1931013 (Refugee)

1931013 (Refugee) [2021] AATA 1608 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1931013

COUNTRY OF REFERENCE: Iran
MEMBER:John Cipolla
DATE:7 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 7 April 2021 at 3:26pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – providing a bogus document – detention – non-genuine penal certificate – imputed political opinion – opposition to the government – activity deemed to be anti-Islamic – breach of the Islamic dress code – sexual assault in prison – document material to the applicant’s claims – relationship with an Australian citizen – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 applicant arrived in Sydney Australia [in] February 2014 by air as the holder of an Iranian passport in another name. The applicant lodged a Protection visa application in his own name on 24 April 2014 and annexed to the application a statutory declaration dated 23 April 2014 encapsulating his claims for protection.
On 12 May 2015, a Departmental delegate, after assessing the applicant’s claims and interviewing the applicant concluded that the applicant was owed protection obligations.
On 2 May 2019 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Protection visa on the basis that he had provided incorrect information to the Department in support of his Protection visa and he had also provided a bogus document to the Department.
The NOICC was based on information that had been obtained by the Department on 18 December 2017, some 16 months before the NOICC was issued. The information received by the Department on this date indicated that the overseas post in Tehran had determined that the penal certificate provided by the applicant in support of his Protection visa application was a non-genuine document. The basis of this finding was that the photo of the applicant had not been stamped by the Tehran Public and Revolutionary Prosecutors Office as was the customary requirement to ensure authenticity. It was based on this anomaly that the Departmental delegate concluded “I reasonably suspect the Penal Certificate provided by the visa holder in his Protection visa application in support of his claims is a counterfeit document and hence is a bogus document as defined under section 97 of the Migration Act.”
The delegate went on to find that as the penal certificate was used by the applicant to corroborate his claimed periods of imprisonment in Iran, and given the finding that this document was a bogus document, that his claims of being imprisoned and the subject of mistreatment and persecution in Iran constituted incorrect information.
The applicant was invited to respond to the NOICC, namely whether he agreed that the grounds for cancellation of his visa existed, and whether or not, having regard to relevant discretionary considerations, his visa should be cancelled. The applicant provided a comprehensive response to the NOICC in the form of a statutory declaration dated 15 May 2019.
In response to the NOICC the applicant stated that each of his protection claims pertaining to his arrest and detention, his political views, his profile, along with his professional activities and him being forced to make a confession on television to having an unlawful relationship with a married woman was all true and correct. The applicant advised that the penal certificate had been obtained through his brother in Iran, a third party, and he could not comment on the processes in which it had been obtained as he was in Australia. The applicant made reference to the number of additional independent pieces of evidence that he had provided to the Department in support of his claims apart from the penal certificate. This included numerous [social media entries], videos and photographs of his work in Iran as [an Occupation 1] and a video of the applicant on Iranian television for his involvement in anti-Islamic activity, being accused of having an affair with a married woman.
The applicant further claimed that at the time that he arrived in Australia he was suffering with a range of mental health issues as a result of his adverse experiences and incarceration in Iran. The applicant advised that he had discussed his mental health issues with a close friend [Dr A] who was a general practitioner, along with his own general practitioner and that he was referred to a counsellor. The applicant noted that his claims have been thoroughly assessed by the Departmental delegate in 2014 and found to be genuine. The applicant noted that his claims were now being impugned on the basis of the penal certificate that he had submitted.
With regard to the penal certificate that the applicant had provided in support of the application the applicant noted that the document was issued whilst he was in Australia and was provided to him by his brother. The applicant stated that the purpose for which he decided to acquire the penal certificate was to help to corroborate his claims that he had been arrested and detained in Iran. The applicant stated that his then lawyer, in Australia, who had assisted him with his Protection visa application asked him to obtain as much evidence as possible to support his case for protection, including a police clearance from Iran to show that he had previously been arrested. The applicant had previously attempted to get access to the penal certificate through the Iranian Embassy in Canberra but was told that without a valid passport they could not assist in the processing of an application for this document. As a consequence the applicant called his brother in Iran to ascertain if he could assist. In due course his brother advised him to provide two photographs, along with a signed application form which his brother had faxed to the applicant in Australia. The applicant complied with this request and eventually his brother emailed him the penal certificate. The applicant stated that he submitted the penal certificate to the Department after he received it from his brother.
The applicant also submitted that he held a real fear that he would be subject to significant harm if he had to return to Iran including arrest and torture because of his adverse profile in Iran as a result of his profession and his deemed involvement in anti-Islamic activity. The applicant submitted that he held a well-founded fear of persecution if he was returned to Iran because of his engagement in activity deemed to be anti-Islamic. The applicant stated that he visited his mother in 2016, in [Country 1], as he can never return to Iran and it is easy for Iranians to obtain a visa for [Country 1]. The applicant stated that the fact that he met his mother in [Country 1] corroborated his fear of ever returning to Iran.
The delegate proceeded to cancel the visa on the basis that the delegate formed the view that the applicant had provided incorrect information and a bogus document in support of his claims for protection and that having regard to the relevant discretionary factors the visa should be cancelled.
As noted, the document in question was a penal certificate issued by the Iranian authorities. The delegate noted that the applicant in his claims for protection advised that he had been detained in Iran on two occasions for a total of [number] days. The periods of detention were due to the fact that the applicant who is [an Occupation 1], had engaged in an unlawful affair with a married woman by the name of [Ms B]. In addition to this the applicant had been accused of being involved in immoral and anti-Islamic activities in his profession, by [specified work activities]. The delegate noted that “in support of his Protection visa application the visa holder submitted a scanned copy of his Iranian Penal Certificate (Number: [number]) from the Public and Revolutionary Prosecutors Office of Tehran. This document was translated by an accredited interpreter on 30 December 2014. This document indicated that the visa holder has a record of imprisonment for [number] days.”
As noted the provenance of this document was called into question on the following basis:
On 18 December 2017, the Department received information from the overseas post in Tehran that indicated the visa holder’s Penal Certificate (Number: [number]) is a non-genuine document. Specifically, the photo of the holder has not been stamped by the Tehran Public and Revolutionary Prosecutors Office as is the customary requirement to ensure authenticity. Based on these findings, I reasonably suspect the Penal Certificate provided by the visa holder in his Protection visa application in support of his claims is a counterfeit document and hence is a bogus document as defined under section 97 of the Migration Act 1958, the relevant statute at the time, which states:
A Bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(b) is counterfeit or has been altered by a person who does not have authority to do so
Subsequently it appears that the visa holder has answered questions 43, 44 and 45 incorrectly in his Protection visa application.
