1923588 (Refugee)

1923588 (Refugee) [2021] AATA 1864 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: [The applicant]
(AKA [Alias 1][1])
[1] The applicant changed his name and has provided evidence.

CASE NUMBER:  1923588
COUNTRY OF REFERENCE:                   Iran
MEMBER:Antoinette Younes
DATE:7 April 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.

Statement made on 7 April 2021 at 4:07 pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – citizenship and nationality – claimed statelessness – Iranian citizenship – consideration of discretion – visa grant based on incorrect information – established strong ties in Australia – Australia's non-refoulement obligations – Faili Kurd – religion – Christian convert – purpose of engaging in Christian-related activities – familial relationship with founder of the Shi’a Ibrahimi faith – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
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

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).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 February 2021 and 29 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Section 438(1)(a) Certificate
During the first hearing, the Tribunal discussed with the applicant the existence of a Certificate under s.438(1)(a) relating to documents in file [number] on the basis that the disclosure of this information would be contrary to the public interest because the relevant documents contain information that disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and therefore may form the basis of a public interest immunity claim by the Commonwealth in a judicial proceeding.
The Tribunal advised the applicant that the information essentially relates to material noted in the delegate’s decision record.
The applicant did not make any submissions when the Tribunal advised of its assessment that the Certificate is valid.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).
Section 101 provides:
Visa 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.
The applicant’s protection claims
In the course of the first hearing the Tribunal referred to relevant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal, namely that.
a.The applicant arrived at Christmas Island as an irregular maritime arrival (IMA) [in] October 2010. In relation to the Refugee Status Assessment (RSA), he provided a statement dated 31 December 2010, claiming to be [Alias 1], born on [Date 1], a Faili Kurd from Iran. He provided a summary of his claims. In essence, he claimed that:
·His parents and siblings are Faili Kurds. His father was born in Iraq but he does not have Iraqi citizenship and he was not registered with the Iraqi authorities. His father entered Iran secretly and as a consequence, he is not recognised as a citizen by the Iranian authorities. To the best of his knowledge, his parents do not have Iraqi identity documents and they do not have the right to reside in Iraq.
·[Mr A] is his paternal uncle and in 1989, [Mr A] started the Shi’a Ibrahimi faith (Ibrahimi Faith), which is a branch of Islam that believes that all religions are united, praying for one God. He and other family members follow that faith and there are adherents of the faith in countries such as Sweden, Iran, Iraq, and the United Kingdom.
·In 1989, his uncle wrote letters to Islamic leaders in Iran including the Ayatollah Khomeini and expressed views about matters including the Islamic Council’s interpretation of Islam and the efficient running of government. Ayatollah Khomeini received those ideas well but following his death, an order was made calling for his uncle’s arrest and prosecution for anti-Islam and pro-Christian offences.
·His uncle was in prison for a long time, but he does not recall when. His uncle was set free in the face of considerable pressure from [Country 1] but the Iranian Government described him as an “insane person”.
·He fears returning to both Iran and Iraq. He left Iran because in 2008, he was taken by the Basiji and he was ill-treated. The Baisji demanded that he writes a letter denouncing the Ibrahimi faith and to convert to the Shi’a sect. He was told to take the letter to the Intelligence Agency of Iran (ITALAT). He went into hiding on his release. He has been informed by his family that the Basiji went to their house looking for him. Between 2008 and 2010, his cousin [Mr B] was ill-treated by the Basiji and never regained consciousness. [Mr B]’s brother was stabbed by the Basiji. Another brother, [Mr C] was detained for two years on false accusations.
