion on the marriage certificate, and in any event, the applicant did not physically attend his marriage – his brother signed his marriage certificate as a proxy. There appears to be no physical evidence to confirm that the applicant has converted on which he could be condemned.
139. The delegate had concerns as to the dates of his relationship with his wife, forming the view that due to a date stated on her application for a partner visa, that relationship coincided with the date he was purportedly in a relationship with [Ms A]. Given that the applicant did not respond meaningfully to the NOICC, it is reasonable for the delegate to proceed on that basis as the evidence was unchallenged. However, when queried by the Tribunal as to that inconsistency, the applicant provided a logical and plausible explanation as to how that mistake (as to the date) was made and went in to some detail about how his relationship with his cousin (now his wife) was commenced.
140. The Tribunal also interrogated the applicant about the statements he had made to media about his treatment in Australian detention camps. It asked how he was not concerned by their existence, and by his claim that they had been broadcast into Iran, when he returned to Iran. He replied that he did not think of that. He stated he was preoccupied with returning in time to see his father before he passed. He admitted to being frightened at the airport whilst detained, but no questions were asked about his broadcasts.
141. The Tribunal noted that that could be consistent with country information referenced above -that 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.
142. The Tribunal addressed an issue of inconsistency in the applicant’s statements about his passport. It accepts that given the effluxion of time, he could be excused for making an error as to which document he used to depart Australia – his Australian travel document rather than his Iranian passport.
143. In questioning the applicant about how he again departed Iran given his statement that his passport had been confiscated upon his arrival, and the reasons as to why he remained in Iran for four and half months, given he only returned to Iran to see his father who unfortunately passed away within [number] weeks of his arrival, the applicant provided a very detailed account of the time it took him to resolve his court matter with [Ms A’s] family (which his brother was unable to conclude in his absence), his need to secure a document from the court for the passport office where he was applying for a new passport, and the issue of his new passport.
144. He stated, and provided a copy, that his passport was issued in Iran on [a date in] 2013 and that he departed [a specified period] later. The Tribunal examined the passport and accepts that it was issued in Iran.
145. The applicant explained his position that the reasons for his application for a protection visa were absolutely true at the time of making the application but concedes that his circumstances, by way of payment of blood money to [Ms A’s] family and the settlement of the allegations made against him, have changed since making the application. Whilst he denounced that he was Zoroastrian, he claims that is not a position he would wish to maintain. It suited him to be able to deny it when asked in interview, but claims his religious beliefs will still be an issue if he had to return to Iran permanently.
146. He reminded the Tribunal that he has at all times been honest with the department, at no time denying to Australian authorities that he had returned to Iran and even correcting them when they noted he was categorised as stateless.
147. The Tribunal notes that the applicant made a brief remark about his brother paying a bribe to facilitate his departure from Iran which was repeated by the Representative in her post hearing submission. No other evidence was provided in relation to that statement, and the Tribunal notes that it would appear to be in contrast to the country information cited above about the strict processes and multiple checkpoints upon departure. The Tribunal senses the remark was made to enhance his explanation as to the challenges he faced departing Iran, and the Tribunal finds that the remark does his credibility no favour.
148. As discussed above, the Tribunal accepts that the applicant has a plausible explanation as to how he managed to return to, and subsequently depart, Iran, in the face of the fears he claimed to have when he made application for, and was granted, a protection visa. His explanations were plausible, and despite the lack of any corroborative evidence at the hearing, the applicant and his Representative have managed to adduce some physical evidence, some of it useful, in support of his direct evidence.
149. The issue for the Tribunal is whether to believe the applicant’s explanations. As explained earlier, the Tribunal has been primarily troubled by the fact that the applicant did not provide a meaningful response to the NOICC. The short remark made about [Ms A’s] family was at least consistent with other evidence and earlier claims.
150. His explanation at the hearing was that he was confused by the process and there were language barriers, an explanation supported by the Representative in her post hearing submission.
151. He also explained that he did attempt to seek an extension from the department (supported by evidence of emails between the applicant and the department on 10 and 11 October 2018). He also explained that he sought advice from a migration service who he claimed could not support him and advised him that he must make a response, even if only brief. He lodged his response on 11 October 2018.
152. Accordingly, on the one hand, the Tribunal has been presented a plausible explanation as to how the applicant managed his safe return to and from Iran, albeit with some inconsistencies and short comings identified above. On the other, an explanation as to why such plausible explanation was not presented to the department at the time of making his response to the NOICC.
153. The Tribunal, mindful of the High Court’s decision in Zhao v MIMA, cited earlier, where it was said: “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” finds itself in the position of having to give the applicant the benefit of some doubt, and accordingly accepts the applicant’s explanation as to why he did not provide a plausible and meaningful response to the NOICC.
154. For these reasons, the Tribunal finds that there was no non-compliance with s.101(b) 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
155. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins
MemberATTACHMENT – 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.
Key Legal Topics
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Breach
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