In response to question 43 the visa holder stated:
‘I have once been arrested (twice), charged with and jailed for a period of [number] days ([number] days in [Prison 1] and the rest in [Prison 2].’
This response is incorrect as I reasonably suspect the Penal Certificate provided by the visa holder in support of his application is counterfeit and therefore is a bogus document. Therefore, it appears the visa holder was not arrested and jailed by the Iranian authorities as claimed in his Protection visa application.
This response appears to be incorrect as I reasonably suspect the Penal Certificate provided by the visa holder in support of his application is counterfeit and is a bogus document. Therefore, it appears the visa holder was not arrested and jailed and does not fear harm as claimed in his Protection visa application.
Based on the above information, I consider the visa holder has not complied with section 101(b) and section 103 of the Migration Act 1958.
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 11 March 2021 to give evidence and present arguments. An interpreter was engaged but the applicant was willing to proceed without the interpreter. The interpreter remained in the hearing room for the preliminaries, but the applicant did not wish the interpreter to remain in the hearing room during his evidence, due to the sensitive nature of the evidence and his anxiety and stress levels. The interpreter remained at the Tribunal premises until the conclusion of the hearing in case the applicant required his assistance. The interpreter was not required for the remainder of the hearing.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 in the following respects.
As noted above the applicant’s claims contain a number of components. The applicant is a qualified [Occupation 1] and he worked in Iran as [an Occupation 1]. The applicant as a result of his profession was an active user of [social media platforms], posting photographs of [his work] and making videos. As a consequence of his profile and profession along with an accusation that he was engaged in an extramarital affair with a female client, the applicant was arrested and detained by the Iranian authorities on two separate occasions and spent a total of [number] days in detention. The applicant was subject to torture, sexual abuse and ill treatment whilst in detention by the Iranian authorities. The interrogation of the applicant for his perceived involvement in anti-Islamic activity and an extramarital affair was broadcast on national television in Iran [and] this footage was provided to the Departmental officer who assessed the applicant’s claims for protection and this video was viewed by the delegate. The applicant was accused of being involved in propagating western values and abusing the trust of [female clients of his occupation].
To corroborate the periods of detention the applicant provided an Iranian penal certificate. This certificate was accepted by the delegate who assessed the applicant’s claims. The delegate determined that the applicant was owed protection obligations by Australia in a decision made on 12 May 2015. Some 18 months after the grant of Protection the Department received advice on 18 December 2017 that the penal certificate provided by the applicant was a bogus document for the reasons that have been articulated above.
REVIEW HEARING
As discussed with the applicant at the review hearing the Tribunal advised that the cancellation of a Protection visa has profound consequences for an applicant and if the decision was wrong an applicant could face persecution or significant harm upon return to their home country. The Tribunal noted that the genesis of this cancellation was the check of the applicant’s penal certificate submitted with his Protection visa application, more than 18 months after he was found to be owed protection obligations by Australia. This check through the relevant overseas post found that the provenance of the penal certificate was questionable on the basis that it lacked a usual feature that would confirm authenticity and that is the applicant’s photo had not been stamped by the Tehran Public and Revolutionary Prosecutors Office as was “the customary requirement to ensure authenticity.”
The Tribunal noted that it had searched country information sources to ascertain the reliability of documents issued in Iran, their relevant identifying features, and whether or not there could be differentials in a document based on where a particular document was issued. There was nothing definitive that the Tribunal could find around this. In the absence of any information which could lead to a firm finding that the absence of a stamp from the relevant authority on the photograph negated its authenticity, the Tribunal finds that the penal certificate submitted by the applicant, and obtained on his behalf by his brother in Iran, could be a bogus document.
At the outset of the review hearing the Tribunal went into detail about the respective issues in the review, namely whether the grounds for cancellation of the applicant’s visa existed, and whether or not the applicant’s visa should be cancelled. The Tribunal noted that the applicant had made a Protection visa application on 24 April 2014, soon after arriving in Australia. The Tribunal noted that the applicant completed the application for protection and that his claims for protection were annexed to the application in a comprehensive statutory declaration. The Tribunal noted that the applicant was subject to an extensive interview by a Departmental delegate with regard to his claims for protection. The Tribunal noted that the delegate found the applicant’s claims to be credible and the applicant to be generally credible apart from some minor inconsistencies in his evidence, which the delegate put down to nerves and the stress of the interview process. The delegate determined that the applicant was owed protection obligations in a detailed decision made on 12 May 2015.
The Tribunal noted that the evidence before it indicated that from the time of his arrival in Australia and from his application for protection to date the applicant has put his skill set as [an Occupation 1] to good use, opening up [business] in [Suburb 1]. The Tribunal noted that the applicant had recently opened a second [business] in [Suburb 2]. The Tribunal noted that since the grant of protection in 2015, up until the notification of the prospective cancellation of his visa with the issue of the NOICC, the applicant had been working productively, employing a number of Australian citizens and permanent residents, and had been in a long-term relationship with an Australian citizen of Iranian descent. The applicant’s partner is of the Baha’i faith.
The Tribunal also noted that it had been furnished with a comprehensive psychologist’s report from [Ms C] dated 16 November 2020, which will be referred to in more detail in this decision record. The Tribunal noted that the report indicated that the applicant was suffering with post-traumatic stress disorder, depression, and anxiety. He was also prone to panic attacks. It was apparent to the Tribunal by the applicant’s demeanour and body language at the review hearing that he was extremely stressed, anxious and teary at the commencement of the review hearing. The Tribunal advised the applicant that if he needed a break at any stage of the proceedings that he could ask for one and this would be accommodated. The Tribunal did its best to put the applicant at ease.
The Tribunal also made reference to the respective outcomes of the review.
The applicant provided his personal details and date of birth. The Tribunal noted that the applicant had travelled to [two specified countries] prior to coming to Australia. The Tribunal noted that the country information before it indicated that it was difficult for Iranians to secure visas to a number of countries. The Tribunal asked the applicant about the purpose of his travel to [these two countries]. The applicant stated that he visited these countries in his capacity as [an Occupation 1]. The Tribunal noted that the applicant had also visited [Country 1] for the purpose of a rendezvous with his mother. The applicant confirmed that this was about three to four years ago. The applicant stated that he could not return to Iran because of his adverse profile and his fear of persecution in that country. The applicant stated that it was easy for Iranians to obtain a visitor visa to [Country 1], and that [Country 1] was a midpoint between Iran and Australia enabling the applicant to catch up with his mother in that country safely.

