1921463 (Refugee)

[2021] AATA 3821

1921463 (Refugee) [2021] AATA 3821 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1921463

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:27 July 2021

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.

The Tribunal has no jurisdiction with respect to other applicants.

Statement made on 27 July 2021 at 10:36am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – nationality – stateless – race – Faili Kurd – political opinion – Democratic Kurdish Party of Iran – Iranian citizenship – torture – education – employment – wife’s return visit to Iran – best interests of the children – Kurds asserting cultural or political rights – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 36, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41; Schedule 2

CASES

Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

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

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant entered Australia in November 2011 and was granted the Class XA Protection visa on 8 May 2012. On 16 February 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he may not have complied with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 2 August 2019. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicant appeared before the Tribunal on 24 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and two other witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish 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.

   Relevant law

5. 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.

6. 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.

   Did the notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. 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.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant arrived in Australia as an irregular maritime arrival in November 2011 and claimed to be a stateless Faili Kurd. The applicant made a request for protection obligations determination and provided a statement dated 4 December 2011. The applicant was allowed to make an application for a protection visa, which he did on 2 May 2012. The applicant completed in support of that application Form 866 in which he made the following claims:

    a.The applicant gave his personal details and stated at Question 13 that he was Kurdish.

    b.At Question 20 the applicant stated that he was stateless in Iran and in response to Question 21 asking about his citizenship the applicant stated ‘n/a’.

    c.At Question 24 the applicant indicated that he was born stateless.

    d.At Question 31 the applicant was asked whether he had, or used any other travel document. The applicant stated ‘no’ and he referred to a false passport which was taken by the smugglers.

    e.In response to Questions 41 – 46 the applicant referred to the statement he submitted in support of the protection obligations determination. In that statement the applicant claimed, essentially, that he was a stateless Faili Kurd born in Iran. The applicant claimed that his parents were born in Iraq and were expelled. The applicant stated that he could not go to the Iranian school and only received informal education. The applicant refers to lack of jobs and money. The applicant refers to his interest in politics and his involvement with the democratic Kurdish Party of Iran (DKPI) and his activities in support of the Kurdish cause. The applicant referred to his imprisonment in 2006 for two years where he claimed he was tortured. The applicant described his decision to leave the country. He stated that if he were to return to Iran, he may be executed by the authorities because of his political involvement.

11. In October 2012 the applicant made a request to change his date of birth and submitted his Iranian Marriage record issued in April 2010 relating to his marriage to [his named wife]. In June 2013 the applicant’s spouse [named] and daughter [named] arrived in Australia (having left Australia on [a day in] June 2013). [The applicant’s wife] was interviewed and stated that she had spent the three months in Iran to visit her sick mother. [She] held in her possession the Australian travel document and an Iranian passport which was issued in February 2013 in Canberra. [She] also had in her possession an Iranian passport for [name] (who appears to be the applicant’s daughter born in [year]) also issued in Canberra in [2013].

12. The delegate refers to Article 976 of the Iranian law which states that a child born to an Iranian father acquires citizenship at birth, so that the daughter’s Iranian citizenship would have been acquired through the applicant’s own citizenship and the applicant would have been an Iranian citizen from birth.

13. In his response to the NOICC the applicant states that while in Indonesia, they heard rumours about protection applications being refused and they decided to claim they were Faili Kurds and his wife destroyed his documents. The applicant stated that he and his wife are Faili Kurds but had citizenship of Iran. The applicant expressed regret but stated that he was not in the right mental state when he made the decision. The applicant claims that information about his political involvement, evidence about his solitary confinement, the reporting obligations, etc were all correct. The applicant refers to his ongoing involvement with the party after his arrival in Australia. In his submission to the Tribunal of 17 May 2021 the applicant repeated the same claims. He refers to the arguments with his wife and advice received from others in relation to the claims for protection that needed to be made. The applicant concedes that he provided incorrect information in relation to being a stateless Faili Kurd but states that the other information was genuine, including evidence of his affiliation with the Democratic Party of Iranian Kurdistan, his arrests and mistreatment. In oral evidence to the Tribunal the applicant also confirmed that he was not stateless and had the Iranian citizenship but states that all other information was true.

