1928485 (Refugee)
[2021] AATA 3666
•20 July 2021
1928485 (Refugee) [2021] AATA 3666 (20 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1928485
COUNTRY OF REFERENCE: Stateless/Iran
MEMBER:Michael Hawkins AM
DATE:20 July 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 20 July 2021 at 9:05pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – Iran – incorrect information provided in protection application – undocumented, stateless Faili Kurd – applicant is an Iranian national – illegal maritime arrival – atheism – applicant has contributed to the community through volunteer work– best interests of children – the risk of harm to the applicant’s children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 46A, 48A, 101, 107, 109, 116, 189, 198, 438
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for 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 section 101(b) of the Act by stating that she is an undocumented, stateless Faili Kurd. The delegate found that the applicant is not an undocumented, stateless Faili Kurd; that the applicant is an Iranian citizen; that she likely obtained Iranian citizenship automatically at birth or upon her marriage to her Iranian citizen husband; and that she was therefore an Iranian citizen at the time she submitted her protection visa application. 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 12 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from her husband and two children. The hearing was, by written consent, jointly held with her husband and children’s case, as the delegate’s decision in both cases was made on the basis of similar information. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be 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.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). 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 applicant has not complied with one or more of the relevant provisions.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
What were the particulars of the non-compliance set out in the notice?
On 4 April 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with section 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:
Evidence of grounds for cancellation:
On [date] July 2010 you arrived in [Australia] as an illegal maritime arrival (IMA) with your husband ([Mr A] dob: [deleted]) and your two sons ([Mr B] dab: [deleted] and [Mr C] dab: [deleted]). Upon arrival you claimed protection from Australia.
On 30 April 2011 you submitted a Protection (class XA subclass 866) visa application, (Forms 8668, 866C, 866D) with the assistance of your Migration Agent. On that application you were listed as the primary applicant and your sons were listed as dependants of that application.
On Form 8668, Application for a Protection (XA) visa, you answered the following question (in italics):
Question 11.
Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?
'Yes - Please refer to attachment'
An attachment entitled "Details of the applicant's family" was supplied with your application forms; the following family members were included:
Family Name
Given Name
Place and country of birth
Citizenship
Relationship to applicant
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Father
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Mother
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Brother
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Sister
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Sister
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Sister
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Brother
[deleted]
[deleted]
Baghdad, IRAQ
Stateless
Brother
On application Form 866C of your application you provided the following answers in relation to your protection claims:
Question 8.
Place of Birth:
'Baghdad, IRAQ'
Question 12.
Ethnic group you belong to:
'Faili Kurdish'
Question 41
I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries):
'Iran and Iraq'
In response to questions 42 to 46 you answered 'Please refer to my Statutory Declaration' which you completed on 3 September 2010 with the assistance of a Farsi interpreter. The relevant passages from your statutory declaration have been transcribed beneath the corresponding question.
In the beginning of that statement you stated the following (in part):
'I am a STATELESS.'
I do not have a right to Iranian citizenship nor citizenship for any other country. I was born in Baghdad, IRAQ... "
I am Kurdish Faili '
Question 42
Why did you leave that country?
' As stateless we had no documents and we had problems with Iranian Authorities and other agencies. We left Iran because we had no citizenship, we were stateless. My 2 sons had no documents and were not able to go to school to get education.
My husband and I we had white cards but were no use to us. My brother in law had [medical conditions] he could not get [treatment] in hospital because he had a white card.
Because of the lack of proper documentation was not easy to travel interstate in Iran. You need documentation to do everything from work, education and health. If you do not have documentation you cannot exist. You are no body
I had problems with Basej. Many times I was stopped and questioned and some time I even threatened because I was not wearing appropriately my hijab accordingly to them.....
My family got deported from Baghdad 30 years ago and we went to Iran, after 6 months in detention we moved to Tehran
Question 43.
What do you fear may happen to you if you go back to that country?
'If I return back to Iran I will be facing death penalty'
Question 44.
Who do you think may harm/mistreat you if you go back?
'/ again re-iterate my personal fears for my and my family's safety that if I return there to Iran our lives will clearly end with my death.
Question 45.
Why do you think this will happen to you if you go back?
'The way I left the country was illegal with fake passport, if I try to return back they will execute me. If I return to Iran the authorities will see me as a foreign spy and they will ask me why I left Iran with a false passport because as a stateless I had no passport.'
Question 46.
Do you think the authorities of that country can and will protect you if you go back? If not why not?
'The authorities cannot protect me at all. I do not have any documents or citizenship as stateless it is impossible to live a normal life.'On 4 May 2011 based on the above answers and information you had provided, as well as meeting other relevant criteria, you were granted a Protection (subclass 866) visa. Additionally your sons were granted Protection (subclass 866) visas as dependant visa holders of your husband.
On 17 June 2015 you lodged an application for Australian citizenship. As part of that application process you, your husband , [Mr A] and your eldest son, [Mr B] were required to undergo an identity assessment.
On 17 February 2017 you, your husband and your eldest son were interviewed by Identity Officers of the Department. You and your family disclosed information at the interview which has brought into question your claims of being an undocumented and stateless Faili Kurd in your Protection visa application. The following information has raised doubts as to whether you did hold the adverse profile claimed in your Protection visa application, and as such is appears you have not complied with section 101(b) of the Migration Act:
·You stated that your parents were actually born in [City 1], Iran. In your application for Protection visa you stated they were born in Baghdad, Iraq. Furthermore, this brings into question your claim that they were expelled from Iraq in 1980.
·You stated that your husband is your paternal cousin and that his parents were also born in [City 1], Iran. In the Protection visa application, it had been stated that your husband 's parents were born in Baghdad, Iraq.