The Tribunal noted that the applicant’s visa had been cancelled on the basis of the provenance of the penal certificate that he had provided with his Protection visa application. The Tribunal asked the applicant about the obtainment of this document. The applicant stated that when he was preparing his Protection visa application, his then migration agent told him that it was in his best interests to collate any evidence that he could to corroborate his claims for protection. A suggestion was made that it would be useful for the applicant to obtain a copy of his penal certificate if possible. The applicant stated that because he did not hold a validly issued Iranian passport in his name that he could not engage the assistance of the Iranian Embassy in Canberra to obtain a penal certificate on his behalf. The applicant decided to contact his family in Iran to see whether they could assist. The applicant’s brother advised the applicant that if he provided two photographs that he would ascertain whether he could obtain a penal certificate on the applicant’s behalf. An application form was faxed to the applicant by his brother. The penal certificate was provided to the applicant in due course by his brother and submitted to the Department in support of his claims for protection. The applicant stated that the references in that document to periods of incarceration in Iran were correct. The applicant reiterated that all of his claims for protection submitted to the Department were true and correct.
The Tribunal noted that in reviewing the material before it that there were a number of pieces of evidence that the applicant had submitted to the delegate to support his claims for protection, aside from the penal certificate. The applicant was asked about this evidence. The applicant stated that he provided newspaper clippings to the Department from Iranian newspapers pertaining to his adverse profile in that country, these articles were critical of the applicant’s anti-Islamic activities as [an Occupation 1]. The applicant stated that he provided photographs from newspapers and from social media sources pertaining to his activities in Iran. The applicant provided [a video] of him appearing on [television] in Iran, where people accused of anti-Islamic activity were filmed and publicly chastised. The applicant also provided a video of his arrest, at the time he was accused of being involved in an extramarital affair with one of his clients. The applicant stated that he also provided excerpts from magazines, evidence of shared [entries] on [social media platforms], and stated that this evidence collectively supported his claims for protection even in the absence of the penal certificate that had been impugned by the Department.
The Tribunal asked the applicant to provide evidence around the periods of incarceration in Iran. The applicant stated that in 2011 he was at the home of the client named [Ms B], and that the police attended the premises. The applicant advised that he was accused of being involved in an extramarital affair with [Ms B]. The applicant stated that he tried to flee from the police but was caught after an ensuing chase. The applicant stated that he spent [number] days in [Prison 1] in Tehran before being transferred to another jail. The applicant stated that he spent a further [number] days incarcerated in [Prison 2]. The applicant stated that during the period of his incarceration he was subject to both cruel and inhuman treatment. The applicant stated at one point he was handcuffed to another prisoner convicted of murder. The applicant stated on another occasion he was taken to a room and handcuffed and his face was covered. The applicant stated that he was kicked and beaten. The applicant stated that he was beaten around the head and the applicant pointed out scars as a result of this beating on his head. The applicant stated that he was held by the legs and pushed onto a table. The applicant stated that he could feel blood running down his face. The applicant stated that a person in the room got hold of his hands and another person held his legs and he was subjected to a number of sexual assaults. The applicant stated that he believed that he was sexually assaulted by up to three people in the first eight to nine days that he was in prison. During the recitation of this evidence the applicant was teary, trembling, anxious and tense. The applicant asked for a break in the hearing because of the anxiety this evidence provoked, this request was duly consented to.
The applicant stated that he could not believe what had happened to him in Iran. The applicant stated that as a consequence of the abuse and sexual assaults that he experienced in Iran that he suffered with ongoing anxiety, shame, anger, and now had to live with panic attacks. The applicant stated that he cannot trust people and at times hates himself. The Tribunal asked the applicant whether his engagement with a psychologist had assisted. The applicant stated that he had derived some support from the psychologist. The applicant advised that he had told the case officer of his adverse experiences in Iran. The applicant stated that at the time that he was interviewed and at the time of putting his Protection visa application together his English was very poor and that a lot of the application was put together with the assistance of Google translate. The applicant stated that in order to counter his mental health issues he had thrown himself into what he could do best, which was to work as [an Occupation 1], and that he had started the business which had in time become successful. The applicant stated that he came from an artistic family and hence his interest in [Occupation 1]. The applicant stated that he had worked very hard for four years establishing his business in [Suburb 1] and that he had over a thousand regular customers in that business. The applicant stated that his current psychologist had helped him a lot. The applicant stated that his life would be meaningless if he had to go back to Iran where he would face persecution, incarceration and torture. The applicant stated that he had never been able to discuss the sexual assaults that he was subjected to whilst he was imprisoned in Iran with his current partner until after his second session with his psychologist. The applicant stated that he was then able to open up freely to his partner and that she had been very supportive of him, with the applicant stating that he expected that she would end the relationship as a consequence of the revelations; she did not.
The Tribunal noted that the applicant had provided significant evidence in advance of the hearing about his present circumstances. The Tribunal noted that the applicant had opened a second [Occupation 1 business] in [Suburb 2]. The Tribunal noted that the applicant had purchased an apartment in [a location] off the plan. The applicant advised the Tribunal that he was looking at opening a third business in [Suburb 3] and that he had recently settled on the apartment and moved into the apartment two weeks ago. The applicant also stated that he had purchased a house in [Town 1] as an investment. The applicant stated that he currently had 10 employees working in his business who are Australian citizens and permanent residents and that he had sponsored two [Occupation 1s] from [another country] on skilled visas. The applicant stated that he had eight employees working in the [Suburb 1] business and two in the [Suburb 2] business. The applicant stated that he had a high volume of loyal clients and positive reviews online.
The applicant stated that he had been involved in a number of community events including [Event 1] raising money for [a charity]. The applicant had been involved in this event at [School 1] on two occasions most recently in 2021. The applicant stated that due to the success of his business in Australia that he was making a significant contribution to the tax base. The applicant stated that he wanted to grow the business potentially as a franchise business, but the cancellation of his visa had halted these plans and he was scared to expand beyond his current businesses in [Suburb 1] and [Suburb 2].
The applicant advised that he was in a relationship with an Australian citizen of Iranian descent, a relationship of three years’ duration, and that he and his partner intended on getting married. He advised that his partner was of the Baha’i religion, members of which faced significant persecution in Iran. The applicant stated that he had engaged in the last 12 months in the Baha’i religion which he found was a peaceful and inclusive religion. The applicant also advised that prior to the cancellation of his visa he had been entering [specified] competitions [of Sport 1] for which he had achieved some success, but since the cancellation of his visa he had not been [able to train] and had become socially isolated. The applicant stated that prior to the cancellation of his visa he was becoming more outgoing and chatty with customers, but he is now much more reserved and anxious. The applicant stated that his psychologist had provided him with a range of coping strategies for dealing with his anxiety in the workplace. The applicant stated that the cancellation of his visa had a serious impact on his life. At the time of the cancellation of the visa he weighed [weight], he was now [weight]. The applicant stated that his social life had stopped, that he did not go to his partner’s family’s place for visits and that he was in a constant state of fear and anxiety. The applicant stated that he was crying a lot and had feelings of helplessness.