14. The applicant’s evidence indicates that he was a citizen of Iran. The Tribunal finds that the applicant gave incorrect answers on the form in response to Questions 20, 21 and 24 of the application form when he stated that he was stateless. The Tribunal finds that the applicant completed his application form in a way that incorrect answers were given. The Tribunal finds that there was non-compliance with s. 101 of the Act in a way described in the Notice.

    Should the visa be cancelled?

15. 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).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

17. The correct information is that the applicant was a national of Iran and was not stateless.

    The content of the genuine document (if any)

18. This is not relevant in the present case.

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

19. An assessment of whether protection obligations are owed by Australia is based on the applicant’s country of nationality. A country of nationality is central to any such determination. Further, the applicant’s claims were made expressly on the basis that he was a stateless Faili Kurd. The applicant claimed that because of his stateless status, he had limited opportunities, such as in relation to education and employment. The applicant’s status as a stateless person in Iran formed a very significant part of his claims.

20. The applicant also stated that he was fearful of being executed by the Iranian authorities if he were to return to Iran. However, the applicant claims to have left the country with his wife and she held an Iranian passport which shows that she departed Iran lawfully in October 2011, which would suggest that the applicant did not leave the country illegally as he claimed in response to Question 52 on his application. In his response to the NOICC the applicant concedes that he left Iran with his wife in 2011 and in his submission to the Tribunal the applicant referred to various country reports and other evidence, claiming that  not every person who is of interests to the Iranian authorities is stopped upon leaving Iran.

21. The Tribunal finds that significant aspects of the applicant’s claims, made in the application form and the statement that accompanied the application, were incorrect. The Tribunal finds that the decision to grant the visa was based, in part but to a very significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

22. The applicant explains in his response to the NOICC and oral evidence that he was involved in the Kurdish politics in Iran and was imprisoned and faced harassment from the Basij. The applicant told the Tribunal that the Basij visited his home twice and he was able to escape on the second occasion, otherwise he would have been harmed. Because of these events, he persuaded his wife to leave Iran.

23. The applicant states that when they were in Indonesia, they heard from others that he would have a better chance of obtaining the protection visa by claiming to be a stateless Faili Kurd. His wife, who was pregnant, was persuaded by these arguments and threatened self-harm if he did not make particular claims and she had destroyed his documents. He could not persuade his wife, so he decided to make a claim of being stateless. The applicant claims that he had many arguments with his wife and that he was not in the right frame of mind when making these decisions but the Tribunal does not accept that evidence. The applicant’s evidence indicates that he was capable of assessing his situation, making a rational decision that certain claims would give him better prospects of success and taking steps to support his decision to pursue such claims. The applicant’s actions suggest that he made a rational decision and took rational steps to implement it. The Tribunal does not accept that the applicant was not in the right frame of mind but, rather, finds that the non-compliance was deliberate and intentional and done with the purpose of ensuring a positive migration outcome.

24. The Tribunal is also mindful that the applicant claims he was imprisoned and persecuted by the Basij and if these claims are true, the applicant could have been granted the protection visa on the basis of those claims alone and there was no need for him to claim to be stateless. As noted above, while the applicant claims he was pressured by his wife to provide the false information, the Tribunal does not consider this to be a reasonable basis for giving incorrect answers in the application about significant aspects of the claims. The applicant told the Tribunal that the only false information he provided was in relation to his nationality, not with respect to any other claims but the Tribunal has found that information about his nationality was central to the decision to grant the visa to the applicant.