·Your husband admitted to the interviewing officers that he was 'dishonest' with the Department when he stated in his Protection visa application that he only had one brother, [Mr D], who resides in [Country 1]. During the interview your husband informed the officers that he has [five siblings, named]; all of whom reside in Iran. He stated at the interview that all of his siblings are likely Iranian citizens.
·Your husband further stated that his brother, [Mr E], whom he initially declared as his only sibling in his application for Protection visa, is an Iranian citizen because he had married an Iranian citizen woman.
According to country information regarding Iranian citizenship laws, foreign men cannot acquire Iranian citizenship through their Iranian citizen wife. Iranian citizenship is acquired through paternal descent, whereby a child born to an Iranian male citizen is automatically eligible to become an Iranian citizen.
Taking into account your husband's admissions at the identity interview your husband's brother, [Mr E] is an Iranian citizen by birth, and so must all of his other siblings including himself. As your husband has been an Iranian citizen since birth, it appears you are also an Iranian citizen.
According to Article 976 of the Iranian Civil Code, every woman of foreign nationality who marries an Iranian man is considered an Iranian subject. In accordance with Article 976, if you were not an Iranian citizen by birth, you would have acquired Iranian citizenship through your marriage to your husband in December 1996.
From the information obtained from the Identity interview it appears that you are an Iranian citizen and not stateless as claimed in your Protection visa application. Given that being stateless formed the basis of your Protection claims it appears that you have provided incorrect answers/information in your Protection visa application regarding your adverse ethnic profile and fears of death upon returning to Iran or Iraq on the basis of your statelessness.
Therefore, it appears you have not complied with s101(b) of the Migration Act 1958 at Questions 42, 43, 44, 45 and 46 in Form 866C of your Protection visa application as follows:
·In response to question 42 of Form 866C, which asks why you left Iran and Iraq, you stated that as you and your family were stateless, you had no documentation, therefore were unable to access education and medical services, nor obtain employment. You and your husband were issued white cards, but they were of no use and you were often questioned and sometimes threatened by the Basej. You also stated that your family was deported from Baghdad, Iraq, 30 years prior and relocated to Iran. I consider this answer is incorrect because at your identity interview on 17 February 2017, you informed the interviewing officers that your parents were in fact born in [City 1], Iran and not in Baghdad, Iraq as stated in your Protection visa application. You also stated that your husband is your paternal cousin, whose parents were also born in [City 1], Iran. As it appears you are an Iranian citizen and were so at the time of your Protection visa application, your claims of leaving Iran due to your claimed statelessness are incorrect.
·In response to question 43 of Form 866C, you stated that if you return to Iran you would face the death penalty because you departed Iran using a false passport. I consider this answer is incorrect because it appears you are a citizen of Iran, and not a stateless and undocumented Faili Kurd as claimed. Therefore, you did not depart from Iran using a false passport and instead departed using a genuine Iranian passport and as such do not hold the adverse profile as claimed in your application for a Protection visa. I consider this based on information provided by you and your husband during an interview with the Department where you each stated that your parents were born in [City 1], Iran and not in Baghdad, Iraq. You both also informed the interviewing officers that you are paternal cousins. Taking into account the family information provided by your husband during the interview and country information stating that Iranian citizenship is acquired through paternal descent, it appears you are a citizen of Iran and were so at the time of lodging your Protection visa application.
·In response to question 44, you stated that you held fears for yours and your family's safety and that 'if I return there our lives will clearly end with my death.' You claimed the Iranian authorities will see you as a foreign spy because you departed Iran as a stateless person on a false passport, therefore you would be executed. I consider this is incorrect because based on information you and your husband provided during your identity interview on 17 February 2017, including your parents' place of birth, which you declared to be [City 1], Iran and not Baghdad, Iraq as claimed in your application for Protection visa. Your claimed status as an undocumented and stateless Faili Kurd was material to the grant of your visa and information you have provided subsequent to the grant suggests that you are a citizen of Iran.
·In response to Question 45, you stated that you left Iran using a false passport and that if you attempted to return to Iran you would be seen as a foreign spy and would be executed by the Iranian authorities. I consider this is incorrect information, because it is likely you departed Iran using a genuine Iranian passport. This is supported by information provided by yourself and your husband at interview on 17 February 2017, which suggests you are a citizen of Iran.
·In response to question 46, you stated that the authorities of Iran could not and would not protect you if you returned to Iran because 'I do not have any documents or citizenship... as stateless it is impossible to live a normal life.' I consider this answer to be incorrect because admissions provided by yourself and your husband at interview with the department on 17 February 2017 indicate that you are both citizens of Iran and were so at the time of your Protection visa application.
Additionally, it also appears that you have not complied with s101(b) of the Migration Act 1958 at Question 11 in Form 866B of your Protection visa application.
If you have not complied with section 101(b) of the Migration Act 1958, your Protection (subclass 866) visa is liable for cancellation consideration.
The delegate notes in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to question 11 in Form 866B and questions 42, 43, 44, 45 and 46 in Form 866C of her application for a protection visa.
If the applicant has failed to fill in her application form in such a way that no incorrect answers are given or provided, her visa may be cancelled. The NOICC notes that by failing to comply with section 101(b) of the Act, the applicant’s Class XA, Subclass 866 (Protection) visa is liable for cancellation under s.109 of the Act.
Response to the NOICC
The applicant and her husband jointly responded to the NOICC through their representative in May 2019. The delegate summarised the applicant’s response as follows:
The visa holder disputes the non-compliance set out in the Notice, stating the following reasons in her statutory declaration (quoted in part):
·“Following the lodgement of our citizenship application, on 17th of February 2017, identity officers interviewed my husband my eldest son and myself and I would like to describe the circumstances of that interview because it would explain why I provided the answers that I did in that interview.