·If he were to return, he fears serious harm based on being a Faili Kurd, belonging to the Ibrahimi faith, being perceived as having anti-regime opinions based on seeking protection. He would face discrimination and be seriously harmed by the Iranian authorities. Faili Kurds are ill-treated in Iran.
b.On 5 October 2011, the delegate found that the applicant met the definition of a refugee.
c.On 5 October 2011, the applicant lodged an application for a Protection Visa Subclass 866 and in that application, he completed a part C of form 866, Application for an applicant who wishes to submit their own claims for protection.
d.At question 19 of part C of the form 866 asking, asking Your citizenship at birth, the applicant responded Stateless. At question 20 of part C of the form 866 asking, Your current citizenship (if different to at birth), the applicant did not provide a response.
e.At question 41 of part C of the form 866 asking, I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)? the applicant answered Iran.
f.At question 42 of part C of the form 866 indicating, Why did you leave that country? the applicant responded, Please refer to my attached Statutory Declaration, which is the same as the Statement dated 31 December 2010, provided in support of the RSA.
g.In response to questions 43-46 asking about the harm he fears, the applicant referred to his Statutory Declaration indicating that he feared harm at the hands of the Iranian authorities based amongst other things, on him being a stateless Faili Kurd.
Based on the information provided, the applicant was granted a protection visa on 14 December 2011.
Subsequent events
The delegate’s decision record provides a summary of the following events that raised doubts about the applicant’s claims.
·On arrival in Australia [in] October 2010, the applicant informed the Department of his family composition. He listed three other persons as relatives who also came to Australia as IMAs. [Mr D] (DOB [date]) as a brother, [Mr E] (DOB [date]) as a paternal cousin and [Mr F] (DOB [date]) as a paternal nephew[2]. All three of those individuals claim to hold Iranian identity documents as Iranian citizens.
·[Mr D] is the applicant’s brother; both declared the same parents and the same siblings. They both provided the same contact number for their family at the same address for the same person that they both acknowledge their widowed mother. [Mr D] stated that his brother, [Alias 1], lived in Melbourne and was born in [year]. He advised the Department that he possesses an Iranian National ID card and an Iranian birth certificate from the civil registration office in Ilam. He provided his 10-digit Civil Identity number in his entry interview after arriving in Australia. [Mr D] stated that his Iranian birth certificate was issued in [year], indicating that his Iranian citizenship was granted to him at his birth, and not as a result of an application for Iranian nationality that he may have acquired upon reaching adulthood. Due to applicable Iranian citizenship law, this suggests that [Mr D]'s father, [Mr G], was an Iranian citizen at the time of [Mr D]'s birth. This suggests that the applicant is also an Iranian citizen by the fact that his father was either born with Iranian citizenship or had acquired it at some point prior to [year].
·[Mr E] declared that he has a cousin [Alias 1] in Melbourne. It appears that he is the applicant’s paternal cousin because his uncle, [Mr F], acknowledges him as a paternal nephew. [Mr F] lists both [Mr E]'s father [Mr A] and the applicant’s father [Mr G] as his full blood siblings. During the applicant’s entry interview, the applicant mentioned speaking to his uncle [who] had previously arrived on Christmas Island. At his entry interview, on his arrival into Australia in 2010, [Mr F] stated that he spoke to his nephew [Alias 1] on Christmas Island.
·[Mr E] never claimed that he was stateless. He declared that he is an Iranian national who has an Iranian National ID card, an Iranian birth certificate and a military service card. [Mr E] stated that his Iranian birth certificate was issued in [year], indicating that his Iranian citizenship was obtained by birth. This suggests that [Mr E]'s father, the brother of the applicant’s father [Mr G], was either born an Iranian national, or had acquired Iranian citizenship prior to [year].
·[Mr F] is a self-declared and fully documented Iranian national. His Laissez Passer travel document issued to him in 2010 by the Iranian Government states that his birth certificate number is [number], and that he was born in Tehran on [date] to his father [Mr C]. He lists his father [Mr C]'s citizenship as Iranian and describes his occupation as an [Occupation 1] for [a] company. This suggests that the applicant’s father [Mr G] was an Iranian national, most probably by birth. This suggests that the applicant is also an Iranian national.
·[Mr F] has been provided with a Ministry of Foreign Affairs number in the past. This number is issued on the basis of having had relatives present his Iranian National identification documents to the Ministry of Foreign Affairs in Iran. This then allowed for the grant of his Laissez Passer to Iran based on his possession of Iranian citizenship. The travel document and his application form to the Iranian government are on a Departmental file and constitute documentary evidence of his citizenship.