25. In the Tribunal’s view, these matters weigh very heavily in favour of the cancellation.

    The present circumstances of the visa holder

26. In response to the NOICC the applicant provided evidence of having completed a course in Australia and setting up his own [service] business. In oral evidence the applicant told the Tribunal he has been living in Australia for ten years and considers Australia his home. The applicant states that he completed a [qualification] and has been running his own business. He does not employ any staff. The applicant states that his elder child attends school and he has [another child]. He is a regular blood donor. The applicant states that his eldest daughter will be eligible for the Australian citizenship at the end of 2021.

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

27. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

29. The application for the protection visa was made in May 2012 and nine years have passed since the non-compliance. The Tribunal acknowledges it is a lengthy period and accepts that  the applicant and his family have settled in Australia since that time.

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

30. There are no known breaches of the law and the applicant claims he has always complied with the Australian laws.

    Any contribution made by the holder to the community.

31. The applicant submits that he has been acting as a carer for an Australian citizen with disabilities since 2016. The applicant provided evidence of his involvement in the Kurdish community activities and states that he donates his time and contributes to the community activities and he also done free [service] work for others . He is a blood donor with the Red Cross. The Tribunal accepts the applicant has made a contribution to the community.

32. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140.

33. The visa held by the applicant’s spouse has been cancelled as a result of the applicant’s visa being cancelled. Both children were born at the time when the parents were not holders of permanent visas and the eldest child’s visa has also been cancelled. The second child has no visa as she was born after the applicant’s visa had been cancelled. The applicant states that his eldest child would be entitled to the Australian citizenship upon turning [age] in December 2021.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

34. The applicant has two children, born in [specified years] respectively. The eldest child is an Iranian citizen but the second child has not made the claim for the Iranian citizenship. The applicant told the Tribunal that he is reluctant to approach the Iranian authorities to claim the Iranian citizenship for his second child given his political profile. The Tribunal does not accept that evidence, given that he has done so in relation to his eldest child (even if the applicant claims his wife initiated the process). The Tribunal is not satisfied the applicant has a genuine objection to his younger daughter acquiring the Iranian nationality and finds his claims opportunistic.

35. The applicant states that his children were born in Australia and have spent their entire lives in Australia, and would find it difficult to re-settle in Iran and her education would be disrupted. He claims that his elder daughter does not speak Persian or Kurdish and has limited understanding. The Tribunal accepts that the children were born in Australia and have spent their lives here but that does not mean, in the Tribunal’s view, they would be unable to resettle in Iran.

36. The Tribunal is of the view that it is in the best interests of young children to be in the care of their parents, however, the Tribunal does not consider this can only occur in Australia. The Tribunal is not persuaded by a claim that the best interests of any child could only be met if the child lives in Australia. It is not uncommon for children to leave their country of nationality, and country where they have spent formative years, to migrate with parents to a different country. Such decisions are made routinely by parents for a variety of reasons. The applicant has not satisfied the Tribunal that his children would face difficulties adapting to life in Iran. The children are young and, in the Tribunal’s view, would be capable of adapting to life in Iran, even if that will involve learning the language and adapting to new social and cultural norms. The applicant claims his daughter’s Persian and Kurdish are very limited and she has difficulties expressing herself in those languages but even if that is the case, there does not seem to be any reason why she would be unable to improve her language if she was to reside in Iran. The children would have the support of their parents.

1. The representative submits that the elder child will be eligible to acquire the Australian citizenship at the end of 2021. The Tribunal is mindful that at the time of this decision, she is not an Australian citizen and, at present, there is nothing more than an expectation that she will become a citizen in the future. The Tribunal gives it some weight (as the cancellation of the visa may mean that the child cannot acquire the Australian citizenship if she cannot remain in Australia) but in the Tribunal’s view, that is of limited benefit to the applicant because it is merely an expectation of a future benefit. More importantly, however, the Tribunal does not consider that the Australian citizenship necessarily establishes the child’s best interests that require her presence in Australia. As noted above, it is not uncommon for children to live outside of their country of nationality (in this case, the child is a citizen of Iran and does not live in Iran). Thus, even taking account of the child’s future entitlement to an Australian citizenship (assuming such an entitlement exists), the Tribunal does not consider that the child’s best interests require her presence in Australia.