·I wish to say that when we were called for the interview, we did not know we were going to be questioned for an extensive period of time, and I would personally describe that interview as scary and intimidating.
·I was asked many questions, some of which were confusing. It was a long interview and I was tired and stressed and really wanted the interview to finish quickly.
·I do not recall all the questions that were asked of me during that interview nor the answers that I provided so I cannot comment on all of them but some are referred to in the NOICC which I now would like to provide further clarity on.
·My first point is in regards to my parents. I confirm that my parents were not born in [City 1], Iran. My parents were born in Iraq and they were expelled from Iraq in 1980. During the interview, I provided my answers through the interpreter and believe there would have been some confusion with the questions. As soon as I receive my voice recordings of that interview, I would be able to confirm where there was an error or confusion.
·I wish to confirm that my husband is not my paternal cousin and that his parents were not born in [City 1], Iran. His parents were born in Baghdad, Iraq. As you would note we have different surnames and we would have had the same surnames if we were paternal cousins.
·In regards to my husband’s family composition, my husband has already provided a written response in a separate Stat Dec on 8 May 2019 and I wish to rely on the information he has provided on the matter.
·It is suggested that because my husband holds Iranian Citizenship, I am also an Iranian Citizen. I strongly deny this assertion and confirm that neither of us are Iranian nationals. That was the reason we left Iran some 10 years ago.”
In the visa holder’s husband’s referred statutory declaration, the following comments were provided (in part):
·“…Prior to arrival in Australia, we were advised by the people smuggler to keep things simple and not disclose all family members and we followed his instructions out of fear. We repeatedly heard after that from others that we could not change any of the information we have provided upon arrival or else would be deported so again out of fear, we did not correct this information.
·During the identity assessment interview, when I was asked about the citizenship of my siblings, I truly did not know the answer and my responses were only guesses. As I said I just wanted the interview to be over as quickly as possibly [sic].
·I am not in regular contact with my siblings. I talk to them probably not more than once a year and at the time of the interview I had not spoken to them for a long time.
·In the interview when I was asked about my brother [Mr E]’s citizenship status, I only guessed that [Mr E] was an Iranian citizen. The last time I spoke with him many months earlier, I knew he was trying to register his Iranian citizenship and I only assumed that with his efforts and the amount of time that had passed, he had been successful in acquiring Iranian citizenship through his wife who was an Iranian citizen.
·I later checked with him and he advised that although he had been trying very hard he had not been successful in obtaining Iranian citizenship through his wife because the law had not allowed it.
·[Mr E] told me that he still had a lot of difficulty with his work and had to get referrals for work though an Iranian citizen.
·This is the case with the rest of my siblings. Both my sisters are married to Faili Kurds and have not been able to obtain Iranian citizenship.
·I wish to confirm once more that the only reason I failed to declare all of my siblings is the reason I have stated above. There is no other reason. My siblings are not Iranian citizens and I have not knowingly provided false information regarding my family composition to conceal my own citizenship status in Iran and increase the likelihood of being granted a Protection visa.”
The applicant submitted the following reasons why the visa should not be cancelled:
In her statutory declaration, the visa holder provides the following reasons:
·“I do not want my visa cancelled because my family and I have lived in Australia for about 10 years now and consider ourselves part of the Australian community. My children have grown up here and have gone to school. Although we do not have yet Australian Citizenship on papers, we, especially our children consider ourselves Australian. This is our home and our country.
·Since I have lived in Australia, I have learnt English and have worked very hard to integrate into the community and make positive changes as much as I can.
·I have completed some hours of voluntary work in the community over the years. I have never committed a crime in Australia (or anywhere else in the world) and will not do so in the future.
·I have never breached any of my visa conditions whilst in Australia and will not do so in the future.
·I do not want my visa to be cancelled and I cannot go back to Iran, it is not my country and I am not welcomed there.
·We have been away from Iran for 10 years now. My family and I have established our lives here. We have a home and a life.
·The Iranian government would not accept us because we do not belong there but if they did, we would have to start our lives from the scratch. We would be discriminated against and persecuted.
·As a Kurdish woman in Iran, should anything undesirable happen to me, I would not receive any support from the authorities in Iran. I do not believe in Islam or any other religion and I am not prepared to pretend to practice Islam in Iran to avoid harm because I feel very strongly about my beliefs and values which are contrary to those in Islam and Iran.
·I believe that considering my current circumstances, under the 1951 Refugees Convention and the 1967 Protocol relating to the Status of Refugees, Australia still has protection obligations towards my family and I do not believe that my protection visa should be cancelled under section 109 of the Migration Act.”
The applicant had submitted the following documents:
·Her Queensland driver licence;
·Her husband’s Queensland driver’s licence;
·Her eldest child’s Queensland driver’s licence;
·Three letters of support from friends and community associates;
·Income Tax Return Tax Estimate for 2018 for her husband;
·Statutory declaration from the applicant, signed and dated 16 May 2019;
·Statutory declarations from her husband, signed and dated 8 May 2019; and
·Statutory declarations from her two children, both signed and dated 16 May 2019.
Departmental decision to cancel the applicant’s visa under s.109 of the Act
The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 25 September 2019. The Department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to give correct information regarding her identity and protection claims in Form 866B and Form 866C of her protection visa application. The Department made the following findings:
·I do not accept the visa holder’s explanation that the reason for the misinformation at her identity interview was due to being stressed or misunderstanding the questions.
·Upon listening to the recording of the interview, there is no indication the visa holder did not understand the questions put to her. I find the visa holder provided her answers with clarity, and with no indication of there being confusion or misunderstandings of the questions put to her.
·I also note that at the beginning of the interview, the interviewing officer explained the purpose of the interview and encouraged the visa holder to seek clarification if she did not understand a question. The interviewing officer also encouraged the visa holder to interrupt the interview at any time if she wished to take a break.