·The applicant stated that his father was born in Baghdad, Iraq and that although his mother is an Iranian citizen, his father and all his siblings are stateless. Iranian nationality law determines the person's citizenship through paternal descent. As the visa applicant’s brother was born a documented Iranian citizen, as of at least [year], their common father was either born an Iranian citizen, or had obtained Iranian citizenship prior to [year]. This suggests that the applicant is an Iranian national.
·As the applicant’s paternal uncle is an Iranian-born Iranian citizen, this suggests that the applicant’s family was unlikely to have been expelled from Iraq. The applicant’s paternal uncle declared that the applicant’s grandfather was an Iranian citizen, suggesting that the applicant must also be an Iranian national. As the applicant’s paternal cousin is a documented Iranian citizen and is the son of an Iranian citizen, this suggests that the applicant’s father is likely to be an Iranian national.
[2] In the course of the hearing, the applicant stated that [Mr F] is a paternal cousin not nephew.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE
On 27 March 2019, the Department sent to the applicant a NOITCC to which he responded on 29 April 2019 and 8 July 2019.
In his responses, the applicant’s earlier claims were reiterated. The applicant indicated that:
·He answered all questions to the best of his ability and knowledge. He came to Australia on a “perilous and dangerous boat journey” from [Country 2]. He was born in Iran but the family did not register his birth and as a consequence, he does not have a birth certificate.
·Around the time of his birth, his uncle “declared himself the prophet of Shi’a Ibrahimi religion”. There is no record of his birth or any documentation to prove his identity. When he responded to the questions about his citizenship, he honestly said no as he had no documents to prove his identity. He could not speak or understand English and the interpreter had difficulties in understanding his accent. He did not intend to mislead. He considers himself to be stateless. At interviews, he advised that his family had Iranian passports and are Iranian citizens but he is not.
·He fears returning to Iran because he belongs to the first family of the Shi’a Ibrahimi faith. He has been tortured, abused, and threatened. If returned, he would be ill-treated, including being arrested at the airport. His life would be in danger. He will have to join the army but he does not wish to kill people. He bought a fake passport from Iran through bribery.
·He considers Australia home. He has a Brazilian girlfriend and is considering starting a family together.
·He is now “inclined” towards Christianity and he attends Church. He is in touch with [Pastor H]. He would face harm based on his Christianity.
The applicant provided to the Department a copy of the applicant’s Iranian ID and untranslated, “found very recently by his mother…his original ID was destroyed in fire”[3].
[3] Email of 8 July 2019 from the applicant’s former representative to the Department. This document was translated by the Department confirming that it is the applicant’s Iranian birth certificate.
The applicant provided to the Tribunal Statutory Declarations from [Mr I] dated 23 February 2021 and [Mr E] dated 21 February 2021. [Mr E] referred to the applicant’s provision of false information claimed to be due to the influence of other asylum seekers, his father’s, [Mr A] religious activities and his consequential ill-treatment and that of family members. [Mr I] referred to [Mr A]’s religious activities and the applicant’s arrest and torture.
In the hearing on 24 February 2021, the Tribunal indicated to the applicant that the information discussed above suggests that the applicant is not a stateless Faili Kurd. The applicant conceded that he provided incorrect information about his citizenship and nationality, confirming that he is not a stateless Faili Kurd. He confirmed that he is an Iranian national of Faili Kurd ethnicity.
On the evidence, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice. For those reasons, the Tribunal finds that the applicant provided incorrect information in response to questions 19, 42, 43, 44, 45 and 46 by claiming, amongst other things, that he is a stateless Faili Kurd who by virtue of the statelessness could not access services and was ill-treated as well as members of his family.
Should the visa be cancelled?
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).
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
The correct information is that contrary to the applicant’s claims, the applicant is not stateless and he is an Iranian citizen.