2. Overall, the Tribunal has formed the view that the children’s best interests would be served by their residence with their parents, irrespective of their country of residence. The Tribunal does not consider that the best interests of the children would be adversely affected by the cancellation of the visa.

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

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

4. The applicant states that he has been a member of the party and since leaving Iran, he has continued to be involved in the activities of party and of the Kurdish community and he provided in his response to the NOICC a number of documents evidencing his membership in the party and of his involvement in a variety of activities. In his submission to the Tribunal of 17 May 2021 the applicant reiterates that information he gave in his protection visa application concerning his political activities was correct. The applicant refers to the evidence he presented of his political activities in response to the NOICC. The applicant refers to country information which indicates that despite being of interest to the Iranian authorities, political activists have been able to depart Iran. The Tribunal also received oral evidence from other party members, who spoke of the applicant’s involvement in the Party activities and as a committee member and the risks he would face upon return to Iran. In his submission of 25 May 2021 the applicant also presented some photographic evidence of his activities. The applicant states that evidence of these activities is available on social media and information is publicly available and would be known to the authorities in Iran.

5. Having regard to the applicant’s evidence, the evidence of the witnesses and the documentary evidence, the Tribunal accepts that the applicant had continued active involvement in the activities of the Kurdish Democratic Party and other activities of the Kurdish community. The Tribunal acknowledges that information about some of the applicant’s activities is available on social media and for that reason may be known to the authorities in Iran.

6. The Tribunal has had regard to the Common Claims report published by the Department of Home Affairs COISS in April 2021 which contains the following relevant information about Kurds in Iran:

   Kurds who seek to assert cultural or political rights might face adverse attention from Iranian authorities. Kurds are one of a number of ethnic minority groups in Iran that face discrimination in gaining access to university studies, employment, business licences and economic aid, getting permission to publish books and exercising their civil and political rights.[1] Generally, Iran does not target Kurds specifically because of their ethnicity or religion.[2] However, those who attempt to publicly assert cultural or political rights have an increased risk of coming to the attention of the state.[3] DFAT assesses that those who advocate for greater Kurdish rights and autonomy or self- determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[4] Kurds (along with other ethnic minorities) who speak out against violations to their rights face arbitrary detention, prolonged detention, disappearances, physical abuse, torture, unfair trials and imprisonment.[5]

   The authorities do not necessarily differentiate between members and supporters of Kurdish political parties; treatment is arbitrary and depends on the intelligence officer involved.[6]

   Kurds who undertake low-level activities such as participating in an assembly of protestors or in a general strike may be accused by the authorities of cooperating with banned opposition parties.[7] Kurdish activists are frequently incorrectly accused (and charged) with belonging to a political party.[8] Most Kurdish activists who are arrested are not actually party members, but instead supporters or people who have no affiliation with a party.[9] There has been a wave of arrests of Kurdish activists in western Iran since the start of the year.[10] Between January and February 2021, at least 96 Kurds were arrested including civil society activists, environmentalists, labour rights activists, university students and individuals with no known history of activism.[11] Most were arrested without warrants and remain imprisoned, without access to lawyers.[12] During 2020, over 500 Kurds were arrested for politically motivated reasons and charged with vague national security offences.[13] Many were given lengthy prison sentences, ranging from one month to 17 years and at least four were executed following unfair trials.[14] In 2019, Kurdish prisoners charged with national security offences represented almost half of the total number of political prisoners in Iran.[15] Dozens of Kurds were arrested following the November 2019 protests (see ‘November 2019 Protests’).[16] More than half of the casualties caused by the state’s crackdown on protestors were recorded in the Kurdish regions.[17] During 2018, 828 arrests of Iranian Kurds were registered.[18] In the months after the December 2017–January 2018 protests, authorities summoned numerous Kurdish activists and threatened them with national security charges.[19] Separately, in late March 2018, authorities charged over 40 people in the largely Kurdish province of Kermanshah with participating in the protests.[20] (Dissent has continued in the Kurdish regions, with a three week strike ending after security forces were dispatched. The strike was over the closure of the Iran–Iraq border.)[21] Of the 657 reported political prisoners in Iranian gaols (as of January 2018), 45 per cent were Kurdish.[22] Numerous Kurds were sentenced to lashes (plus a fine) for participating in or organising gatherings to support the independence referendum held in Iraqi Kurdistan in September 2017[23] (at least 100 were arrested[24]).  