·At the beginning of the interview, the visa holder was cautioned that the provision of incorrect or misleading information is a Commonwealth offence and will raise doubts about the credibility of any information she has provided previously. The visa holder was given the opportunity to respond to any concerns regarding the information she provided. The visa holder confirmed her understanding through the accredited Farsi interpreter, to whom she stated she had no objections or difficulty understanding.
·I therefore consider the visa holder did understand the nature of the interview, by confirming her understanding of the above-mentioned cautions and instructions at the beginning of the interview. I also note that prior to the interview, the visa holder received a letter of invitation explaining the purpose of the interview.
·I find the visa holder provided the correct family information in her identity interview. I find this because this information was similar to that which was provided by her husband at his separate identity interview. I find it implausible that they would, separately, provide the same incorrect information, such as the birthplace of their parents, under circumstances of stress or confusion. The visa holder has failed to provide a credible explanation as to why she had inadvertently stated [City 1], Iran as her parent’s birthplace during her identity interview.
·Prior to being issued the Notice, the visa holder did not approach the Department to raise any concerns or to formally complain about the conduct of the interview in February 2017. I find she is only making such claims now as an attempt to discredit the information and answers she provided at the interview.
·I find that the information provided by the visa holder at her identity interview on 17 February 2017 is the correct information because there is no reasonable explanation or motivation as to why she would have presented the information that differed from her Protection visa application.
·I also find that the same or similar information was provided by the visa holder’s husband in his separate identity interview, which further supports the finding of non-compliance. I consider the fact they provided the same supposed incorrect information at their respective identity interviews indicates that this information is likely the truth. The visa holder’s husband’s admissions to being instructed by the people smugglers on what information to provide upon entry to Australia further supports that the information regarding their protection claims and stateless identity was incorrect and provided for the purpose of achieving an immigration advantage.
Decision
The visa holder was found to have engaged Australia’s international protection obligations on the basis of her being a stateless person of Faili Kurdish ethnicity. Her husband also made similar claims of statelessness. In the absence of information to the contrary, these claims were accepted by the Department in good faith and a decision was made to grant the visa holder her Protection visa.
Through later interactions between the visa holder and the Department, this information - which was material to the grant of her Protection visa – has been found to be incorrect.
Upon being presented with the non-compliance, the visa holder has provided explanations for the variances in information she provided regarding her parents’ birthplace and her husband’s family information. I find the visa holder’s explanations are not sufficient to satisfy me that it was the result of confusion or genuine misunderstandings.
I find the visa holder knowingly disclosed incorrect information in her application for a Protection visa for the purpose of achieving a favourable immigration outcome. I am of the view the visa holder fabricated her claims of being a stateless Faili Kurd and limited family information was provided in order to avoid any possible scrutiny that could jeopardise her visa application’s success.
Statutory declaration sworn on 5 July 2021
The applicant provided a statutory declaration, sworn on 5 July 2021.
Incorrect information
The applicant states that she agrees she provided some incorrect information in her protection visa application. She states she is an Iranian citizen and that she incorrectly advised the Department of Home Affairs that she is stateless.
The applicant claims she provided the incorrect information upon arrival in Australia out of fear. She claims that prior to her arrival, she was told by a smuggler and many others that if she and her family had their passports, they would be returned to Iran. She claims they were advised to say they were stateless and they took this advice because they were afraid of being returned to Iran. She claims the boat journey was very traumatic and dangerous and they did not want to do anything to jeopardise our stay in Australia.
The applicant claims that at the identity assessment interview, she considered telling the truth, but the interview was scary and she felt intimidated and not welcomed in telling the truth.
The applicant states that she wishes to apologise to the Australian authorities for providing false information and that she is sorry for not coming forward with the truth earlier.
Identity
The applicant claims her name is [applicant name] and that she has never been known by any other names.
The applicant claims she is a Faili Kurd who was born in Iraq and her correct date of birth is [date]. She claims her parents were also born in Iraq. She claims she has extended family members who are still stateless Faili Kurds in Iran.
Why she left Iran
The applicant claims the real reason she left Iran was because she and her husband had a difficult life. She claims she and her husband were discriminated against for being Faili Kurds.
The applicant claims the other reason she left Iran was because she no longer wanted to follow Islam and she was too scared to stop practising Islam in Iran. She claims she was born and raised a Muslim. She claims she left Iran because she did not want her children to be forced to follow Islam as she was. She claims she wanted her children to grow up in a democratic country where they can freely express their opinion and believe what they want to believe.
Why she believes her visa should not be cancelled
The applicant provided the following reasons why her visa should not be cancelled:
The applicant claims she and her family have lived in Australia for over 11 years and they consider themselves to be part of the Australian community.
The applicant claims the visa cancellation has caused her family significant hardship. She claims to be under a lot of stress and anxiety, which she is currently taking medication for.
The applicant claims her children were kids when they arrived in Australia. She claims they are now young men and Australia is their home. She claims they dislike Islam and they would not be able to survive in an Islamic country like Iran.
The applicant claims she and her family are good people of good character. She claims they have always abided by Australian laws and that they have never breached any Australian laws.
The applicant claims she has learned English, built a good life and supported his family in every way in Australia.
The applicant claims she has made a positive contribution to the Australian community. She claims that in 2013 and 2014, she volunteered on a full-time basis at her son’s school. She claims she continued to volunteer on and off after this initial two-year period.
The applicant claims that she is an atheist, even though she was born and raised a Muslim. She claims to dislike Islamic practices and the Iranian authorities.
The applicant claims that if her visa is cancelled and she is returned to Iran, she would not receive any support from the Iranian authorities if anything undesirable happened to her, because she is a Kurdish woman in Iran. She claims she no longer believes in Islam or any other religion and she is not prepared to pretend to practice Islam in Iran to avoid harm. She claims she feels very strongly in her beliefs and values, which are contrary to those of Islam and Iran.
