1913224 (Refugee)

[2020] AATA 3776

1913224 (Refugee) [2020] AATA 3776 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913224

COUNTRY OF REFERENCE:                   Iran

MEMBER:David McCulloch

DATE:11 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 11 August 2020 at 9:02am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – citizenship status – claimed statelessness – Iranian citizenship – consideration of discretion – non-refoulment obligations – particular social group – homosexual – sexuality – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The delegate cancelled the visa on the basis that incorrect answers had been provided in an application for a visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 30 June 2020 at 9.30am to give evidence and present arguments. Because of COVID-19 the hearing was not held in person, but by video link with the applicant present in the immigration detention centre where he is being held.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

6. 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

7. 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.

8. 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.

9. 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?

10. 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 as follows:

    This letter refers to your Protection (subclass 866) visa which was granted on 9 December 2009. As a delegate of the Minister, I consider that you did not comply with section 101(b) of the Migration Act 1958 ('the Act').

    If this is the case, your visa may be cancelled under section 109 of the Act.

    Particulars of the possible non-compliance:

    I consider that there has been non-compliance with the following section(s) of the Act:

    Section 101. Visa applications to be correct

    s101.   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.

    By operation of s99 of the Migration Act 1958, 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.

    [In] October 2009 you arrived on Christmas Island as an illegal maritime arrival (IMA). You claimed to be a stateless Faili Kurd from Iran seeking asylum in Australia.

    On 19 November 2009 you requested a Refugee Status Assessment (RSA) by the Department in which you made claims that you were owed protection under the Refugees Convention (United Nations 1951 Refugees Convention).

    On 1 December 2009 you were found to be owed protection under the Refugees Convention in relation to the Status of Refugees.

    On 4 December 2009, the Minister lifted the bar to allow you to lodge a Protection visa application.

    On 8 December 2009, you lodged an application for a Protection (subclass 866) visa. As part of this application you completed Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee.

    At question 1 of Form 866C, it asked "What is your full name?" you stated:

    Family name:             [Surname 1]

    Given names:             [First name 1] [Middle name 1]

    At question 4 of Form 866C, it asked "What other names have you been known by?" you did not provide an answer to this question.

    At question 7 of Form 866C, it asked "Date of birth" you stated "[Date 1]" and age "[age]".

    At question 8 of Form 866C, it asked "Place of birth" you stated:

    Town/city:                 [Village 1], Qom

    Country:  Iran

    At question 19 of Form 866C, it asked "Your citizenship at birth" you stated "Stateless".

    At question 20 of Form 866C, it asked "Your current citizenship" you stated "Stateless".

    At question 21 of Form 866C, it asked "Do you hold any other citizenship or are you a national of any other country?" you stated "No".

    At question 22 of Form 866C, it asked "Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other that your country(s) of nationality or your former country(s) of habitual residence?" you stated "No".

    At question 23 of Form 866C, it asked "If you are stateless, how, when and why did you lose your citizenship?" you stated "Stateless - Born in Iran. Parents are stateless. Never had citizenship in Iraq or Iran."

    In the absence of any identity documents, the delegate accepted that you were a stateless Faili Kurd from [Village 1], Iran. Based on the identity you presented, as well as the claims provided in the RSA interview regarding your fear of persecution in Iran, you were found to be a person who engaged Australia's protection obligations and were granted a Protection visa on 9 December 2009.

    On 16 November 2018 you were issued with a Notice of Intention to Consider Cancellation under section 116(1AA) - the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.

    In response to this Notice, you admitted you were an Iranian national holding an Iranian shenasnameh issued to you shortly after birth.

    To support your claims of being an Iranian national, you submitted a copy of your Iranian shenasnameh and its English translation. Your shenasnameh contained the following details:

    Birth Certificate No:                [number]

    First name:  [First name 1]

    Surname  [Surname 1]

    Date of Birth:  [Date 2]

    Place of Birth:  Tehran

    Date of Issue:  [date]

    Place of Issue:           Tehran

    The shenasnameh also contained the details of your parents and their own unique shenasnameh numbers:

Father:	[Mr A]	Birth Certificate No: [number]	Place of Issue: Qorn
Mother:	[Ms B]	Birth Certificate No: [number]	Place of Issue: Qorn

A shenasnameh is issued to all Iranian citizens at birth and contains basic family details including the name and status of the person's parents indicated by their own unique shenasnameh number.