In submissions dated 3 March 2021, the representative noted that the applicant “unfortunately took the suggestion of the people smuggler and other asylum seekers in detention and told the Department upon his arrival to Australia that he is a stateless person”. The applicant was afraid of the consequences of providing the false information to the Department which could result in the cancellation of his visa and deportation to Iran. The representative indicated that the applicant’s brother, uncle and cousin came to Australia a few years after the applicant who advised them to provide correct information about their citizenship. After the response to the NOITCC, the applicant decided to correct his mistake by providing his Iranian birth certificate to his former representative whom he asked to provide correct information about his citizenship. The Iranian birth certificate shows correct information about the applicant’s identity and citizenship as Iranian. The applicant accepts his mistake and is remorseful. He has provided his genuine Iranian identity documents confirming his citizenship. The applicant understands that he has obtained his visa on the basis of the provision of false information to the Department and he regrets his decision in this regard.

In the submissions, the representative noted that it is unfortunate that the applicant did not grow up in an environment where he would be able to trust the authorities and he did not know the importance of telling the truth to the Australian authorities on arrival in Australia. It is not unusual for an applicant to embellish aspects of evidence in support of their claims. As Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia, “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.”[4] the applicant confirms that other than his citizenship, all other information relating to his protection claims is correct.
[4] Abebe v Commonwealth of Australia (1999) 197 CLR 510.
The Tribunal observes that up until the Tribunal’s first hearing, he continued to assert his statelessness.
Although the Tribunal gives some weight to the fact that the applicant had accepted that he provided incorrect information about his citizenship, for many years, he did not seek to correct the record, not even when responding to the NOITCC. In the response to the NOITCC, it was noted that the applicant considered himself to be stateless.
The Tribunal considers the provision of incorrect information to be serious and gives this consideration weight in favour of cancellation.
· the content of the genuine document (if any)
Although this was after lodging the visa application, on 8 July 2019 the applicant provided to the Department an Iranian birth certificate showing that he is an Iranian national.
The Tribunal gives this consideration weight in favour of the applicant.
· 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
In submissions dated 3 March 2021, the representative noted that the applicant was granted the protection visa on 14 December 2011 and that the applicant accepts that he provided false information on his arrival to Australia in falsely claiming that he was a stateless person, which “probably had an impact on the decision to grant a protection visa to him”.
The representative noted that when the applicant was interviewed in relation to his protection claims, he was asked many questions about the claim of being a stateless Faili Kurd and he was told that he would be interviewed on another day to discuss other factors in relation to his protection claims. The representative expressed his belief that the fact that the applicant provided false information relating to being a stateless person, the other reasons for him escaping Iran are true and genuine. The applicant has not travelled to Iran since his arrival in Australia because those reasons still exist and he fears being persecuted on his return.
The claim of being stateless is a significant claim. On the evidence, the Tribunal is satisfied that the decision to grant the protection visa was based, wholly or partly, on the incorrect information.
The Tribunal gives this consideration weight in favour of cancellation.
· the circumstances in which the non-compliance occurred
The circumstances of non-compliance occurred when the applicant claimed to be a stateless Faili Kurd. He has now conceded that he is not stateless.
The applicant explained that he did not intend to provide the incorrect information, but he was influenced by the people smuggler and that he genuinely believed he is stateless. The Tribunal is not persuaded by those explanations.
The Tribunal gives this consideration weight in favour of cancellations.
·the present circumstances of the visa holder
The applicant is single. He does not have a partner or children. He does have family members living in Australia.
The applicant has lived in Australia for over ten years – since his arrival in October 2010. In submissions to the Tribunal, it was noted that the applicant has established ties in Australia. The Tribunal received supporting letters.
The Tribunal accepts that the applicant has established reasonably strong ties over the 10-year period.
The Tribunal gives this consideration weight in favour of the applicant.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In the submissions to the Tribunal, it was noted that the applicant accepts that he provided false information and that the behaviour was “wrong”. The applicant now intends to provide true and correct information.
In the course of the first hearing, the applicant told the Tribunal that he provided incorrect information about being stateless. He expressed remorse and acknowledged his wrongdoing.
In submissions dated 3 March 2021, the representative provided a summary of the applicant’s background and indicated that the applicant accepts that he did not comply with s.101(b) and that as a consequence the ground for cancellation arises. The applicant now fully understands the importance of the provision of correct information to Australian authorities and he apologises for the provision of incorrect information. However, the applicant would like another opportunity to demonstrate his appreciation of, and gratefulness to Australia.