Pre-hearing submissions dated 9 July 2021
The Tribunal received pre-hearing submissions from the applicant’s representative dated 15 July 2021.
The applicants’ representative acknowledged that the applicant has provided incorrect information in her protection visa application and that the applicant accepts there was non-compliance in the way described in the NOICC.
The applicant’s representative noted that the applicant’s sons’ interests would be affected by the cancellation of their father’s visa, as their visas would be subject to consequential cancellation. She submitted that cancellation of the applicant’s visa would not be in the best interest of her children.
The applicant’s representative submitted that the applicant and members of her family unit would suffer a very high degree of hardship as a result of the cancellation of their visas.
The applicant’s representative requested the Tribunal to exercise its discretion in favour of the applicant due to concerns for the welfare and safety of the applicant’s children if they were returned to Iran. She further submitted that the applicant’s children fear harm if returned to Iran.
Post-hearing submissions dated 15 July 2021
The Tribunal received post-hearing submissions from the applicant’s representative dated 15 July 2021.
The applicant’s representative submits that the applicant’s sons fear persecution and/or serious harm by the state of Iran during their compulsory military service and their refusal to participate in Islamic practices and/or their desertion from their compulsory military service duties.
The applicant’s youngest son also claims to fear persecution and/or serious harm arising from his activities on social media. The representative states that he fears he will be questioned, arrested and harmed by the Iranian authorities on return to Iran, because he has freely expressed his opinion against the Islamic religion and the Iranian government on social media. The representative submits that he would be seen as someone who is anti-regime and actively trying to bring down the regime, and on that basis, he will suffer persecution by the Iranian authorities amounting to serious harm.
The applicant’s representative submitted country information from various sources on compulsory military service in Iran and threat of harm for actual and imputed religious opinion faced by social media activists in support of the applicant’s sons’ claims.
The applicant’s representative submits that the applicant’s youngest son has rejected Islam at a fundamental level and has spoken against god, religion and the Iranian authorities in many social media forums. She submits that the abandonment of an Islamic leader is the abandonment of Islam, which is considered apostasy, which encompasses acts of conversion or atheism. She submits that such persons are reported to be ostracised or harmed by their community and suffer severe punishment by Iranian authorities. She submits such persons are required to hide their religious views to avoid persecution. She submits that it is a well-established legal principle that decision makers must consider the threat of serious harm and not the applicant’s ability to avoid that harm.
The applicants’ representative submits that the applicant’s youngest son will not hide his political and religious opinions in Iran, and he desires to continue to share his beliefs actively and openly. Referring to s.5J(3) of the Act, she submits that he cannot be expected to take reasonable steps to modify his behaviour so as to avoid a real chance of persecution, as that modification would conflict with a characteristic that is fundamental to his identity or conscience; or conceal an innate or immutable characteristic; or conceal or alter his true political beliefs.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.The applicant’s protection visa application form (visa application). The relevant protection visa was granted to the applicant on 4 May 2011;
b.The applicant’s identity documents being a copy of her Queensland driver licence provided to the Department;
c.The Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 dated 4 April 2019 (NOICC);
d.The Notification of Cancellation under Section 109 of the Migration Act 1958 dated 25 September 2019 (delegate’s decision record);
e.The application for review form dated 9 October 2019, which did include a copy of the delegate’s decision record;
f.Department file [number] concerning the cancellation of the applicant’s protection visa;
g.All documents submitted to the Department of Immigration and Border Protection (the Department) in support of the applicant’s protection visa application and NOICC response, including:
· Queensland driver licences of the applicant, her husband and her eldest child;
· Three letters of support from friends and community associates;
· Income tax return tax estimate for 2018 for her husband;
· A statutory declaration from the applicant, sworn on16 May 2019;
· A statutory declaration from her husband, sworn on 8 May 2019;
· Statutory declarations from her two children, both sworn on16 May 2019; and
· A statement of claim from the applicant dated 3 September 2010;
h.All documents submitted to the Tribunal in support of the applicant’s application for review:
·Pre-hearing submissions from the applicant’s representative dated 9 July 2021;
·A statutory declaration from the applicant, sworn on 5 July 2021;
·A statutory declaration from the applicant’s husband, sworn on 5 July 2021;
·Statutory declarations from the applicant’s children, both sworn on 5 July 2021;
·A support letter from [a named person];
·Screenshots of one of the applicant’s children’s tweets posted on Twitter, Instagram page and private messages on Instagram;
·Photographs of one of the applicant’s children’s bedroom;
·Copies of the original Iranian birth certificates of the applicant, her husband and children, each accompanied by an English translation; and
·Post-hearing submissions from the applicant’s representative dated 15 July 2021.
i.Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 12 July 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Iran, published on 14 April 2020 (DFAT Report on Iran).
Hearing:
The Tribunal conducted an in-person hearing on 12 July 2021. The hearing was, by written consent, jointly held with her husband’s case, as the delegate’s decision in both cases was made on the basis of similar information. The applicant attended the hearing with her representative. The Tribunal also received oral evidence from her husband and two sons. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Home Affairs (the Department) to cancel her protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in her application for a protection visa. As a result of this, the applicant was served with a NOICC of her protection visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of section 101(b) of the Act, referring amongst other things to the answers the applicant had provided in her application for a protection visa regarding her identity and her protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a Class XA, Subclass 866 (Protection) visa on 4 May 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and her representative that the Tribunal might take the applicant’s claims for protection in her protection visa application lodged with the Department of Home Affairs on 30 April 2011 as having been read. The applicant and representative agreed.