THE SECTION 107 NOTICE
On the Departmental file is a copy of the NOICC dated 2 May 2019 advising the applicant that his visa may be cancelled under s.109 because it appeared he may not have complied with s.103 of the Act (a non-citizen must not give, present, produce to an officer a bogus document or cause such a document to be given, presented, produced or provided) and s.101(b) of the Act (visa applications to be correct). The NOICC indicated that the relevant overseas post had examined the penal certificate that the applicant had submitted with his application for a Protection visa and that as the applicant’s photograph had not been stamped by the relevant issuing authority it appeared to be a bogus document. The NOICC stated that as the penal certificate indicated that the applicant had been imprisoned for a total of [number] days and as it had subsequently been found to be bogus, that all of the applicant’s claims pertaining to his adverse profile in Iran fell away as a consequence, and that the applicant provided incorrect information in his Protection visa application at questions 43, 44 and 45. The applicant provided a comprehensive response to the NOICC on 15 May 2019.
As discussed with the applicant at the review hearing on 11 March 2021, the applicant advised that when he was preparing his application for protection he was advised to obtain as much evidence corroborative of his claims that he could. The applicant advised that he could not obtain a penal certificate through the Iranian Embassy in Canberra due to the fact that he did not possess an Iranian passport which was required to be produced in order for them to assist. In order to comply with his migration agent’s request, the applicant contacted his brother in Iran to ascertain whether he would be able to assist him in obtaining the penal certificate. His brother advised him to provide two photographs which the applicant provided and in due course the penal certificate was sent to him. The applicant maintains that the information contained in the document is true and correct pertaining to his periods of imprisonment and that until the Departmental integrity checks he was unaware about the provenance of the document and the anomalies in the document’s features, as it had been provided to him by a third party. The applicant advised that despite the adverse findings that had been made about the penal certificate by the Department that this did not negate the information that he had provided in support of his Protection visa application at questions 43, 44 and 45. The applicant advised that he had been imprisoned for [number] days in two prisons in Iran, that he had been the subject of ill treatment, sexual assaults and torture whilst imprisoned and that because of his adverse profile in Iran as a consequence of his activities as [an Occupation 1] that he faced a real chance of persecution if he returned to Iran. The applicant reiterated that despite the findings that had been made about the penal certificate there was considerable additional evidence provided to the Department to support his claims and a consistent account had been provided to the delegate who had determined at primary stage that the applicant was owed protection obligations.
No issue has been raised in this review by the applicant as to the validity of the NOICC. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.
As noted the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
As set out above, the NOICC advised the applicant had provided a penal certificate in support of his claims for protection. The Department, some 18 months after the grant of the Protection visa, had the penal certificate looked at by the overseas post who determined that based on its features, namely the fact that the authorising authority’s stamp was not on the photograph of the applicant, that it appeared to be a bogus document. As the penal certificate provided supported the applicant’s claims of being incarcerated for a period of [number] days in Iran, the delegate found that the applicant’s responses to questions 43, 44 and 45 were incorrect.
In his response to the NOICC the applicant with regard to the purported provision of a bogus document stated through his then representative that:
In the NOICC letter you have asked [the applicant] to comment on the authenticity of the penal clearance certificate. As set out in [the applicant’s] statutory declaration, the penal clearance certificate was obtained via a third party, his brother, as he had been requested by his then migration agent to provide supporting documentation. We attach a copy of the email in which his brother sent the certificate to [the applicant] which evidences that it was obtained from a third party.
The document was produced in Iran at a time when [the applicant] was in Australia and it was provided to him by a third party. Therefore, he had no involvement in the production of the document. He then submitted the document provided to him to his agent as he had been requested to do, and this was provided to the Department in support of his application.
[The applicant] maintains that he was jailed on two occasions in Iran, as supported by the evidence above, and that the information set out in the penal certificate in relation to those offences is correct.
With regard to the second component of the NOICC pertaining to the purported provision of incorrect information, the applicant through his then representative stated that:
As discussed above, there is significant corroborative evidence supporting [the applicant’s] claim to have been arrested and imprisoned in Iran due to his activities as [an Occupation 1]. He maintains that the offences listed in the penal certificate are correct and the responses provided on the application form are accurate.
If the case officer was to find that the police clearance certificate is a bogus document, this does not lead to a conclusive finding that the arrests did not occur. It is respectfully submitted that the remainder of [the applicant’s] evidence cannot be dismissed solely on the basis of the suggestion that the penal certificate is bogus. When considered cumulatively, the evidence supports the truth of [the applicant’s] core claims and that his fear of persecution is both well founded and genuine, or in the alternative that there is a real risk that he would suffer from significant harm if returned to Iran.
The Tribunal has had regard to the Migration and Refugee Division of the Administrative Appeals Tribunal Guidelines of the Assessment of Credibility from July 2015 which provide guidance around the assessment of documents. The guideline notes that:
The use of false documents does not necessarily mean that an applicant’s claims are untrue.
If the tribunal is of the view that a submitted document is not genuine, and the document is material to an applicant’s claims, the tribunal should give the applicant an opportunity to address the tribunal’s concerns.
For protection visa matters, except in certain circumstances the tribunal must refuse to grant a protection visa if the applicant has provided a bogus document as evidence of the applicant’s identity, nationality or citizenship, or has destroyed documentary evidence of their identity, nationality or citizenship.
The tribunal does not have to refuse the visa if it is satisfied that the applicant has a reasonable explanation for providing the bogus document or destroying the documentary evidence and the applicant either provides, or has taken reasonable steps to provide, documentary evidence of their identity, nationality or citizenship.
The assessment of credibility is an important and difficult aspect of the tribunal decision-making process. The tribunal must maintain an open mind when assessing individual cases and when deciding whether an applicant’s evidence is to be believed and how much weight is to be given to the evidence before the tribunal.