   [1] 'Country Reports on Human Rights Practices for 2020 - Iran', United States Department of State, 30 March 2021, p.54, 20210331113214; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.27, 20200414083132; ‘Rights Denied: Violations against ethnic and religious minorities in Iran’, Ceasefire Centre for Civilian Rights (United Kingdom), Centre for Supporters of Human Rights (United Kingdom), Minority Rights Group International (United Kingdom), 13 March 2018, CIS7B83941441; ‘Iran – Failing on all Fronts’, Amnesty International, 30 June 2019, p. 9, 2019070410142014 

   [2] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.27, 20200414083132; ‘Iran: Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5, CIS7B83941872. That said, in June 2018, Iranian authorities banned Kurdish costumes and language being spoken publicly in a governorate in West Azerbaijan province. ‘Iran officials ban Kurdish clothes and language in public places’, Iran Human Rights Monitor (United States), 13 June 2018, CXBB8A1DA29303

   [3] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.27, 20200414083132; 'Country Reports on Human Rights Practices for 2020 - Iran', United States Department of State, 30 March 2021, p.54, 20210331113214; 'Amnesty International Report 2020/21: The State of the World's Human Rights', Amnesty International, 06 April 2021, pp.193-194, 2021040709334; 'Iranian Kurds: Consequences of political activities in Iran and KRI', Danish Immigration Service, 07 February 2020, p.19, 20200210101317; ‘Iran: Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5, CIS7B83941872; The Islamic Republic’s Constitution explicitly denies the equal rights to those members of religious minorities and political groups that seek to undermine the Islamic Revolution. ‘Rights Denied: Violations against ethnic and religious minorities in Iran’, Ceasefire Centre for Civilian Rights (United Kingdom), Centre for Supporters of Human Rights (United Kingdom), Minority Rights Group International (United Kingdom), 13 March 2018, p. 13, CIS7B83941441. Recent example: 'Kurdistan Teachers Association Member Held After Peaceful Protests', Iran Human Rights Monitor (United States), 19 February 2019, 20190219094735; ‘Police arrest more than a dozen amid general strike sweeping Kurdish provinces’, Iran Human Rights Monitor (United States), 13 September 2018, CXBB8A1DA35379; ‘Kurdish cultural activists arrested ahead of poetry reading’, Iran Human Rights Monitor (United States), 10 July 2018, CXBB8A1DA31396

   [4] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.27, 20200414083132; 'Country Reports on Human Rights Practices for 2020 - Iran', United States Department of State, 30 March 2021, p.53, 20210331113214 

   [5] ‘Country Reports on Human Rights Practices for 2020 - Iran', United States Department of State, 30 March 2021, p.53, 20210331113214 

   [6] Iranian Kurds: Consequences of political activities in Iran and KRI', Danish Immigration Service, 07 February 2020, p.20, 20200210101317