Country information advises, by operation of Iran's nationality laws (Article  976):

"The following persons are considered to be Iranian subjects:

(1) All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government.

(2) Those bom in Iran or outside whose fathers are Iranian."

It appears that your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates that you acquired your Iranian citizenship at birth by virtue of your father's Iranian citizenship. Therefore, it appears you are an Iranian citizen and were so at the time of your Protection visa application.

It, therefore, appears at the time of your Protection visa application, you did not comply with section 101(b) of the Act because it appears you have provided incorrect answers regarding your identity as a stateless Faili Kurd.

I consider your answer to question 7 of Form 866C incorrect because your shenasnameh indicates you were born on [Date 2]. It appears you are a documented Iranian citizen and would have been aware that [Date 1] was not your correct date of birth at the time of your Protection visa application.

I consider your answer to question 8 of Form 866C incorrect because your shenasnameh indicates you were born in Tehran, Iran. It appears you were not born in [Village 1], Iran as claimed in your Protection visa application.

I consider your answer to question 19 of Form 866C incorrect because it appears you are an Iranian citizen. Your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates that you acquired your Iranian citizenship at birth by virtue of your father's Iranian citizenship, and therefore you were not stateless by birth as claimed in your Protection visa application.

I consider your answer to question 20 of Form 866C incorrect because it appears you are an Iranian citizen and were so at time of your protection visa application. Your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates that you inherited your Iranian citizenship by birth by virtue of your father's Iranian citizenship, and therefore you were not stateless at the time of your Protection visa application.

I consider your answer to question 21 of Form 866C incorrect because it appears you hold Iranian citizen and did so at time of your protection visa application. Your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates that you held Iranian citizenship, and were a national of Iran at the time of your Protection visa application.

I consider your answer to question 22 of Form 866C incorrect because it appears your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates that you held Iranian citizenship and had the right to enter and reside permanently in Iran at the time of your Protection visa application.

I consider your answer to question 23 of Form 866C incorrect because it appears your parents were Iranian citizens and were issued with unique shenasnameh numbers as evidence of their Iranian citizenship. Given Iranian citizenship is passed through the paternal line, this information indicates you acquired Iranian citizenship by birth and still hold Iranian citizenship. I consider you were not stateless as claimed at the time of your Protection visa application.

Therefore if any or all of these answers are found to be incorrect, you have not complied with section 101(b) of the Act and your Protection (subclass 866) visa will be liable for cancellation under section 109 of the Act.

1. A response to the s.107 notice was provided on behalf of the applicant by his migration agent. This submission concedes that the ground of cancellation is made out but makes submissions in relation to discretionary factors (considered in the next section). The submission provides:

   SUBMISSION

   1. This is a submission in response to the Notification of Intention to Consider Cancellation under s109 of the Migration· Act, dated 8 April 2019.

   2. The delegate considers cancellation of the visa on the basis that the applicant provided incorrect information mainly in relation to his citizenship status in his application for permanent protection visa 866, which was subsequently granted on 9 December 2009.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   3. 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.

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

   4. The issue before the delegate 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.

   5. The applicant concedes that he provided wrong information in relation to his citizenship status upon his arrival at Christmas Island and at the time he lodged his application for protection visa.

   6. On the basis of the concessions of the applicant, we submit that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

   7. As the applicant concedes there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is before the delegate to consider whether or not 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).

   8. In exercising this power, we request the delegate to consider our submission and have regard to prescribed circumstances under s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

   9. We submit that the prescribed circumstances 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. We request the delegate to have regard to lawful government policy, set out in the Department's Procedural Advice Manual) PAM3 'General visa cancellation powers'.

   R.2.41 prescribed circumstances

   The correct information

   10. The visa-holder concedes the correct information is

   ·Surname: [Surname 1]

   ·Date of Birth: [Date 2]

   ·Place of Birth: Tehran

   ·Citizenship since birth: Iranian

   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

   11. On the basis of the visa-holder's concessions, we acknowledge that the decision to grant visa was based on incorrect information.

   The circumstances in which the non-compliance occurred

   12. The visa holder advises that he claimed being stateless on the basis of the people smuggler's advice. He was scared that he would be kept in detention for several months before being deported to Iran.