Section 438 Certificate:
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that the material contained in folios 28-32 of Department file [number] should not be disclosed to the applicant because the disclosure of these documents would be contrary to the public interest. The certificate further states that the disclosure of these documents would be contrary to the public interest, because disclosure of these folios may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of these methods.
The Tribunal noted that it had provided to the applicant and her representative a copy of the certificate prior to the hearing and they both confirmed having received it.
The Tribunal considered the validity of the Certificate. It determined that the certificate is valid. The Tribunal is satisfied that in weighing the public interest aspects against the interest of the applicant being provided natural justice, the relevant information from these folios which is relevant to the decision had already been disclosed to the applicant in the delegate’s decision record. The Tribunal considers there are compelling public interest reasons for not disclosing the information in the folios, and the applicant’s interest of having access to the documents does not outweigh the potential harm to the public interest in the event the documents are disclosed.
Notwithstanding, the Tribunal had advised the applicant and representative that the information was contained in an Identity Assessment Report and the information had effectively been summarised in the NOICC and then covered in the delegate’s decision. The Tribunal advised that it would be giving the material contained in the document weight only to the extent that its contents had been referenced in the NOICC and the delegate’s decision.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in Form 866B and 866C of her application for a protection visa are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that she gave incorrect answers to question 11 in Form 866B and questions 42, 43, 44, 45 and 46 in Form 866C of her application for a protection visa. In summary, the applicant did not hold the claimed profile of an undocumented, stateless Faili Kurd who lived in Iran.
The Tribunal noted the very recent Statutory Declarations of the applicant and her husband wherein each agreed they had provided incorrect information in their Protection visa applications. They each stated that they were Iranian citizens and they each agreed they had incorrectly advised the Department of Home Affairs that they were stateless.
This was further confirmed by the applicants’ Representative in a submission dated 9 July 2021 wherein the Representative acknowledged that the applicant and her husband had provided incorrect information in their Protection visa applications and that the applicant and her husband accept there was non-compliance in the way described in the NOICC.
The Tribunal acknowledged the newfound honesty of the applicant and her husband but noted that both had had numerous opportunities in which to make an honest statement, from the time of making their Protection visa application, through to the response to the NOICC. The Tribunal further noted the statements of the applicant and her husband that they had often thought of making an honest statement to correct the record. The Tribunal explained to the applicant and her husband that it needed to balance the fact that they have ultimately decided to be honest about their claims against the time in which it has taken them to do so.
The Tribunal considered the claims of the applicants, noting that they related to them being stateless Faili Kurds. The Tribunal explained that the delegate had accepted and relied upon the information provided by the applicants in their Protection visa applications in making the decision to grant the applicants Protection Visas. The Tribunal explained further that had the Delegate been aware of the correct information at the time of making the decision, the Protection visa applications would have been subject to further scrutiny, and it is possible that the applicants would not have been granted Protection Visas.
The applicant accepts that she provided incorrect information in her Protection Visa application and further accepts that there is non-compliance with s.101(b) of the Act as identified by the delegate in the NOICC.
The applicant states that she is remorseful and apologetic to the Government of Australia.
The applicant states in her Statutory Declaration that she was influenced by people smugglers to lie about her background, and coupled with her fear of authorities, the Tribunal should weight this in favour of the applicant. The Tribunal acknowledges supporting country information that people smugglers recommend identities to be adopted by refugees.
Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that she did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
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 content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
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.
The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·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].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The correct information
The applicant claimed in her Protection visa application that she was a stateless Faili Kurd from Iran, and have not been able to live a normal life where she could access basic essential public services such as health and hospital care, education, insurance and housing. She claimed she and her husband were issued white cards, but they were no use and they were often questioned and sometimes threatened by the Basij.
The correct information is that the applicant is an Iranian citizen and would have access to the benefits and rights accruing to Iranian citizenship including education and medical services.
The correct information is that the applicant, her husband and her two children are Iranian citizens.
The correct information is that the applicant departed Iran using her own validly issued Iranian passport.
The content of the genuine document (if any)
The prescribed circumstance 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
The decision to grant the applicant her protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.
As has been explained in the delegate’s decision, the Tribunal considers that the applicant may not have been granted a visa if it had been known that she had given incorrect answers about her claims in her application for the visa.
The applicant, in her statutory declaration of 5 July 2021, has provided new claims or grounds on which the applicant believes she may be entitled to protection, including as to her atheism and political views.
As these new claims were not before the delegate when making the decision to grant a visa, they could not have been considered by the delegate.
The circumstances in which the non-compliance occurred
The incorrect information was provided at the time that the applicant made her Protection visa application.
At an Identity Interview participated in by the applicant, her husband and eldest son, with the Department on 17 February 2017, inconsistent information was received from the three of them, causing the Department to scrutinise the authenticity of their protection claims.
The Tribunal discussed with the applicant their departure from Iran. The applicant advised that they flew from Iran to [Country 2] where they boarded a boat to Australia. The Tribunal asked how many people were aboard the boat and she, after consultation with her husband, advised that there were about 45 people aboard the boat.
The Tribunal discussed the circumstances by which the applicant came to make the claims she did. The Tribunal has referenced the explanation about the applicant’s fears of authorities and the role of people smugglers above.
The Tribunal queried the applicant as to the advice they received about withholding their true identity to the Australian authorities. The applicant replied that the people smugglers told them they ought not say they were Iranian or they would be sent home. The Tribunal asked the applicant whether they had been threatened by the people smugglers, or anyone else, for example, had a gun been held against their head. The applicant replied that that was not the case and that the people smugglers had only offered them advice. The Tribunal notes the applicant and her husband’s Statutory Declarations wherein they regret having relied upon that advice. The Tribunal confirmed with the applicant that the decision to provide incorrect information about their citizenship was their own decision. The applicant confirmed that.