   [7] ibid

   [8] ibid

   [9] ibid

   [10] '36 Human Rights Groups Appeal for Release of Kurdish Detainees and Other Minorities in Iran', Center for Human Rights in Iran (United States), 04 February 2021, 20210215132509; 'IHR Warns of Crackdown on Kurdish and Baluch Citizens in Iran', Iran Human Rights, 26 January 2021, 20210127132810; '15 Kurdish Civil Activists Arrested in Different Cities in Iran', Iran Human Rights, 12 January 2021, 20210114111720 

   [11] '36 Human Rights Groups Appeal for Release of Kurdish Detainees and Other Minorities in Iran', Center for Human Rights in Iran (United States), 04 February 2021, 20210215132509 

   [12] ibid

   [13] ibid

   [14] ibid

   [15] ‘2019 Iran Human Rights Annual Report’, Iran Human Rights Monitor, p.16, 6 January 2020, 20200420081401; ‘Situation of human rights in the Islamic Republic of Iran Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN General Assembly, 18 July 2019, p.20, 20190819104518. Similar figures are not yet available for 2020. 

   [16] 'Human Rights in the Middle East and North Africa: Review of 2019', Amnesty International, 18 February 2020, p.25, 20200219090219; ‘Fearing arrest, wounded Kurdish protesters avoid clinics as Iranian security forces crackdown continues’, Kurdistan 24, 19 November 2019, 20200421135502 

   [17] ‘Iran Focusing on Minorities Following Protests, Experts Say’, Voice of America, 23 November 2019, 20191125153334 

   [18] ‘Situation of human rights in the Islamic Republic of Iran Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’, UN General Assembly, 18 July 2019, p.20, 20190819104518 

   [19] ‘Iran Falsely Accuses Human Rights Activists of Undermining National Security’, Iran News Update, 30 March 2018, CXBB8A1DA25442  

   [20] ‘43 People Charged in Iran’s Kermanshah Province For Protesting Against the State’, Center for Human Rights in Iran (United States), 30 March 2018, CXBB8A1DA25444  

   [21] Iranian authorities shut down internet over Baneh strikes: monitor’, Rudaw (Iraq), 6 May 2018, CXBB8A1DA26655 

   [22] ‘Rights Denied: Violations against ethnic and religious minorities in Iran’, Ceasefire Centre for Civilian Rights (United Kingdom), Centre for Supporters of Human Rights (United Kingdom), Minority Rights Group International (United Kingdom), 13 March 2018, p. 16, CIS7B83941441. This figure includes individuals charged with (and possibly guilty of) support or commission of violent (including separatist) activities. An updated number was not located.

   [23] ‘Kurdistan Iranian Kurds jailed, fined, lashed for backing independence referendum’, Rudaw (Iraq), 28 July 2018, CXBB8A1DA32625; ‘Kurd civil rights activists sentenced to flogging in Iran’, Iran Human Rights Monitor (United States), 27 December 2017, CXC90406619931 

   [24] ‘Rights Denied: Violations against ethnic and religious minorities in Iran’, Ceasefire Centre for Civilian Rights (United Kingdom), Centre for Supporters of Human Rights (United Kingdom), Minority Rights Group International (United Kingdom), 13 March 2018, p. 16, CIS7B83941441 

7. Significantly, the same paper also provides information about failed asylum seekers. It relevantly states:

   The treatment of failed asylum seekers returning to Iran is generally determined by their profile (acquired before leaving Iran or whilst abroad) and their actions on return. Iran will not normally accept the involuntary return of failed asylum seekers from Australia who arrived before March 2018.[25]