   The present circumstances of the visa holder

   13. The visa-holder is a full time [Occupation 1]. He is a responsible person and has not been involved in any kind of wrongdoing. He has been suffering from gout arteritis since 2016. This has seriously affected his enjoyment of life.

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

   14. The visa holder concedes that he provided wrong information to the Department. He responds to the NOICC in full honesty. As a hardworking person who has been living in Australia for several years, he now understands the seriousness of providing incorrect information and is truly remorseful for providing incorrect information to the Department in the past.

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

   15. The visa-holder has not had any other instances of non-compliance. He states he has had otherwise fully complied with his visa conditions.

   The time that has elapsed since the non-compliance

   16. The non-compliance occurred when the visa-holder applied for his protection visa in December 2009. The visa-holder has lived for 10 years in Australia and has fully embraced Australian culture.

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

   17. There are no other instances of the visa-holder breaching the law. He states he has had otherwise fully complied with the law.

   Any contribution made by the holder to the community

   18. The visa-holder has not been engaged in specific volunteering or community work. However, he has helped asylum seekers and refugees in the community find employment. In several occasions during the last ten years, he has provided free accommodation at his place to asylum seekers and refugees until they could afford to rent a place. He has tried to.be a good citizen by working hard, paying taxes and respecting Australian values.

   PAM3 departmental guidelines

   Whether cancellation leads to non-refoulement obligation

   19. The visa-holder claims that since arriving in Australia in 2009, he has abandoned Islam and turned to atheism. The visa-holder also claims that he has formed strong resentment against the Islamic regime of Iran. He supports the political idea of regime change in Iran, which is shared by ultra-right Iranian political activists living in exile. He has not returned to Iran since he arrived in Australia and he fears that he will face serious harm on the basis of his political and religious views.

   Mandatory legal consequences

   20. The visa holder understands the cancelation of his visa would mean he would have difficulty applying for any future visa, would be put into detention and returned to Iran.

   Any other relevant matters

   21. The visa holder raises no other relevant matters.

   22. We request the delegate to have regard to the proscribed circumstances and to the guidelines in PAM. We submit that the delegate should give weight to the following considerations weighing in favour of not cancelling his visa:

   ·The visa-holder's concession that he provided incorrect information in the past;

   ·His current circumstances;

   ·His otherwise compliant behaviour in Australia;

   ·He has been in Australia now for a considerable period of time; and

   ·His fear of harm upon returning to Iran

   23. We submit that after weighing up all of the considerations, the considerations in favour ·of not cancelling his visa, including his concession that he provided incorrect information, his otherwise compliant behaviour, considerable period of time since the non-compliance and most importantly his fear of serious harm upon returning Iran outweigh the provision of incorrect information.

   24. Having regard to all of the circumstances individually and cumulatively, we submit that the correct and preferable decision is that the visa-holder's visa should not be cancelled.

   25. We request the delegate to make a decision not to cancel the visa-holder's Subclass 866 (Protection) visa

1. In the hearing the applicant agreed that incorrect information had been provided in his application for the protection visa.

2. On that basis, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

3. 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).

4. 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 Migration Regulations 1994 (the Regulations). Briefly, they are:

   ·     the correct information;

   ·     the content of the genuine document (if any);

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   ·     the circumstances in which the non-compliance occurred;

   ·     the present circumstances of the visa holder;

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

   ·     any other instances of non-compliance by the visa holder known to the Minister;

   ·     the time that has elapsed since the non-compliance;

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches;

   ·     any contribution made by the holder to the community.

5. 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 Procedures 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.

6. The submission extracted in the previous section above makes submissions in relation to discretionary factors.

7. The most important discretionary factor in this matter, in the Tribunal’s view, is whether cancellation would invoke Australia’s international obligations, particularly whether it would lead to lead to non-refoulment obligations. This is a similar, although not identical test, as to whether the applicant would face a requisite level of harm (in terms of the test for a protection visa) on return to Iran. This test would broadly include Australia’s international obligations in terms of the Refugees Convention.

8. In the Tribunal hearing, the applicant made new claims as to why he faces harm on return to Iran.  At the commencement of the hearing, the Tribunal explored with the applicant his birth and growing up in Iran and his life as an adult in Iran. The applicant indicated that he was born in Teheran and lived his whole life there until coming to Australia at the age of [age]. The applicant indicated that both his parents are still alive and live in Tehran, together with the adult siblings of the applicant, a brother and a sister. The applicant’s father is a [Occupation 2] and the applicant’s brother similarly works as a [Occupation 2]. The applicant’s mother and sister do not work.