The evidence pertaining to the provision of the penal certificate is that it was not procured by the applicant, it was procured by a third party, his brother on his behalf. The applicant has maintained before the delegate in response to the NOICC that the information contained in that document pertaining to his detention in Iran is true and the applicant has strongly maintained this position at merits review. As has been noted the Tribunal when reviewing this application noted that the grounds on which the penal certificate was impugned was that the placement of the stamp from the issuing authority was not on the photograph of the applicant as was, according to the overseas post, normal practice. In order to look more closely at this anomaly, the Tribunal engaged in some country research in order to ascertain whether such an anomaly was prevalent in documents from Iran and was not able to find anything definitive about anomalies in officially issued documents in Iran. The Tribunal in pursuing this line of enquiry, as has been noted, holds the view that the cancellation of a Protection visa is something with profound consequences for the visa holder and that if it is going to be pursued by the Department it must be done so on a strong evidentiary basis and a careful assessment of all of the factors that led to the grant of the Protection visa in the first place.
In the absence of any evidence that refutes that the anomaly in the penal certificate can be explained the Tribunal finds on the evidence before it that the applicant has provided a bogus document in support of his claims for protection, albeit one that was acquired through a third party. The Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.
However, with regards to the second ground for cancellation of the applicant’s visa identified in the s.107 notice, namely the provision of incorrect information in non-compliance with s.101, the Tribunal finds that this ground has not been made out.

The applicant has given a consistent account of his claims for protection and the fear that he holds if he had to return to Iran to both the Departmental delegate, who approved his application for protection at primary stage, and to the Tribunal at review.
This finding is quantified by a range of evidence before the Tribunal. Firstly, the applicant presented to the Tribunal at the review hearing before it as a witness of truth and as a credible witness. His evidence was not embellished, it was detailed and the applicant was clearly profoundly affected by the recitation of his evidence pertaining to his incarceration and ill treatment at the hands of the Iranian authorities during his [number] days in detention. The applicant was teary and began to have difficulty breathing and the hearing had to be stopped to allow the applicant to gather his composure. The applicant’s recitation of this evidence closely approximated the contemporaneous evidence that he provided about his mental state to his friend in Australia, a general practitioner [Dr A], at the time he applied for protection. It also correlates to the findings made by the applicant’s psychologist in the comprehensive report she provided to the Tribunal in support of this review which indicates that as a consequence of the applicant’s incarceration, physical and sexual abuse and treatment at the hands of the state in Iran he suffers with post-traumatic stress disorder, panic attacks, anxiety and depression. The applicant has also provided evidence corroborative of his claims apart from the penal certificate such as [videos], [social media entries] and evidence of the interrogation of the applicant for his perceived involvement in anti-Islamic activity which was broadcast on national television in Iran [and] this footage was provided to the Departmental delegate and viewed by the delegate.
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, with respect to s.103 of the Act, the provision of a bogus document, 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.
The correct information
The applicant maintains that he did not provide incorrect information to the Department in support of his claims for protection and that the information that he provided in support of his claims was true and correct.
The delegate who proceeded to cancel the applicant’s visa concluded that as the penal certificate had been impugned by the overseas post, because it did not contain the usual identifying features of such a certificate, that it followed that the applicant’s claims for protection should also be impugned. The reason for this was that the applicant claimed that he was imprisoned in Iran over two periods for a total of [number] days. The penal certificate made reference to these periods of imprisonment. The delegate drew a conclusion that if the penal certificate was bogus, it followed that his claims for protection, which included periods of incarceration, were incorrect.
The applicant’s representative in response to the NOICC provided a submission addressing these findings made by the Departmental delegate. The Tribunal at review finds these submissions persuasive in their content. The submission noted the following:
In the NOICC letter it is stated that you reasonably suspect the Penal Certificate provided with [the applicant’s] protection visa application is bogus and therefore that he was not arrested and jailed as claimed. This subsequently has led you to suggest that he provided incorrect information in his responses to question 43, 44 and 45 in his application form.
It is respectfully submitted that the finding that the penal certificate is bogus does not necessarily lead to the conclusion that the claimed arrest, imprisonment and mistreatment did not occur. [The applicant] maintains that these events occurred and that he has a genuine, and well- founded, fear of serious or significant harm should his visa be cancelled and he be required to return to Iran. He has not provided any incorrect information on the application form.
While we did not represent [the applicant] in his protection visa application, we understand that there was significant other supporting documentation in relation to his claims, some of which continue to be independently verifiable. We have set this out below.
Newspaper articles about the arrest of [Mr D]
We understand that [the applicant] has consistently claimed to have been arrested on one of the occasions with his close friend [Mr D], an Iranian [Occupation 2] with whom [the applicant] worked closely. There is a publicly available article in relation to [the applicant’s] arrest which remains available (in Persian) online.
We also set out in a copy of a newspaper article and translation about [Mr D’s] arrest in Iran.
These articles refer to the arrest of [Mr D], together with his "group". As [an Occupation 1] working with [Mr D] in connection with these [projects], [the applicant] was also arrested. We have attached evidence of [the applicant’s] working relationship with [Mr D] including:
[Social media entries] of their work together and a photograph of them together in 2012.
A photograph of them together, compared with the newspaper photograph of [Mr D’s] arrest showing that this was the same person.
It is respectfully submitted that it is a logical conclusion that [the applicant] would be considered to be one of the [group] of criminals [who] undertook unethical activities in various [underground arenas] and therefore these articles are strongly supportive of the truth of his claimed arrest.
Video of [the applicant’s] arrest
At the time of lodging his protection visa application there was video [of the applicant’s] arrest, as it was reported on Iranian [television]. This was available at [URL].
Unfortunately, these videos are no longer viewable online. However, we assume that the case officer had viewed the videos and accepted them as genuine at the time given that [the applicant] was granted the visa. We ask you to refer to the original case officer in relation to this.
In addition, we have attached the following evidence which is all that [the applicant] has available now due to the passage of time:
Transcript of the video which was submitted with the protection visa application
Screenshot from the video showing [the applicant’s] arrest
Statutory declaration from [Dr A]
As a result of his treatment in lran, [the applicant] remained deeply traumatised and suffered from mental health issues at the time of his arrival in Australia and for a number of years afterwards. As set out in his statutory declaration [the applicant] was referred by his doctor to see a counsellor. While we have attempted to obtain copies of the counsellor's notes from this time unfortunately the practice has subsequently been sold and the records are not held by the new owners. However, we have attached evidence of his consultation with his GP in relation to his anxiety and depression in February 2015.
During this time [the applicant] had spoken with his close friend, [Dr A] who is a medical practitioner, about the events in Iran. [Dr A] has provided a statutory declaration which states:
As it is a number of years ago, I do not know the exact dates but in around 2015- 16 he told me that he was persecuted back in Iran due to his work and creative background. [The applicant] mentioned that he used to be [an Occupation 1] and worked for a number of [agencies]. I was told by him that the Iranian government found out about this as his popularity increased, especially when he collaborated with a famous [Occupation 2]. Videos of him and his work were uploaded to youtube which lead to government official’s persecution.