The Tribunal has considered that explanation, but is satisfied that the applicant acted upon the advice of the people smugglers of her own free will. She was an adult at the time of making her application for a protection visa. She formed the view that the advice of the people smugglers to lie, rather than tell the truth about her true position, would enhance her chances of obtaining a protection visa.
The Tribunal is completely satisfied that the applicant fabricated her claims at the time of making her Protection visa application, in order to achieve a favourable immigration outcome. She relied upon the advice of people smugglers which she agreed was in the form of advice only and she agreed that the decision to provide claims based on her being a stateless Faili Kurd was a decision made by her and her husband.
The Tribunal gives this considerable weight in favour of cancelling the visa.
The present circumstances of the visa holder
The Tribunal discussed with the applicant and her husband their present circumstances.
The Tribunal noted that the applicant, her husband and her children had arrived in Australia in July of 2010. Therefore, they have been in Australia now for 11 years.
The Tribunal discussed their living arrangements since they had arrived. The applicant advised that they had been living at [a suburb] for four years, then at [another suburb] for four years, and most recently at [a third suburb]. She advised that the children had attended [named] High School.
The Tribunal asked the applicant whether she and her husband had made many friends. She replied that they did not have many friends.
The Tribunal inquired of the applicant and her husband about their work activities.
The applicant advised that she did not work and was responsible for raising the family. She had participated in voluntary work at the children’s school doing tuckshop for about two years.
100. The Tribunal then asked the applicant’s husband about his work history.
101. The applicant’s husband explained that he had spent the first two years in Australia learning English. In 2013, he worked as a volunteer for [a charitable organisation].
102. In 2013 to 2014, the applicant’s husband worked in a casual capacity at a [workplace].
103. In 2014 to 2015, the applicant’s husband worked at a [shop].
104. In 2016, the applicant’s husband took a position as [an occupation] at [a workplace]. He continues to work there to this day.
105. The Tribunal noted references from people that confirmed the nature of voluntary work, the fact of home ownership and that they were honest, hardworking people.
106. The Tribunal is satisfied that it was evident that the applicant’s husband was hardworking and had maintained employment virtually from his arrival. He had saved sufficient money to put a deposit on a home and so the family enjoyed home ownership.
107. The Tribunal gives this some weight against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
108. The applicant has complied with all timelines during the NOICC process. However, the applicant continued to maintain the fiction of her statelessness and despite being given an opportunity to do so, did not make a correct statement.
109. The revelation of the applicant’s Iranian citizenship only came to light shortly before this hearing.
110. The Tribunal gives this some weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
111. The applicant advised that there had been no breaches of her visa terms.
112. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
113. The Tribunal gives this some weight against cancelling the visa.
The time that has elapsed since the non-compliance
114. The Tribunal notes that her visa was cancelled on 25 September of 2019 and that about a year and half has since elapsed. It also notes that incorrect information first occurred when making her protection visa application in April 2011.
115. The Tribunal is sympathetic to that.
116. However, the Tribunal is also mindful of the fact that the applicant has been in Australia for this period of time by reason of her provision of incorrect information to facilitate the grant of a protection visa. The Tribunal is also mindful of the significant non-compliance that has occurred, and the maintaining of incorrect statements and information during this process.
117. Accordingly, the Tribunal’s sympathy is tempered.
Any breaches of the law since the non-compliance and the seriousness of those breaches
118. The applicant advised that she has not breached any law.
119. The applicant stated that none of them have committed any crimes at all in Australia, not even a red light camera offence.
120. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
121. The Tribunal gives this some weight against cancelling the visa.
Any contributions made by the visa holder to the community
122. The Tribunal acknowledges the volunteer work undertaken by the applicant’s husband at [the charitable organisation] and the voluntary work performed by the applicant at the children’s school performing tuckshop duties.
123. The Tribunal also takes account of the considerable work commitment by the applicant’s husband and the commitment made by the applicant’s husband to his family in purchasing a house in order to put a roof over their heads, and the contribution of the applicant to maintaining the household.
124. The Tribunal gives this some weight against cancelling the visas.
Whether there are mandatory legal consequences to a cancellation decision
125. Should the visa be cancelled, the applicant would be subject to Section 46(1) of the Act, which bars her from making an application for a further visa. Also, as an IMA the applicant would become an unlawful non-citizen and would be subject to Section 46A(l) and barred from making a valid application for a further visa, including bridging visas, and may be detained. Further, a consequence of cancelling the Protection visa is that she would become subject to Section 48A(1B) of the Act barring her from making a further application for a Protection visa while in the migration zone. The applicant will be unable to make any visa application while in Australia unless the Minister intervenes and lifts the decision bar.
126. If the applicant’s visa is cancelled, she will become an unlawful non-citizen and may be liable for detention under Section 189 of the Migration Act and removal from Australia under Section 198 of the Act. However, this can be mitigated by voluntary departure.
127. However, the Tribunal considers these to be standard mandatory legal consequences as a result of a visa cancellation outcome and gives these considerations minimal weight in the applicant's favour.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
128. The Tribunal has given consideration to the claims of the applicant and her husband that they disagree with the policies of the Iranian government and that they now consider themselves to be atheists. The applicant stated that she does not believe in any God.
129. The Tribunal has also considered an imputed claim that the applicant maintains she is a Faili Kurd.
130. The Tribunal had regard to Country Information that it had obtained from the DFAT report on Iran:
Faili/Feyli/Iraqi Kurds
3.24 Upon seizing power in the 1960s, the Ba’athist Government in Iraq adopted several policies with theeffect of excluding Faili Kurds, who the Iraqi authorities considered to be Iranian. The most notable of these – Decree No. 666 (1980) – cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is at the high end).
3.25 Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons denaturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
3.26 Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
131. The Tribunal accepts this country information and is satisfied that the applicant will not be persecuted on the basis of her being a Faili Kurd who is a citizen of Iran.