9. The applicant indicated that he left school in year seven at the age of 14 and worked with his father as a [Occupation 2] up until he came to Australia at the age of [age]. The Tribunal asked the applicant about activities outside of work or organisations he was involved in. The applicant indicated that he had limited education and therefore there were no other activities. The Tribunal asked the applicant about having a social circle of friends. The applicant indicated that he would go to the park with friends. The Tribunal asked the applicant if he had a girlfriend in Iran. At this point, the applicant indicated that he had had relationships with individuals of the same sex. The applicant indicated that the first incident with a boy occurred when he was 14 years old in the change rooms at school when he had a sexual encounter with another student. This was discovered by authorities who told the applicant’s father, and the applicant was punished.

10. The applicant indicated that he, years later, at the age of 21 or 22, formed a one-year exclusive relationship with the person with whom he had had the encounter in the change room at the age of 14. The applicant indicated that, after this, until he came to Australia, he only had short encounters with individuals. The applicant referred to the lack of tolerance of homosexuality in Iran and the potential death penalty for homosexual acts.

11. The Tribunal asked the applicant if he had had any political involvement in Iran.  The applicant indicated that he had not. He indicated that his education was very limited. The applicant then indicated that he had had no firm political beliefs in Australia or Iran.

12. At various points in the hearing, when asked, the applicant indicated that he left Iran due to his sexuality and that he cannot return there because of his sexuality.

13. The Tribunal explored with the applicant the acting out of his sexuality in Australia. The applicant indicated that it took him a period to understand the acceptance of homosexuality in Australia. However, due to English barriers, the applicant did not take steps to engage with other homosexual men. Instead, the applicant met his sexual needs through the use of gay pornographic videos and a dildo. 

14. The applicant indicated that for the last five years or so he has visited, on a reasonably regular basis, what the applicant initially termed a swinging party or boys’ swimming pools. After further exploration with the applicant, it was clear that he was referring to gay saunas equipped with saunas, swimming pools and spas, together with cubicles where men can have sex. He indicated that he visits one sauna in [Suburb 1] called [Sauna 1] and another sauna in [Suburb 2] call [Sauna 2]. The applicant explained what would happen in one of the saunas when he would arrive in terms of identity being handed over and photographs taken of the applicant. The applicant told the Tribunal they could confirm all of this by contacting the relevant saunas.

15. The Tribunal indicated to the applicant that it was for him to provide necessary evidence to the Tribunal. The Tribunal gave the applicant two weeks following the hearing to, with the assistance of his migration agent, contact the relevant saunas to seek to have them provide attestations of the applicant’s membership, and instances of attendance at the saunas, or provide other evidence of visits to the saunas.

16. The Tribunal explored if the applicant had a gay social network and/or social contacts or relationships with individuals outside the gay sauna contacts. The applicant referred to one Asian man who he met in a sauna who he would meet up with consequently to go to other sauna events.

17. The Tribunal further explored the applicant’s social network in Australia, including friends on Facebook. It is clear on the applicant’s responses that he does not have a gay social network outside of attending gay saunas. The applicant indicates that he has Australian and Australian/Iranian friends, but they do not know about his sexuality. The applicant provided various indications in the Tribunal hearing that he is ashamed of his sexuality.

18. The applicant indicated in the hearing that he has never had a relationship with a woman.

19. The Tribunal asked the applicant why he made untrue claims for protection on arrival in Australia when true claims in relation to the applicant’s sexuality could well have founded a successful application for protection. In response, the applicant indicated that he had no awareness of the attitude to homosexuality in Australia. The Tribunal accepts the plausibility of this. However, as discussed below, this undermines the claim by the applicant in the hearing that he left Iran for Australia as a result of his sexuality.

20. More problematic for the Tribunal, and put to the applicant in the hearing, is that in the submission in response to the s.107 notice dated 29 April 2019 no claims are made in relation to the applicant’s homosexuality or that he faces harm in Iran on that basis. In response, the applicant indicated that he was confused and ashamed. He indicated that he had not revealed himself and had a scattered mind at that point.