In those submissions, the representative noted that the applicant was influenced by the people smuggler and other asylum seekers in the detention centre and given that he did not have any information about Australia’s immigration laws, he provided false information about his citizenship on arrival to Australia. The applicant feared being deported and he is remorseful for his conduct. His admission in the course of the hearing to tell the truth to the Tribunal should be given favourable weight.
The Tribunal is concerned that the applicant for over 8 years did not seek to correct the record. However, the Tribunal is of the view that his concession warrants weight in his favour.
·any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance. The Tribunal considers compliance to be a basic and legitimate expectation which does not warrant favourable consideration.
The Tribunal gives this aspect neutral weight.
·the time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged his application for a protection visa in 2011. The Tribunal considers this length of time to be significant and that a decision to cancel the visa would have negative impacts on the applicant, including the ties that he has established in Australia.
In those circumstances, the Tribunal gives this aspect weight in favour of the applicant.
·any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that the applicant has engaged in any breach of the law since the non-compliance. The Tribunal views compliance with the law as a basic requirement of all those living in Australia and subject to Australia’s authority. Adherence to the law is a legitimate expectation.
The Tribunal gives this aspect neutral weight.
·any contribution made by the holder to the community.
In submissions dated 3 March 2021, the representative noted that the applicant has been absorbed in the Australian community after living here for nearly 11 years and has established many ties with the Australian community. He has established a good business in Australia and contributed to the Australian community by paying taxes – “everyone around [the applicant] confirms that he tries his best to be useful to Australian community”. The applicant considers Australia his home and he has built a network of social ties with the Australian community.
The representative noted in the submissions that the applicant is a respectful member of the community and those around him described him as being hard-working, responsible and respectable.
The applicant stated that he donates to the Red Cross.
The Tribunal is satisfied that the applicant through employment and donation to charity has made a positive contribution to the Australian community.
The Tribunal gives this aspect weight in favour of the applicant.
Other factors
While those 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.
There is no evidence of any consequential cancellation pursuant to s.140.
The Tribunal gives this aspect neutral weight.
·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].)
The applicant gave evidence that he does not have any children.
The Tribunal gives this aspect neutral weight
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
In the course of the hearings, the Tribunal discussed with the applicant his protection claims. In relation to the claim about the uncle’s activities, the applicant said he heard from others that the uncle wrote a letter to Khamenei (the current Iranian leader not the former leader - Khomeini). The Tribunal asked the applicant about the inconsistency in the oral and written claims relating to the names. He said he thought the uncle mentioned 1368 or 1369 but this occurred in 1990, when Khomeini passed. Later it was explained that the interpreter was referring to the Persian calendar when discussing 1368 and 1369. The Tribunal asked the applicant to clarify and he said he does not know the reasons for the confusion between 1989 and 1990. The Tribunal asked the applicant about the inconsistency in the name and he said he was a child at the time and when he arrived in Australia, he did not focus on dates. He said he was told that the uncle gave such a letter to the leader. The Tribunal asked the applicant about how he knew his uncle’s activities and being described as an insane person. He said he was [age range] years old when he heard. He said his father provided for the uncle’s family who lived opposite.
The Tribunal asked the applicant about the claim that he was taken by the Basiji in 2008. He said he does not know the exact date because it has been a long time and that it was night-time. He said he was about [age] or [age] years of age at the time. The Tribunal noted that the statement was prepared about 10 years ago (December 2010) and asked why he did not provide further details at that time. He said he answered all questions asked and he was told there would be another opportunity to provide further details. He said he was not given legal advice and was in a shock. The Tribunal noted the seriousness of the claim and asked again when that happened. He said one night he was leaving his uncle’s home. He said he had loose paper/brochures in his hands relating to “part of the Bible”. He said his uncle believed that the Koran and the Bible complete one another. The Tribunal asked the applicant for further details about the brochures. He said they were copies of parts of the Bible made into booklets/brochures.