   The treatment of failed asylum seekers and returnees depends on their profile before leaving Iran and their actions upon return.[26] DFAT assesses that those with ‘an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.’[27] According to DFAT, the authorities ‘pay little attention to failed asylum seekers on their return to Iran.’[28] Those who did not face adverse official attention prior to departing Iran, are unlikely to attract attention from the authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination.[29] DFAT assesses that the authorities have ‘little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.’ [30] This includes social media comments against the government, converting to Christianity, engaging in LGBTI activities or protesting outside an Iranian diplomatic mission.[31] DFAT states ‘in such cases, the risk profile for the individual will be the same as for any other person in Iran within that category.’[32] Authorities do not routinely check the social media accounts of returnees.[33] Academics consulted by the IRBC in February 2021, similarly state that treatment upon return depends on the profile of the activist and their actions whilst abroad. One stated that ‘those who have been very active or are known cannot go back’, and noted that there is a ‘higher risk’ for individuals who are politically active and that ‘ordinary Iranians might be fine…it really depends on the case…in general, if someone is known, they will face risks.’[34] Another academic is quoted as stating that ‘people who attended protests then went abroad and were not politically active whilst abroad will not face consequences when they return unless there are open files and charges or sentences.’[35]  If there are open charges or sentences, ‘the person will be arrested.’[36] The same source notes that if a person who was politically active abroad stayed anonymous they could return, however, ‘there is no way’ for a person who was politically active under their real name to return.[37] Sources note that whether a person is imprisoned upon return depends on if the Iranian authorities judge their activities to be a ‘potential threat’ to the regime and how ‘harmful’ they are to the regime’s reputation.[38] A range of sources indicate that if an individual was critical of the Iranian government whilst abroad, the possible repercussions upon return would depend on the content and scope of those activities, and, especially, the level of activism upon return.[39] However, in 2014, the Danish Immigration Service cited an unnamed source from Elam Ministries (a Persian-language Christian missionary service) that noted those who spent extended periods out of Iran are more likely to be suspected of spying upon return.[40] Further, in February 2021 a representative of HRANA stated there have been multiple reports of dissidents being arrested upon their return and ‘even lured into return[ing] to Iran’ to then be arrested.[41]

   [25] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.70, 20200414083132; ‘DFAT Country Information Report—Iran’, Department of Foreign Affairs and Trade, 7 June 2018, Section 5.23, CIS7B839411226. There is evidence that Iran does accept involuntary returnees from other countries, however COISS has been unable to determine Iran’s policy, or whether these are the subject of bilateral agreements between Iran and the relevant countries. For examples, see ‘Woman Asylum Seeker Lashed 80 Times After Being Deported to Iran From Norway’, Iran Human Rights (Norway), 20 September 2017, CXC90406614387 

   [26] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.70, 20200414083132. Also see: 'IRN200133.E - Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status (2017-February 2020)', Immigration and Refugee Board of Canada, 09 March 2020, 20200402123733

   [27] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.70, 20200414083132

   [28] Ibid  

   [29] ibid

   [30] ibid

   [31] ibid

   [32] Ibid  

   [33] ibid

   [34] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836

   [35] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836

   [36] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836

   [37] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836

   [38] 'IRN200133.E - Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status (2017-February 2020)', Immigration and Refugee Board of Canada, 09 March 2020, 20200402123733

   [39] 789 ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.70, 20200414083132; 'IRN200133.E - Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status (2017-February 2020)', Immigration and Refugee Board of Canada, 09 March 2020, 20200402123733; ‘Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, Danish Immigration Service and Danish Refugee Council, February 2018, p. 6, CIS7B83941872; ‘Iran: House Churches and Converts’, Danish Immigration Service and Danish Refugee Council, February 2018, p. 8, CIS7B83941873; ‘Iran: Christians and Christian converts’, UK Home Office, March 2018, pp. 5, 29–32, OG9EF767914

   [40] ‘Update on the Situation for Christian Converts in Iran’, Danish Immigration Service, June 2014, p. 15, CIS28931

   [41] 'IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', Immigration and Refugee Board of Canada, 22 February 2021, 20210315091836

1. The Tribunal accepts, having regard to that information, that the applicant may face harassment and discrimination as a Kurd. Significantly, the above cited information indicates that if the applicant has acquired a profile as a political activist during his residence in Australia, there may be a risk of him being targeted and harmed. Having regard to the evidence of the applicant’s activities since his arrival in Australia, the Tribunal accepts that the applicant may be perceived as being an activist and a dissident and that as a result of his activities, he may have an adverse profile with the Iranian authorities.