132. The Tribunal considered her claims to have political views inconsistent with the Government.
133. The Tribunal had regard to Country Information that it had obtained from the DFAT report on Iran in relation to political opinion.[9]
[9] DFAT Report, paragraphs 3.81, 3.82 and 3.88
3.81 Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation. Social media accounts of well-known figures and celebrities attract particular scrutiny. Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times.
3.82 Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.
3.88 DFAT assesses that the authorities retain an ongoing interest in those identified as having played a leading role in the 2017-18 protests. DFAT assesses that individuals meeting this profile are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will target ordinary participants whose motivation to demonstrate was to protest economic difficulties.
134. The Tribunal saw no evidence of any political activism or communication of political views on the part of the applicant.
135. The Tribunal accepts this country information and is satisfied that the applicant will not be persecuted on the basis of her having political opinions critical of the Government.
136. The Tribunal had regard to Country Information that it had obtained from the DFAT report on Iran in relation to atheism:[10]
[10] DFAT Report, paragraphs 3.70 – 3.72
Atheists and Secular or Non-Practising Muslims
3.70 Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
3.71 A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty. DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure. DFAT is unaware of individuals being prosecuted for atheism.
3.72 DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their nonbelief face a moderate level of official and societal discrimination.
137. The Tribunal saw no evidence of any communication of religious views on the part of the applicant. The applicant presented no evidence of her atheism other than a statement to that effect. No evidence was presented as to any public renunciation of Islam.
138. The Tribunal is satisfied that the applicant simply does not observe the Islam faith. There is no evidence of anything further than that. As such, the Tribunal is satisfied that the applicant will not renounce her Islam religion, she will simply continue to non-observe.
139. The Tribunal is of the view that s5J(3) will not be enlivened, as she will not be modifying her behaviour. She will not be altering her religious beliefs, including by renouncing a religious conversion, or concealing her true religious beliefs.
140. The Tribunal accepts this country information and is satisfied that the applicant will not be persecuted on the basis of her religious views or her claiming to be an atheist.
141. The Tribunal also considered the impact of the applicant returning to Iran.
Treatment of Returnees
Conditions for Returnees
5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29 Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
142. The Tribunal has found that the applicant departed Iran using a legitimate Iranian passport. Accordingly, she will not be returning on temporary travel documents.
143. The Tribunal is satisfied that the applicant has no adverse profile in Iran and is therefore unlikely to attract an attention upon her return.
144. An important consideration for the Tribunal is the fact of the impact of cancellation of the applicant’s visa upon her two children.
145. The Tribunal must give due consideration to the rights of the child and family unity obligations.
146. Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. "
147. Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State ... "
148. Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:
"Obligations apply to persons within Australia's territory and also to persons within Australia's jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)... "
149. The Australian courts have found that generally it is in the best interests of the child to remain with their family. The applicant has two adult children, both born in Iran, who are dependants on their father’s protection visa.
150. The Tribunal discussed with the applicants that it was required to consider the Convention on the Rights of the Child. It advised that Australia has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration.
151. The Tribunal asked the applicant the age of the children. She replied that [Mr B] was [age] years of age and that [Mr C] was [age] years of age.
152. Accordingly, the Convention on the Rights of the Child is not applicable in the applicant’s case.
153. The Tribunal has made the decision in respect of the applicant’s husband’s application for review to set aside the decision under review and substitute a decision not to cancel his visa. This means the applicant’s husband and children’s protection visas will be reinstated and they will be able to remain in Australia.
154. The Tribunal notes that the cancellation of the applicant’s visa would result in the consequence of the applicant being returned to Iran and separated from her husband and children. The Tribunal notes the applicant’s husband and children will not go to Iran. Accordingly, the Tribunal considers that the cancellation of the applicant’s visa will result in the separation of the family unit as her husband and children are not required to depart Australia with the applicant.
Conclusion
155. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By her deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a Protection visa, notwithstanding her present, though late, apology and remorse.
156. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
157. The Tribunal has also considered country information relating to returnees to Iran, noting that the IOM runs a program to assist voluntary returnees to Iran and provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.[11]
[11] DFAT Report, paragraph 5.27 – 5.28
158. The Tribunal also notes that the applicant is of means, and upon the sale of her house, will have some proceeds by which to re-establish herself back in Iran.
159. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[12]
[12] DFAT Report, paragraph 5.29 – 5.31
160. The DFAT Report also notes that authorities pay little attention to, and that it is not aware of prosecutions for, atheism or proselytising while abroad.[13]
[13] Ibid
161. As decisions go, this one is line ball, and the Tribunal acknowledges that finding the right balance in this case has been a complex one. The Tribunal has not rushed into this decision and has revisited it regularly. On the one hand, it is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) her claims for advantage. It is mindful that each of her “new” claims have failed to persuade the Tribunal, either individually or cumulatively, that she will be persecuted now, or in the reasonably foreseeable future, if she returns to Iran.
162. However, the Tribunal notes that the applicant has resided in Australia for around eleven years and this is a very substantial period of time. It also notes that the applicant has made connections with the community. The Tribunal also notes that she has enjoyed the benefits of the health and employment systems, benefits which the Tribunal has not been persuaded she could not obtain in Iran.
163. The Tribunal is very mindful of the impact return to Iran will have on her husband and two sons as a consequence of the separation of the family unit. The Tribunal is mindful that the applicant’s husband and sons will not go to Iran.
164. But that which swings the balance is the separation of the family unit.
165. 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.
166. Having had long and due regard to all the relevant circumstances, as discussed above, but particularly to the risk of harm to the applicant’s children, the Tribunal concludes that the visa should be not be cancelled.
Overall conclusion
167. 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
168. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins AM
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
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