.. . he confided in me and revealed his stories, I have no reason to doubt him, and I am aware of many stories like his as it is quite common due to the country's regime. Moreover, [the applicant] had already been granted his protection visa and I had never been involved in his legal proceedings for him to lie to me.
l understand that the Department of Home Affairs is now concerned about whether [the applicant]'s protection claims are in fact true. I strongly believe, on the basis of the discussions which he had with me at a time when he had no reason to lie that he was subject to persecution in Iran and genuinely fears returning there should his visa be cancelled.
It is respectfully submitted that [the applicant’s] confiding in [Dr A] after the grant of his protection visa is strong evidence of the genuineness of his claims. At this time there was no reason for him to lie to [Dr A] and he has never sought to use this information for the purposes of his protection visa application so this was clearly not the purpose of those interactions.
Evidence of [the applicant’s] work in Iran
[The applicant’s] claims are based on his work in Iran as [an Occupation 1] and [Occupation 3]. We attach the following evidence which shows his work in Iran:
·[Social media entries] in relation to his work
·Evidence of his work as [an Occupation 1]
·Photographs of his work
As is evident in many of the posts and photographs, [the applicant] was working with [women] directly and those [women] did not conform to the Islamic dress code. For example, they were not wearing the hijab. It is this which brought [the applicant] to the attention of the Iranian authorities and these contemporaneous documents evidence the truth of his breaches of the moral standards strictly imposed by the Iranian authorities.
Evidence of [the applicant’s] profession
[The applicant] has continued to work in his profession, which again supports his assertions in relation to the persecution suffered in Iran as a result of that profession and his desire to continue to undertake this work. As evidence of this we have attached:
Evidence of his work with [a named person]
Evidence of the ownership of his own [business], in [Suburb 1], Sydney
Newspaper article in relation to [this business]
It is respectfully submitted that above evidence and attached documents comprehensively supports [the applicant’s] claims about his imprisonment in Iran and the truth of the information provided in his protection visa application. It is respectfully submitted that there has not been any breach of s101 of the Migration Act 1958.
The Tribunal finds that it was unsafe for the delegate to conclude that the applicant had provided incorrect information pertaining to his claims for protection on the basis of the overseas post making adverse findings about the provenance of the penal certificate. The applicant has provided evidence that he was asked by his then representative to support his claims for protection. The applicant did his best to obtain a penal certificate, and one was obtained through a third party, his brother, and the applicant has advised that he cannot provide conclusive evidence about how this was obtained or comment on its provenance.
As noted, the AAT direction from 2015 pertaining to the assessment of credibility notes that in assessing protection claims “the use of false documents does not necessarily mean that an applicant’s claims are untrue. If the tribunal is of the view that a submitted document is not genuine, and the document is material to an applicant’s claims, the tribunal should give the applicant an opportunity to address the tribunal’s concerns.”
The applicant provided significant corroborative evidence to support his claims for protection and the Tribunal has made extensive reference to this evidence. The applicant had also spoken with his friend [Dr A] a general practitioner during 2015–2016 about his experiences of persecution in Iran, with [Dr A] concluding that the conversations were true and frank and that there would be no basis in the context of these conversations for the applicant to lie.
The Tribunal, during the course of this review, has had regard to the country information available to the delegate that found the applicant was owed protection obligations. The Tribunal has been furnished with a substantial range of country information at review by the applicant’s representative. The country information indicates that any person in Iran who is either deemed to be or perceived to be anti-Islamic through their actions or activities faces persecution in Iran. The applicant through his profession as [an Occupation 1] and through his wide social media profile would, in the view of the Tribunal, have come to the adverse attention of the authorities in Iran.
The veracity of the applicant’s claims for protection are further corroborated in the view of the Tribunal by the report of [Ms C], a clinical and counselling psychologist who conducted a comprehensive assessment of the applicant’s mental health and provides ongoing counselling to the applicant. In her report of 16 November 2020 [Ms C] has concluded that the applicant suffers from a range of mental health impacts which are directly attributable to his experiences in Iran prior to making an application for protection. [Ms C] finds that the applicant suffers with post-traumatic stress disorder as a consequence of him being imprisoned and raped in Iran. [Ms C] concludes that the account of his imprisonment and two instances of sexual assault whilst in prison caused deleterious psychological impacts to the applicant.
The Tribunal finds that the additional corroborative evidence provided by the applicant in support of his claims for protection, the rigorous Departmental interview where the applicant’s claims were thoroughly tested and found to be credible, the medical evidence submitted by the applicant and the applicant’s testimony at the review hearing, when considered cumulatively lead the Tribunal to find as follows. That the applicant’s core claims were truthful and that the applicant’s fear of persecution is both well-founded and genuine. In addition to this in the alternative that there is a real risk that the applicant would suffer from significant harm if he were returned to Iran.
The country information is strongly corroborative of this with evidence that the Iranian authorities harass, detain, abuse, torture and utilise vague criminal law provisions to prosecute, flog, harass, detain, abuse and torture to punish publishers, journalists, editors, bloggers and users of social media, particularly if deemed to be engaged in anything critical of the government or in any way offensive to public morality (see Country Policy and Information Note Iran: Journalists and Internet based media United Kingdom Home Office October 2016).
The Tribunal places significant weight on this evidence in favour of not cancelling the applicant’s Protection visa.
The content of the genuine document (if any)
As has been discussed extensively in this decision the applicant was asked by his previous representative to collate any evidence that he could to support his claims for protection. The applicant attempted to obtain a penal certificate from the Iranian authorities from within Australia but, due to the fact that he did not have a passport, he was not able to do this. The applicant then approached his brother in Iran who advised the applicant that if he was to forward two photographs that he would attempt to obtain one on his behalf. The applicant submitted evidence that this was in fact obtained by a third party in Iran and provided evidence that he received the penal certificate via an e-mail sent to him by his brother.
As noted, this document was the subject of an integrity check by the overseas post and as the photograph of the applicant was not stamped, and the stamp was under the photograph, the provenance of the document was called into question.
The Tribunal has found that despite the provenance of this document being called into question that the applicant’s claims for protection were genuine and in the view of the Tribunal were able to be corroborated in the evidence submitted with his application and the testimony of the applicant to the Department and Tribunal at review.
The applicant has consistently maintained that he was imprisoned in Iran on two occasions for a total of [number] days and despite the provenance of the penal certificate being called into question, the applicant contends that the information that is contained in the penal certificate is correct. This is supported by the additional evidence provided along with the country information.
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 Tribunal finds that the penal certificate did not form the basis of the delegate’s decision. The applicant provided the delegate with a comprehensive statutory declaration in support of his claims. The applicant was the subject of an extensive interview where his claims were tested and found to be credible. The applicant also submitted a range of evidence that supported his profile in Iran as [an Occupation 1] and corroborated his work in Iran, which was captured on [social media platform] and other social media sites. The applicant [provided] videos including a video of him being publicly shamed for engaging in anti-Islamic activity and this was submitted and viewed by the Departmental delegate who found that the applicant was owed protection obligations at the time of assessment of his primary application on the basis that he had a well-founded fear of persecution in Iran both at the time that the decision was made and in the foreseeable future.
The evidence submitted with the Protection visa application provided clear and unambiguous evidence that the applicant was involved in activities that were in clear breach of the Islamic dress code enforced by the authorities in Iran and in breach of Iranian and Islamic law strictly enforced by the Iranian state.
The circumstances in which the non-compliance occurred
The evidence before the Tribunal indicates that the applicant arrived in Australia [in] February 2014 and that he made an application for protection within a relatively short period of time after his arrival on 24 April 2014. The applicant had fled Iran after being the subject of arrest and detention for being involved in what the Iranian authorities deemed anti-Islamic activities. The evidence that has since been collated from mental health experts indicates that at the time of the applicant’s arrival in Australia he would have been suffering with anxiety and post-traumatic stress disorder as a result of his adverse experiences in Iran which included being beaten and sexually assaulted whilst in the custody of the state. There is evidence before the Tribunal that the applicant mentioned his mental health issues to a friend in Australia who was a trained GP and who has provided evidence to the Tribunal corroborating these conversations. The applicant also provided evidence of seeking assistance from his GP in 2015 for anxiety and depression. The applicant’s current clinical psychologist [Ms C] has advised that the applicant suffers a range of psychological symptoms as a consequence of his experiences in Iran and as a consequence of the cancellation of his Protection visa. These symptoms include depression, anxiety, PTSD and panic attacks.
At the time of applying for a Protection visa the applicant was living with substantial trauma and fear of being returned to Iran. The applicant wanted to ensure that his Protection visa application was as strong as it could possibly be. The applicant’s then representative advised the applicant that it would be in his interests to collate evidence corroborative of his claims for protection and to this end the applicant sought a penal certificate, which as has been discussed could not be secured through Iranian consular officials within Australia and which ended up being obtained through a third person, his brother in Iran. The applicant was e-mailed the certificate from his brother in Iran. The certificate on its face confirmed the applicant’s details and confirmed the applicant’s periods of imprisonment and the applicant submitted it as requested by his agent.
The present circumstances of the visa holder

The applicant is in a long-term relationship with an Australian citizen. The applicant and his partner have advised that they intend to marry. The applicant’s partner is of Iranian descent and as noted is of the Baha’i faith. Country information before the Tribunal indicates that persons of the Baha’i faith face persecution in Iran and that the religion is outlawed in Iran. The applicant has given evidence that since he has been with his partner he has become interested in the Baha’i religion.
The applicant has provided evidence to the Tribunal that he has opened a successful [Occupation 1] business in [Suburb 1] and that he employs a number of Australian citizens and Australian permanent residents in the business. The applicant has also opened a second business in [Suburb 2].
The applicant has purchased an apartment in Sydney which he has recently moved into. The applicant has also purchased an investment property in [Town 1].
Prior to the cancellation of his visa the applicant had engaged in [Sport 1] to address his mental health issues and had achieved some success in amateur [Sport 1] competitions, but the applicant has not been involved in this sport since his visa was cancelled due to his poor mental state.
The applicant has contributed to community fundraising events such as [Event 1] raising money for [a charity]. The applicant has [participated] in this fundraising initiative, including students at [School 1] for the past two years.
The applicant has formulated a number of friendships in Australia and has provided a number of references from both friends and associates who attest to the applicant’s good character and work ethic.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no other evidence of any other non-compliance or failure by the applicant to meet his obligations as set out in Subdivision C of Division 3 of Part 2 of the Act. This weighs in favour of non-cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal that there are any other instances of non-compliance by the applicant known to the Minister. In his response to the s.107 notice the applicant stated that there are no other instances of non-compliance and he has otherwise fully complied with his visa conditions.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant made his visa application in April 2014 and almost seven years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of the applicant breaching the law. In response to the NOICC the applicant’s then representative provided an Australian Police Clearance which indicated the applicant had not been convicted of any offences since he has been in Australia.
Any contribution made by the holder to the community
As has been advised the applicant through his business has participated in [Event 1] providing services to this fundraising event for [a charity].
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
If the applicant’s visa is cancelled the applicant will become an unlawful non-citizen and he will be liable to be detained.
Another consequence of the cancellation of the applicant’s visa is that the applicant is in a long-term relationship with an Australian citizen and the evidence indicates that the applicant and his partner intend to marry. The evidence further indicates that as a member of the Baha’i faith the applicant’s partner could not relocate to Iran due to the risk of persecution she would face being a proponent of the Baha’i religion.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
The Tribunal finds on the basis of the evidence before it that the applicant has an adverse profile in Iran as a consequence of his profession as [an Occupation 1] and him being accused by the authorities as having engaged in an extramarital affair with a customer of his business, [Ms B]. The applicant has provided a significant amount of evidence which indicates that he had an active social media profile in Iran and that his profile and associations with other [occupations] brought him to the adverse attention of the authorities in Iran. The applicant has also provided evidence that as a consequence of the profile attributed to him in Iran, that he spent two periods in prison, during which time he was subjected to torture and other cruel and degrading treatment, including being sexually assaulted multiple times. Medical evidence from his current treating Ms Clong with evidence from general practitioners with whom the applicant had engaged since he arrived in Australia are corroborative of this component of the applicant’s claims. The medical evidence that has been provided indicates that the applicant, as a consequence of his period of incarceration, and as consequence of him being raped have led to the applicant suffering a range of adverse mental health symptoms. These include depression, PTSD, anxiety and panic attacks.
A wide range of country information has been provided to the Tribunal at review which corroborates the applicant’s claims and his well-founded fear of persecution at the hands of the state if he was returned to Iran.