2. The Tribunal acknowledges, however, that the cancellation of the visa does not equate to the applicant’s removal from Australia and there would be an ITOA assessment carried out in relation to Australia’s protection obligations and the applicant’s circumstances.

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

3. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and would be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia and offshore without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and will have very limited opportunities to make visa applications onshore. The cancellation of a permanent visa would result in the applicant losing certain benefits that he had acquired and may have been entitled to as a permanent resident of Australia. The cancellation of the applicant’s visa would also result in the cancellation of the visa held by the applicant’s spouse and children.

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

4. The applicant and his wife refer to mental health issues and his concerns for the future, stating they have not been able to lead normal lives. The applicant states that if he is returned to Iran, he would be executed and his children would be orphaned. If the applicant is required to leave Australia as a result of his visa being cancelled (and the Tribunal does not consider that would necessarily be the case, given the ITOA assessment) the Tribunal accepts that  considerable hardship would be caused to the applicant and his family by the cancellation, given the length of time the family has resided in Australia and, significantly, the harm the applicant may experience upon his return to Iran.

5. The applicant and his partner have expressed regret about the provision of incorrect information but the Tribunal is mindful that the applicant has only done so when faced with the cancellation of the visa. There is no evidence that prior to the NOICC being issued, the applicant had notified the Department of the incorrect answers and his evidence to the Tribunal is that he followed the advice of others not to disclose that information. The evidence of the applicant’s spouse to the Tribunal is that she did disclose the Iranian citizenship in the citizenship applications but these were also made after the NOICC was issued when the correct information was already before the Department. The Tribunal thus considers the applicant’s expression of remorse to be opportunistic.

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

7. The Tribunal accepts that considerable hardship would be caused by the cancellation of the visa, if that would lead to the family’s departure from Australia, given the length of time the family has lived in Australia and the loss of opportunity for the eldest child to acquire the Australian citizenship. Although the Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation, the Tribunal acknowledges that the children had lived their whole lives in Australia and that the family’s preference is to remain in Australia. The Tribunal also accepts that the applicant has made a contribution to the community and acknowledges that considerable time has passed since the non-compliance. There are factors that do not favour the cancellation.

8. The Tribunal places significant weight on the fact that  the decision to grant the visa was based on incorrect information. The applicant’s nationality was central to any assessment of protection obligations and the applicant made specific claims arising out of his stateless status. These claims were not true. In the Tribunal’s view, these factors weigh very heavily in favour of the cancellation.

9. However, the applicant repeatedly told the Tribunal that the claims relating to his political activities and his involvement in the political party were true. Although the Tribunal is of the view that the applicant is not a person of credibility, having provided false information about being a stateless person, the Tribunal is mindful that the claims of his political activities have not been questioned as part of the cancellation process and did not form the basis of the NOICC. That is, the substantial basis for the decision to grant him the protection visa has not been undermined. Should there be further information before the delegate, it can form a basis of another NOICC. The Tribunal also places significant weight on the applicant’s political involvement since his arrival in Australia and the available country information which indicates that such activities may result in the applicant facing harm upon return to Iran. These factors suggest that the visa should not be cancelled. The Tribunal is also mindful that the cancellation of the applicant’s visa would lead to the cancellation of visas held by his partner and child. 

10. Overall, while the Tribunal has formed the view that there are strong reasons for cancelling the visa, the Tribunal decided to place greater weight on the fact that much of the evidence which formed the basis of the visa grant (such as the applicant’s political activities in Iran) has not been questioned and on the applicant’s activities in Australia which may give rise to sur place claims. Having regard to these factors, the Tribunal has decided, on balance, that the visa should not be cancelled.

11. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

13. The Tribunal has no jurisdiction with respect to other applicants.

    Kira Raif

    Senior Member