21. The applicant provided the following Statutory Declaration following the hearing (not corrected for spelling or grammar):

    I am providing this statement in support of my review application at the Administrative Appeals Tribunal.

    My immigration lawyer, [Mr C], who is competent in Persian, as his mother tongue, assisted me in preparing this declaration. He read out the statement to me in Persian.

    As I mentioned during the hearing dated 30 June 2020, the reason that I provided incorrect information to the Department was that I was ashamed to state that I am a gay.

    I left Iran in 2009, because as a gay. Living in Iran as a gay was very hard. I was raised up in a conservative Shia Muslim family. I realised that I was a gay when I was around 14 years old. Since then until I departed Iran in 2010, I lived in constant fear of being known as a gay by the family, friends or the authorities. I felt ashamed of being a gay.

    As a gay, I experienced humiliation at school, family and military service. I was only 14 years old that I was physically punished by my teacher and then my father because I was caught while having sex with another gay classmate. This was the reason that my father did not allow me to go to school anymore. I did not finish year [level]. After that inciedent, I was so fearful and ashamed that I tried to keep my sexual orientation discreet.

    When I turned 18, I had to conscript for compulsory service. I was so scared that I delayed it for near 7 year. I had heard many bad things happening to gay soldiers during the service.

    Living as a gay in constant fear and shame of being identified by others had made the life very difficult for me. It had caused me severe depression. It was in 2007, that I started thinking about leaving Iran permanently but I had no clue. On the other hand, I could not obtain a passport because I had not completed the military service. I had no choice but to conscript.

    In or around mid-summer 2007, I started the three-month bootcamp training in an [army base], south Tehran.

    After the bootcamp training, I was transferred to another [army base], Tehran. I had to stay the nights in the base. It was around one month later, that I was raped by a senior officer. I was begging him to stop but he told me: “you are a poofter, why you are crying. You should enjoy.” This incident exacerbated my depression. I was so helpless that I harmed myself by dragging a blade several times on my head, both arms, chest and stomach. I was at the army base when I did this. I do not have medical evidence to provide because it was for 13 years ago. After the incident, I was taken to [a named] Hospital. I enclose photographs of the scars on my body.

    Subsequently, the army referred me to their medical commission to assess my fitness to serve. I was psychologically assessed by the medical commission consisting of several professionals, including pscychiatrists and doctors.

    [In] October 2008, I was issued with an exemption card. I was exempted under Paragraph 2 of Article 33 of the Copulsory Military Service Act. Under this paragraph, a person suffering from severe maniac or severe and longstanding depression is exempted from completing the compulsory service on a permanent basis. Obtaining an exemption is a very complicated and hard process which should be approved by a commission of doctors and psychiatrists. I enclose a copy of my exemption card and the relevant article.

    After I obtained the exemption card, I became determined to leave Iran permanently. I could relieve myself from the fear of being arrested and the shame of being identified as a gay.

    After I arrived in Australia, I had no longer that fear, but I still had and I still have the shame of being identified to the straight people as a gay.

    I acknowledge that I provided wrong information to the Department and I may not be trusted as a credible person to the Member. But the shame of being identified as a gay has been always very strong in me. Despite living around 10 years in Australia, I still feel ashamed to introduce myself as a gay. I still have nightmares every now and then about the rape incident during the service. Because of my poor English, I am restricted to the Iranian community. But at the same time, I do not have many Iranian friends because I do not want them to realise I am a gay.

    Since 2014, I have been a regular attendee at [Sauna 1] in [Suburb 1] and [Sauna 2] in [Suburb 2]. I also attended the [Sauna 3] in [Suburb 2]. The only method of payment at the [Sauna 2] is cash, so I do not have any evidence to provide. But I had many payments to [Sauna 1] using my bank cards and many other payments using cash. My lawyer assisted me to retrieve bank statements from [Bank 1] and [Bank 2] online. It is only possible to obtain them through my online account from May 2017 not earlier. I enclose 17 bank statements from the said banks for the period between May 2017 and March 2020. In total, I have made 54 payments to [Company 1] (aka [Sauna 1]). I have highlighted the said transactions in yellow.