The Tribunal noted that those claims were not mentioned in the statement. He said his representative told him to keep the answers short. The Tribunal noted that the statement is comprehensive and that the person who assisted him is a solicitor with significant legal obligations and that the Tribunal would assume that the statement was prepared in accordance with the applicant’s instructions. The Tribunal noted that the document was signed. The Tribunal expressed concerns about the delay in the making of the Christian-related claims, which could suggest fabrication. He said they were studying those matters. Pressed to explain his claims, he said he was told that he would explain his claims later and that the initial interview focussed on his identity.
In relation to the claim that the Basiji demanded that he writes a letter denouncing the Ibrahimi faith, the applicant said although he was asked, he did not sign the letter. The Tribunal questioned how he was then released if he did not sign the letter. He said they were the Basiji and he was detained in the Mosque. He said they gave him the letter to sign and take it to the authorities. He said he was ill-treated and he verbally agreed to sign the letter so they let him go. He said there were three small villages and all knew each other. They said they were doing their job and asked him to sign the letter.
In relation to the claim of fearing returning to Iran on the basis of being a Faili Kurd, the applicant said he is not stateless but is of Faili Kurd ethnicity. The Tribunal discussed with the applicant the Department of Foreign Affairs DFAT COUNTRY INFORMATION REPORT IRAN 14 April 2020 (paragraphs 3.23-3.26), noting that overall registered Faili Kurds are not ill-treated in Iran.
The applicant gave evidence that he belongs to the Protestant faith and that he had a background in Christianity when he was in Iran. He said he was thinking of the ISIS uprising. He said he was a “hard Muslim…in darkness…helpless, tired”. He said that two weeks after the NOITCC, he was scared but did not have the courage to say he was lying. He went to Church and he was alone. The applicant stated that he reads the Bible (the New Testament) and attends [the] Church in [Suburb 1] on Sundays. The Tribunal noted that there is no corroborative evidence before the Tribunal to support the claim of Christianity. He said he did not know that he had to provide evidence. The Tribunal indicated that it needed to further consider the claim of Christianity, in particular whether the applicant engaged in Christian-related activities for the purpose of enhancing his protection claims.
In submissions dated 3 March 2021, the representative noted that the applicant has converted to Christianity and has been an active member of his Church. The representative provided a letter of support from [Pastor H] dated 1 March 2021 confirming the applicant’s conversion to Christianity and his engagement in Christian-related activities. The representative noted that the applicant has evangelised Christianity, that the Iranian authorities “might understand about his conversion to Christianity and his Christian related activities in Australia and his life would be in danger upon return to Iran. He can be persecuted upon return to Iran as a Christian convert an anti-Islam and anti-Iranian government activist”, that the applicant’s life would be in danger because of the previous issues as claimed, that the applicant has followed his uncle’s new religion, and that he was on the run for a while after he escaped the Basiji and the authorities in Iran. The representative submitted that the applicant would be considered an apostate for converting from Islam to a new religion created by his uncle. It was further submitted that as a mandatory consequence of the visa cancellation, the applicant could face indefinite detention and/or removal from Australia.
In the submissions to the Tribunal, the representative expressed the view that a “non-refoulement assessment process needed to be conducted”[5] . The representative noted that the Department has not for itself examined international obligations owed to the applicant. The representative contended that the applicant is unable to return to or live safely in Iran. The representative referred to the delegate’s comments that a decision to cancel the applicant’s visa is not a decision to remove a person from Australia and if the Department decided to remove the person from Australia, then consideration of international obligations would be undertaken. The representative noted that although directions by the Minister suggest that “non-refoulment obligations are not necessary to be assessed when a person is eligible to apply for another Visa. However, I believe that the matter is one of importance and can assist in the determination of proceedings such as this.” The representative suggested that the Tribunal could consider international obligations under the complementary protection provisions.
[5] That is, the International Treaties Obligations Assessment, referred to as ITOA.