The United States Department of State Report Iran for 2016 published in March 2017 indicates the following:
Arbitrary Arrest: Authorities commonly used arbitrary arrests to impede alleged antiregime activities. Plainclothes officers arrived unannounced at homes or offices, arrested persons, conducted raids, and confiscated private documents, passports, computers, electronic media, and other personal items without warrants or assurances of due process. Individuals often remained in detention facilities for long periods without charges or trials, and authorities sometimes prevented them from informing others of their whereabouts for several days. Authorities often denied detainees’ access to legal counsel during this period and imposed travel bans on individuals released on bail or pending trial.
…Authorities continue to block online messaging tools such as Facebook and Twitter. The IRGC Center for Combating Organized Crime website reported on August 23 that IRGC forces had summoned, detained, and warned some 450 administrators of social media groups over “immoral” content.
…Eight online models were arrested, and an unannounced number of online Instagram, Telegram, and Facebook pages were closed in May for “immoral content” after images were posted that did not adhere to government-sanctioned dress requirements. The Tehran Prosecutor General announced the arrests were part of operations “Spider I” and “Spider II,” which sought to identify illicit modeling activity online.
Also provided was a report from Radio Free Europe/Radio Liberty dated 5 December 2016 which stated that:
An Iranian court has sentenced 12 people working in the fashion industry to jail for posting images on the Internet, according to a report in local media.
The eight men and four women were given sentences ranging from five months to six years in jail by a court in the southern city of Shiraz on December 5, the semi-official ILNA news agency reported.
Mahmoud Taravat, a lawyer for all 12, told ILNA that they were also banned from working in the fashion industry and travelling abroad for two years after serving their sentences.
Taravat said the 12 were convicted on charges including spreading prostitution and promoting corruption by publishing obscene images online and by spreading a "Western-style culture of nudity."
Iran's judiciary launched a crackdown on "un-Islamic" behaviour by fashion models earlier this year.
In October, authorities said they had detained 11 members of a modeling network.
The semi-official Tasnim news agency said the network was involved in producing and publishing pornographic pictures and spreading "depravity" in society.
The Tribunal has had regard to the decision of the delegate which recommends the applicant was owed protection obligations and that the applicant had a well-founded fear of facing serious harm in Iran. The delegate in reaching this conclusion noted the following:
In considering whether the applicant has a well-founded fear of facing serious harm upon return to Iran, I have taken into consideration the following factors:
As stated above. I have accepted that the applicant was previously arrested and charged in Iran and that one of his arrests was featured on an Iranian television. I have given the applicant's experience of past arrest significant weight as I consider that this indicates that the applicant has an existing profile with the Iranian authorities.
I have also accepted the applicant's claims regarding his profession as [an Occupation 1], [Occupation 2] and [Occupation 3]. After considering the applicant's account at interview. I accept that this work is extremely important to the applicant and that he uses his profession as a creative outlet which reflects his genuinely held views on social, political and religious issues. The numerous pieces of evidence submitted also indicate that the applicant has made his work available publicly both through social media and in catalogues that are [available] in Iran.
The delegate who found the applicant was owed protection obligations clearly accepted the applicant’s evidence pertaining to his work as [an Occupation 1] in Iran and the adverse profile attributed to the applicant because of his work, his profile and his beliefs. The delegate accepted that the applicant had been arrested in Iran and notes that “I have accepted that the applicant was previously arrested and charged in Iran and that one of his arrests was featured on Iranian television.” This finding clearly indicates that the delegate was not solely reliant on the penal certificate to corroborate the applicant’s arrest and that the video provided by the applicant that the delegate viewed was another source of corroboration.
The delegate further concluded that:
The applicant's claims relate to his profession. I have considered whether the applicant could return to Iran and work in a different profession. In considering this, I note that this would not quash his existing profile with the Iranian authorities or his criminal history. In addition, I have considered the applicant's evident devotion to and passion for his industry. This causes me to consider that his work extends beyond a means to earn a living and is an avenue for self-expression. As such, I am satisfied that the applicant would continue to engage in this behaviour if he were to return to Iran. I am satisfied that any continued engagement in his industry and in this field would serve to elevate his profile with the Iranian authorities and increase his chance of being harmed by the Iranian authorities. After considering these factors. I cannot rule out the possibility that the applicant will be targeted by the Iranian authorities
The Tribunal finds that the applicant is committed to his career as [an Occupation 1] and this is reflected by the fact that the applicant, after the grant of permanent residence, pursued a business in the area of his expertise. The Tribunal agrees with the findings of the delegate who found the applicant was owed protection obligations and that “the applicant’s work extends beyond a means to earn a living and is an avenue of self- expression.”
EXERCISE OF DISCRETION
The evidence before the Tribunal is that the applicant provided multiple pieces of evidence to support his claims for protection. This included his sworn statutory declaration, evidence of his social media profile and access to a number of [videos]. The applicant was interviewed by a delegate with regard to his claims, and, was considered to have given a largely credible account of his claims for protection.
The applicant submitted a statutory declaration in response to the NOICC. The applicant provided the Tribunal at merits review with a credible and consistent account of his experiences in Iran that led to him fleeing Iran and applying for a Protection visa in Australia.
The applicant has provided medical evidence from a general practitioner and from his treating psychologist. The medical evidence provided is corroborative of the applicant’s claims of being detained in Iran on two separate occasions and of him being the subject of abuse, torture and sexual assaults whilst detained. The psychologist’s report indicates that the sexual assaults and ill treatment that the applicant experienced in Iran have led to PTSD and adverse physical, emotional and psychological impacts. The report indicates that the applicant had, after the grant of permanent residence, managed to address these symptoms through engaging in his business and in [Sport 1], but since the cancellation of his visa his adverse symptoms have come to the fore and have been extremely debilitating.
The evidence indicates that the applicant is in a longstanding relationship with an Australian citizen and that the applicant and his partner intend to marry and have a family.

100. The evidence indicates that the applicant’s partner is of Iranian descent and that she is Baha’i and the Tribunal accepts that as a consequence of her religious beliefs, beliefs that have been embraced by the applicant, she would be unable to reside in Iran without facing a real fear of persecution because of her religion.
101. The evidence before the Tribunal as has been discussed indicates that the applicant has a successful [Occupation 1] business in [Suburb 1] and that he employs a number of Australian citizens and Australian permanent residents. The applicant has also opened a second [business] in [Suburb 2].
102. The applicant has been involved in community fundraising events.
103. Having regard to all these discretionary factors both singularly and cumulatively the Tribunal considers that they strongly outweigh those matters which favour cancelling the applicant’s visa.
104. The Tribunal apportions significant weight to these factors in not cancelling the applicant’s visa.
CONCLUSIONS
105. The Tribunal has decided that there was non-compliance with s.103 of the Act 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
106. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
John Cipolla
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1608

7 April 2021

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Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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