    I have been suffering from gouty arthritis since 2010. The first time, I was diagnosed with the disease in Christmas Island. I have also been suffering from back pain since 2016, too. I have a slipped disk. Because of my medical conditions, I work in average 3-4 days a week. I can manage paying my living costs without being dependent on social security payments. I also support my parents in Iran. I have been living in Australia for 10 years. If I am returned to Iran, I will face severe difficulties to support myself financially. As a labourer in Iran I will be on a very minimum wage and this will be further deducted because I will not be able to work full-time. I do not have access to any medical evidence because I am in detention now. However, since I have been detained in [a named immigration detention centre] [in] June 2020, I have been transferred to [a named] Hospital 3 times because of I had severe pain in my back and left leg.

    I am ashamed of providing incorrect information to the Department and I am truly remorseful. I am truly thankful to the Australian people who have given me the opportunity to live a fearless life as a gay. If I am returned to Iran, I may face humiliation, misbehaviour or even harsher punishments because of being a gay both by the people and the authorities.

    My parents are struggling financially and I send them money on a monthly basis. If I am returned to Iran, they will not be in a position to support me financially.

    Other than the incorrect information that I provided to the Department, I have tried to be a law-abiding resident in Australia. I am still carrying the shame of being identified as a gay even in Australia but this coupled with the fear of being identified as a gay in Iran will not only make the life miserable for me but also will subject me to a systematic discrimination, misbehaviour and possibly harsher punishments.

    I request the Presiding Member to take into consideration my sexual orientation, medical conditions and the long time that I have spent in Australia.

22. The applicant did provide bank statements accompanying this statement, indicating multiple payments to [Company 1] since May 2017.

23. The Tribunal assesses the applicant’s new claims based on being homosexual. The Tribunal scrutinises these claims very, very carefully and with a degree of scepticism, given past and more recent untruths by the applicant. The applicant originally concocted the basis for his successful protection visa application. In response to the s.107 notice, the applicant has indicated that he faces harm in Iran because of a view of a need for regime change in Iran and association with ultra-right political elements. It is clear that this is not true from the applicant’s evidence in the hearing that he has not been politically engaged either in Australia or Iran. The Tribunal does not accept the applicant’s explanation in the hearing that his claims in response to the s.107 notice concerning a fear of harm on the basis of political views was actually meaning a view of a lack of tolerance in Iran towards gay individuals.

24. However, starting from a position of significant scepticism, the Tribunal has come to accept that the applicant is homosexual, and has been inherently homosexual since being a youth. The applicant was convincing in claims to this effect in the Tribunal hearing.  Significantly probative of the applicant’s claims to be homosexual is the fact that he has provided independent evidence, being bank statements, of multiple payments to what the Tribunal accepts is a gay sauna in [Suburb 1] as readily confirmed with internet searches. The Tribunal accepts, based on this evidence, that the applicant has attended gay saunas on multiple occasions. The Tribunal is satisfied on all of the evidence that the applicant is homosexual.

25. The Tribunal considers that the applicant has had, and maintains, a significant lack of acceptance and shame in relation to his sexuality. This results in the practice of the applicant’s sexuality being discreet and covert. This would be readily understandable in Iran given its attitudes towards homosexuality. It may be less understandable in Australia given the relative freedom to be homosexual in this country. However, the Tribunal accepts that the applicant’s negative attitudes towards his own sexuality are very deep seated and not readily overcome by his presence in a society with relative freedom of sexuality.

26. The Tribunal considers the applicant did not originally make a protection visa claim based on his sexuality because he was not familiar with the attitude towards homosexuality in Australia, combined with the applicant’s deep-seated lack of acceptance of his own sexuality. The Tribunal accepts that the applicant’s lack of acceptance in terms of his sexuality is the reason why his sexuality was not mentioned as an issue in response to the s.107 notice, despite the importance of this information being disclosed at that point.

27. Contrary to the applicant’s claims in the hearing, the Tribunal is not satisfied that the key reason why the applicant left Iran was his sexuality. If that were the case, the Tribunal considers the applicant would have researched and ascertained the relative degree of sexual freedom in Australia. The Tribunal also considers that if that were the case, the applicant would have lived a much more openly gay lifestyle in Australia. The Tribunal considers that the key reason why the applicant left Iran was to improve his quality of life.