The representative indicated that the applicant’s following of his uncle’s religion in Iran, his evangelism activities, as a Faili Kurd, the conversion to Christianity would result in the applicant being harmed by the Iranian regime. The representative noted that the applicant is a genuine Christian and he attends Church every Sunday and is an active member of the Church. The applicant evangelises Christianity to all around him and in public. The applicant has expressed his feelings freely against the Iranian regime and Islam. The representative referred to independent country information in support of the claims.
The applicant gave evidence on 29 March 2021 that although he has been attending Church since around 2017/2018, he converted to Christianity around two weeks subsequent to the response to the NOITCC. The Tribunal asked the applicant to explain further what prompted the conversion around that time. He said that the decision was not a “big bang event” and that even when he did not have any visa issues, he was attending Church around 2017/2018. He said he continued going to Church after receipt of the NOITCC but did not make any claims for Christianity at that time because he had not yet converted to Christianity. He said he did not intend to bring religion into “mundane or earthly affairs”. He said after the response to the NOITCC, he was suffering from mental health issues. Asked to explain what he meant by the conversion, he said he converted by accepting Jesus Christ as God coming on earth and living among us. He accepted that Jesus taught us, showed us miracles, gave life to death, gave food to the hungry, was crucified for our sins, and was resurrected three days later. The Tribunal asked how that acceptance differed from what was happening previously. The applicant referred to his own views and understanding that religion is a tool for mankind to be happy, to better oneself and to be a “true human being”. He said previously, his behaviour was not “proper”; he used to smoke a lot, party, consume excessive alcohol, and had neighbour issues. He said in the last two years, he has experienced occasions of not eating or being able to pay his rent. He said he now applies anger-management techniques, does not get upset easily and others like this version of himself. He said he tells others how Christianity has made him a better person and that as a result of the conversion, he now sleeps better.
The applicant gave evidence that he currently attends [the] Church in both [Suburb 1] and [Suburb 2] on Tuesday nights for Bible studies and Sunday mass. He gave evidence that he was baptised in January 2021. The Tribunal asked the applicant to explain his decision to get baptised. He said one day he was returning from the gym and he was talking to his representative about how to handle this matter. He said the representative asked him if he had been baptised and the applicant told him that he was waiting for the hearing because he wanted to be baptised for his own “inner self-satisfaction” and did not his matter to be “judged” on this basis. The applicant said on his way home from buying fruit, he saw [Pastor H] whom he has known since 2017/2018. [Pastor H] asked him if he wanted a job and the applicant told him his situation. [Pastor H] asked him about baptism and told him that he was baptising another person that night. [Pastor H] suggested to the applicant to get baptised that same night and the applicant accepted. He said it was his fate. The Tribunal indicated to the applicant that the Tribunal has concerns about his evidence relating to the conversion as well as the timing of his baptism, suggesting he has engaged in Christian-related activities to enhance his protection claims, to which the applicant essentially replied that he does not “judge” others’ assessments.
Evidence of [Pastor H]

In his letter to the Tribunal dated 1 March 2021, [Pastor H], amongst other things, indicated that he has known the applicant since about 2018 when he visited the church and that [Mr J] who explained to the applicant the “serious mistakes in the Quran, how Allah and Jehovah are completely different personalities…”.
[Pastor H] gave evidence that he has known the applicant since around 2018. He gave evidence that he did not know that the applicant was before the Tribunal for the cancellation of his visa based on the provision of incorrect information. The applicant interjected and said that he had told [Pastor H] yesterday that he had provided incorrect information. [Pastor H] confirmed that he did not have much records of the applicant’s Church involvement because others in Church record that involvement. He said he did not record the applicant’s details in 2018 because he was not informed by the person who recorded the details. He said he saw the applicant in December 2020 and told him that he knew him. [Pastor H] stated that someone else in the Church had told him about the applicant and that the applicant was baptised in January 2021 and that he has been more active since January 2021. He said that he has vague recollections of the applicant who is undergoing a learning process and being a more committed Christian. [Pastor H] expressed the opinion that the applicant is in the “early stages of his Christian development”.