28. The Tribunal notes the following from the DFAT Country Information Report – Iran, 14 April 2020, concerning sexuality:

    Sexual Orientation and Gender Identity

    The Penal Code criminalises all sexual relations outside of traditional marriage, including heterosexual relations. Chapter 2 of the Penal Code explicitly criminalises same-sex relations, including where consensual in nature. Punishments for male homosexual acts are more severe than those given to women. Whereas a man can be executed on the first conviction in cases involving penetration, a woman can only be sentenced to death on her fourth conviction. Article 234 of the Penal Code distinguishes between the ‘active’ and ‘passive’ parties in male-on-male sexual acts involving penetration (sodomy). Whereas it allows for the execution of the passive partner in all cases, the active partner may only be executed if he is married, if he rapes the passive partner or if he is a non-Muslim who has engaged in penetrative acts with a passive Muslim partner. Article 237 states that non-penetrative homosexual acts such as kissing or ‘touching as a result of lust’ are punishable by flogging, applicable to both men and women, while Articles 238 and 239 specifically define and prohibit sexual acts between women, stipulating flogging as punishment. Same-sex conduct not involving sexual organs – like ‘passionate kissing’ – also attracts flogging as punishment. There is no distinction between the active and passive parties or between Muslims and non-Muslims in cases involving sexual acts between women.

    Iran does not publish official statistics or details relating to executions. This makes it difficult to estimate how many individuals have been executed for same-sex acts, and whether those acts were consensual. Numerous media reports relate to the execution of men who have engaged in same-sex acts. DFAT is not aware of any such executions involving women. However, in many cases, the media has reported that these acts involved non-consensual sexual encounters, including against minors. The issue is further complicated as the Penal Code does not recognise rape as a separate crime: it treats heterosexual and homosexual rape as forms of adultery and sodomy, respectively. As a result, if a consensual homosexual relationship is discovered by law enforcement, the passive partner has a significant incentive to claim that he has been raped as this may be the only way to enable him to escape a death sentence. Moreover, in an actual male-on-male rape case, the victim faces substantial risk in filing a complaint, as if the alleged rapist succeeds in arguing that the act was consensual, the victim could be executed for being the passive partner to an act of sodomy.

    In August 2016, a 19-year old man was executed in Arak (Markazi Province) after being convicted of an act of ‘forced sodomy’ (as defined in Article 234). The alleged offence occurred while the man was still a juvenile. Authorities arrested the man after receiving a complaint accusing him and two other youths of forcing a teenage boy (of undisclosed age) to have sexual intercourse with them. The executed man had maintained that the sexual acts were consensual. In January 2019, a 31-year-old gay man was reportedly executed by hanging on charges of kidnapping and raping two 15-year old adolescents (apparently boys).

    According to local media reporting, the man had several prior criminal records. It is difficult to find evidence of recent cases involving the execution of adults who have indisputably engaged in consensual same-sex relations. International organisations report that authorities are aware of the negative international reactions large-scale persecution and severe punishment of homosexual individuals creates. Where courts find offenders guilty in same-sex relations cases, reporters observe that, in most cases, they generally refrain from imposing the death penalty and instead order floggings.

    The prevailing view among Iranian healthcare professionals is that homosexuality is a psycho-sexual illness. Official ‘treatment’ for gay men and women includes prescription medications (such as Valium) and gender reassignment surgery (GRS). International observers report that private and semi-governmental psychological and psychiatric clinics offer ‘corrective treatment’ for LGBTI persons. These clinics allegedly use electric shock therapy on the hands and genitals of LGBTI persons, prescription of psychoactive medication, hypnosis and coercive masturbation to pictures of the opposite sex. One such clinic, The Anonymous Sex Addicts Association of Iran, reportedly has branches in 18 provinces. In March 2016, the UN Committee on the Rights of the Child expressed concern at reports that children identifying as LGBTI had been subjected to electric shocks and the administration of hormones and psychoactive medications as forms of cure. Men whose homosexuality or transgenderism has been established (through an intrusive medical examination) are exempted from military service and given the designation ‘mentally ill’ on their military cards (see Military Objectors), which can lead to later difficulties when seeking employment.

    There is a strong societal taboo against homosexuality, particularly among older, more conservative Iranians — one local source said it was impossible for Iranians, as Muslims, to accept homosexuals. While official rhetoric against homosexual individuals and practices has reduced since the Ayatollah Khomeini era, high-level officials (including Ayatollah Khamenei) have continued to issue derogatory statements about homosexuality. The government censors all materials related to LGBTI issues, including blocking websites or content within sites that discusses such issues. NGOs are unable to work openly on LGBTI issues. The law does not prohibit discrimination based on sexual orientation and gender identity, and no criminal justice mechanisms exist to prosecute those accused of committing hate crimes against LGBTI persons. Authorities have reportedly expelled individuals from university for alleged same-sex relations. It is not possible for an LGBTI person to seek state protection, as doing so would be an act of self-incrimination and leave them vulnerable to arrest and prosecution. Given the criminalised and hidden nature of homosexuality, harassment of and discrimination against LGBTI persons is under-reported.

    Local sources told DFAT that younger Iranians, particularly in more progressive parts of major cities, are increasingly more tolerant, but that, on balance, homosexuality is not openly discussed and gay people face severe discrimination. This includes abuse and harassment from family members, work colleagues, religious figures, and school and community leaders. Ostracism from one’s family is common, particularly in the case of conservative families. DFAT heard anecdotally that gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children.

    International observers report that homosexual and bisexual persons who do not openly reveal their sexual orientation and keep a low profile are able to move freely within society, particularly in larger cities that offer greater anonymity. It is not uncommon in Iran for people of the same sex to live together, although this is not necessarily associated with homosexuality. The rise of social media means activities such as dating now largely take place online in chat rooms, dating sites and via social media platforms rather than in established ‘beats’ (areas frequented by gay men, where sexual acts may occur), although these continue to exist, particularly in major cities. Local sources told DFAT that there are two gay-friendly parks in Tehran — Daneshjoo Park and Honarmandan Park (in central Tehran). The parks are patrolled by the police (sometimes in plain clothes), although contacts were not aware of any recent arrests there. DFAT heard anecdotally that one can observe same-sex couples holding hands in these parks, although couples show greater discretion today given the known police presence. There are no gay bars in Iran. While intelligence services have the capacity to monitor the behaviour of individuals, human rights observers report that security agencies do not usually seek to identify or punish individuals solely for engaging in same-sex relations.[1]

    [1] DFAT Country Information Report – Iran, 14 April 2020, paras 3.147 – 3.153

1. The Tribunal considers that if the applicant returned to Iran he would continue to act, in terms of his sexuality, in a covert manner.

2. The Tribunal is satisfied that the covert nature with which the applicant would express his sexuality in Iran is tied up with his fear of social sanctions and attitudes towards homosexuality.

3. The Tribunal considers that if the applicant was able to practice his homosexuality freely in Iran, as the Tribunal considers that he would do if it were not for the negative societal treatment of homosexuals, the applicant would face a real risk of serious or significant harm on return to Iran based on severe discrimination towards homosexuals in Iran as clear from independent information. 

4. The Tribunal would also consider, even on the basis of the applicant seeking to be covert in the acting out of his sexuality in Iran, there is a chance that is more than remote the applicant may be discovered and subject to not insignificant societal disapproval and sanction.

5. The Tribunal considers that the societal and official attitudes towards homosexuality in Iran is such that the applicant, whose homosexuality is an inherent characteristic, would face a real risk of serious and significant harm either if his sexual activity was detected, which is more than a remote possibility, or on the basis of the applicant freely expressing his sexuality, which the Tribunal accepts that he would do if it were not for his fear. In other words, if the applicant had made an application for a protection visa based on his sexuality, the Tribunal considers that he would have met the protection criteria.

6. The Tribunal on this basis considers that Australia has international non-refoulment obligations towards the applicant due to his sexuality. This is a very significant discretionary factor heavily weighing against exercising the discretion to cancel the visa.

7. The other key relevant discretionary factor is the circumstances in which the non-compliance occurred. The Tribunal accepts that the applicant felt compelled to make false claims for protection on the basis of not realising that he had genuine claims which could readily have given rise to protection obligations, and having an internal reluctance to reveal such claims, based on lack of acceptance of his sexuality.

8. The Tribunal has considered all other discretionary factors including the relevant submissions on behalf of the applicant.

9. Assessing all relevant discretionary factors, particularly the existence of non-refoulment obligations towards the applicant the Tribunal determines not to exercise its discretion to cancel the visa

10. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    David McCulloch
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)    purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)    giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)    stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)    requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.