In accordance with s.424AA, the Tribunal indicated to the applicant that the fact that the applicant did not disclose to [Pastor H] the reasons for the cancellation and being in the early stages of his Christian development, could suggest that the applicant is engaging in Christian-related activities for the purpose of enhancing his protection claims and raises doubts. In response, the applicant said there are no logical basis for recording one’s presence in Church and [Pastor H]’s lack of recollection could be due to ‘memory impairment’ and/or having to deal with a lot of people. He said he told him yesterday about the hearing in the AAT and [Pastor H] should know that it was for cancellation as one does not attend the AAT for a visa. He said there is no doubt that he is still learning.
Evidence of [Mr J]
The applicant said that [Mr J] does not know of the cancellation reasons. The Tribunal indicated that there are concerns about a witness not knowing important matters such as the facts surrounding the cancellation. The applicant said that the witnesses are appearing to give evidence about his Christianity and that he had told [Mr J] this morning about the provision of incorrect information in the past. He said [Mr J] knows in “general terms”.
[Mr J] gave evidence that he has known the applicant for a few years – four to five years when the applicant came to Church. [Mr J] was not sure if the applicant had been baptised because “many people got baptised…”. He did not remember when the applicant was baptised. He said he did not know the reasons for the applicant being before the AAT. When prompted, [Mr J] stated that he spoke to the applicant this morning.
In accordance with s.424AA, the Tribunal indicated to the applicant that the fact [Mr J] did not know about the baptism and the reasons for the cancellation as a result of the provision of incorrect information suggest that [Mr J] has limited knowledge of the applicant. In response, the applicant said he did not see the reasons for telling all about his visa cancellation. He said [Mr J] has gone to Canberra. He said the witnesses are appearing to confirm his Church attendance long before the application. He said he did not want people to assume that he became a Christian because of his visa cancellation. He said he does not want to be judged adversely for the wrong reasons due to his psychological make up.
In relation to documents provided on the morning of the hearing, that is the two letters of support dated 15 March 2021 and signed by various individuals, the Tribunal advised that it further consider the weight to be placed on that material as well as the letter from [Pastor H]. The Tribunal notes that the letters refer, amongst other things, to the applicant’s conversion to Christianity and the changes in him subsequent to that conversion.
Although the Tribunal has concerns about the applicant’s credibility, those concerns are insufficient to find that the applicant is untruthful about all aspects of his claims. The Tribunal has decided to give the applicant the benefit of the doubt and accept that the applicant has converted to Christianity and that he has engaged in Christian-related activities prior to receiving the NOITCC, suggesting good faith and genuine reasons rather than for visa purposes. [Mr J] gave evidence that he has known the applicant for a few years – four to five years when the applicant came to Church. [Pastor H]’s evidence that the applicant is in the “early stages of his Christian development” is consistent with the applicant’s version. The Tribunal accepts as plausible that the applicant suffered the claimed harm on the basis of his uncle’s religious activities.
The representative has provided substantial references to independent country information indicating that Christian converts are ill-treated in Iran. The Tribunal accepts that Iran does ill-treat converts from Islam.
Given those conclusions, the Tribunal is satisfied that there is a real chance that the applicant would suffer serious harm if returned to Iran on the grounds of his religious conversion as well as his familial relationship with his father and [Mr A] (uncle) who founded the Shia Ibrahimi faith which is perceived to be challenging the legitimacy of the Iranian regime. He would therefore be perceived as being anti-Islam and anti-Iranian regime. The Tribunal finds that there are non-refoulement obligations.
The Tribunal gives this aspect significant weight in favour of the applicant.
·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.
The cancellation of the applicant’s visa could result in the applicant’s detention and removal from Australia. The applicant could also be impacted by s.46 of the Act and PIC 4013 which means that he would face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
The Tribunal considers that although potential detention as well as the s.46 and PIC 4013 to be intended legislative consequences, given the protection claims, those consequences are serious.
The Tribunal gives this aspect weight in the applicant’s favour.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively.
There are limited aspects in favour of cancellation. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant. The Tribunal considers that the matters in favour of the applicant outweigh the other aspects in favour of cancellation.
The Tribunal has decided that the ground for cancellation exists and that having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Antoinette Younes

Senior 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.

[2021] AATA 1864

7 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies