1933638 (Refugee)

[2021] AATA 4637

1933638 (Refugee) [2021] AATA 4637 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1933638

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:28 September 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 28 September 2021 at 12:41pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect answers in visa application – identity details – possession of firearms – detention – physical assault – exemption from military service – passport renewal – return visits to Iran - mental health issues – name variations previously declared to Department – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 499
Migration Regulations 1994 (Cth), r 2.43; Schedule 2

CASES

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is [an age] year old man born in Iran.  He arrived in Australia [in] October 2010 at [Location 1], and was granted a Protection visa on 22 October 2012.

3. The delegate cancelled the visa on the basis that the applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 9 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

   Notice of intention to consider cancellation under s.107 

9. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 31 October 2018.  The notice indicates that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information in his protection visa application lodged on 12 October 2012. The notice provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect. Specifically the notice particularised the non-compliance as follows: That he provided the following incorrect answers on his Form 866 protection visa application:

   ·(Q4) He answered n/a to the question about what other names he is known by. 

   ·(Q 42-48) His responses to questions about why he is seeking protection in Australia, why he left Iran, the harm he experienced in Iran, what he fears will happen to him if he returns, who he thinks may mistreat him and why, and why the authorities cannot and will not protect him.  

10. The NOICC sets out the evidence before the Department including:

    ·Information provided by the applicant in his protection visa application made in Nauru in 2001 including information provided at interviews with departmental officers regarding that assessment, where he stated his name was [Alias A], that he was born on [DOB 1] and that he left his country, Iran, because he had no job and there were a lot of people taking drugs.  He stated that there were no other reasons why he could not return and nothing would happen to him if he returned. He denied having any political affiliations or involvement in any groups, and answered no to whether he had spent time in prison or been charged with any offence or had any contact with police or security agencies. He said he had not done military service because he couldn’t tolerate wasting his time.

    ·His Entry Interview on arrival to [Location 1] on 26 October 2010 where he stated he registered with UNHCR in 2001/2002 under the name [Alias B].

    ·His Refugee Status Assessment (RSA) and subsequent Protection visa application, specifically his RSA Statement dated 17 December 2010 and responses to questions 1, 4, 8 (relating to his name, names known by and date of birth), 42-48 (relating to reasons why he left the country and his claims for protection) of Form Part C of his protection visa application. In his RSA and Protection visa application in 2010  he claimed his date of birth was [DOB 2], declared his name as [applicant’s name] and made claims for protection on the basis of a history of problems experienced in Iran from age 6 when he was at school when he was beaten by teachers, to his [age range] when he started having trouble with police and was detained many times sometimes for 3-4 days, and his [age range] when he was exempted from military service because of mental health problems. He referred to being hospitalised following a suicide attempt.  He referred to having spent time in [Prison 1] where he was gaoled, whipped and discharged on multiple occasions. When he was [age] he had a fight with a police officer and following this left home and never returned before he left the country. He referred in his application to travelling to Indonesia when he was around [age] years old and ending up in Nauru not Australia and that during this trip he registered his name as [Alias C] or [Alias A variant]. He referred to posing for a photo with a soldier’s gun when he was [age range] and that gave rise to his decision to flee Iran because the police came to the house and discovered several Kalashnikov rounds and sporting rifle rounds and he was arrested and dragged to court. He was held in detention for a week and beaten, handcuffed and suspended from a fan and bashed.

    ·Information about travel back to Iran by the applicant [from] August 2015 to [November] 2015 and [from] March 2016 to [June] 2016, including passenger cards where he stated that he spent most time abroad in Iran and interviews with border officers, where he stated he was visiting Iran to spend time with his family. 

    ·His Iranian passport, issued in [Australia] [in] 2015 which was scanned by border officials, showing that he had entered and departed from Imam Khomeini airport in Iran on those dates and last lawfully exited Iran through Imam Khomeini airport [in] July 2010.

11. The NOICC sets out the delegate’s view that the applicant’s account of events in his 2010 Protection visa application was at times internally inconsistent and acknowledged that he stated in the application he was not confident of his memory or accuracy in time estimates, but nevertheless the delegate considered the applicant was clear about certain events he claimed occurred prior to arriving in Nauru in 2001 (such as his experiences at school and in his [age range] and the basis for his exemption from military service and the time spent at [Prison 1] and altercation he had with a police officer) and as he had raised none of this when interviewed by an officer in Nauru about why he left Iran, the delegate found that the claims made in his 2010 Protection application did not occur. It was also noted that the applicant provided to the IMR in his protection application process a document stating he was exempt from military service [in] December 2002 due to mental health issues, which would have been two months after he returned from Nauru. The delegate considered that the applicant’s voluntary travel to Iran on two occasions and decision to stay there for 3 months each time indicates he did not have a genuine fear of return to Iran as claimed in his protection visa application. It was also considered that his choice to travel to Iran and contact with the Iranian authorities to apply for a passport indicates he did not genuinely fear the Iranian authorities and grant of a passport to him indicates that he did not have an outstanding warrant for arrest. The 2015 passport indicates he last lawfully exited Iran through Imam Khomeini airport [in] July 2010 which also indicates he did not have an outstanding warrant for arrest.  

12. On this basis it was considered the applicant did not comply with s101(b) because he provided incorrect information in his Protection visa application made on 12 October 2012 to questions 4 (by not indicating he was known by any other names), and questions 42-48 relating to his claims for protection.

    Applicant’s response to NOICC

13. The delegate’s decision record indicates the applicant’s then migration agent requested an extension of time to respond to the NOICC, but never provided a response and subsequently advised he no longer represented the applicant.  A copy of the NOICC was then sent directly to the applicant in August 2019.   The applicant did not address any aspect of the non compliance alleged in the NOICC in his response to the Department in September 2019, providing the following evidence:

    ·Medical certificates dated [in] May 2003, [January] 2004 and [April] 2004 from [a named] Hospital referring to for 'stab wound in lower extremity that resulted from dustup and knife-stabbing'; 'stab wound abdominal lower extremity', 'abdomen and shin injury by a sharp object' and treatment for continuous suicide attempts, respectively;

    ·Photos of himself on a bed with stomach lacerations;

    ·A military Exemption Certificate dated [in] May 2008 issued by the Deputy of Iranian Public Conscription Organisation;

    ·Medical certificate dated [in] May 2008 issued by [a named] Psychiatrist, [at a named] Hospital; and

    ·Australian medical records from 2013 to 2015.

14. On 21 October 2019 the delegate determined the applicant did not comply with s101(b) of the Act and, having considered the information submitted by the applicant in response to the NOICC and the relevant legislation and guidelines, decided to cancel the visa.

    Evidence before the Tribunal

15. On 20 February 2021 the Tribunal received from the applicant:

    ·A Statutory Declaration by the applicant dated 20 February 2021 explaining that his previous migration agent did not assist him with making a response to the NOICC as he was unable to make payment of his professional fees. He provided details about his family background, including his father’s Iraqi heritage and the family descendance of Imam Ali to explain aspects of the naming structure, and immediate family composition.  He provides details of the earlier period in Nauru in 2001 and his recollection of the information he provided at that time and explanations for this. He states that he recalls he stated he was born in Iran and referred to the name [variant of the applicant’s name].  He acknowledges he gave a different date of birth, making himself older that his true age, on advice from others.  He refers to his poor state of mental health in Nauru and attempted suicide at that time. He refers to his ability to travel to Iran due to having a [Relative A] as a senior [officer] at the airport which gave him courage to return to see family. The applicant refers to his mental health history from the time he was in Nauru and continuing while he has been in Australia.  He was hospitalised for this reason in 2016 and refers to current medication and the diagnosis of his condition.  He also refers to his [Relative B] in Australia who is at present committed to a mental health facility and his concern for this relative. 

    ·Letter dated 20 January 2021 from [Psychologist A], confirming the applicant is under his psychological care and receiving treatment for a long standing mental illness. Reference is made to the medication the applicant is taking and that his “psychological and psychiatric symptoms appear to be of adequately (sic) and severity to warrant a clinical diagnosis of schizophrenia with dominant depressive phase.”

16. On 12 July 2021 the Tribunal requested the Department provide copies of the following documents referred to in the cancellation decision record : applicant’s 2010 RSA application referred to in the decision record;  copies of the applicant’s Nauru documentation including application for refugee status, interview recording or notes relating to an interview on 8 November 2001 and 12 April 2002 in Nauru and records of interviews with Departmental officers relating to the applicant’s travel in 2015 and 2016 referred to in the decision record. 

17. On 14 and 23 July 2021 the Department provided:

    ·[File number] relating to [Father A’s] RSA application made in Nauru in 2001 (applicant’s father’s application).  These documents include the review determination relating to the applicant’s father’s Refugee Status Determination application and notes of interviews held with [Father A] on 12 April 2002 in Nauru (folios 42-51), and 8 November 2001 (folios 20-28). There are also notes of an earlier interview on 25 October 2001 in which the applicant’s father refers to having the name [applicant’s family name] in Iran (folio 17). 

    ·RSA Application Form and Form 80 completed by applicant ([applicant’s name]) on 17 December 2010.

    ·Records of Airport departure and arrivals relating to applicant ([variant of the applicant’s name]) [in] June 2016, [November] 2015 and [August] 2015.

18. At the hearing the applicant provided the following information. He presently lives at his sister’s residence, in the garage downstairs.  She lives upstairs with her husband and [number] children, ranging in age from [age] years to [age] years.  Their brother also lives with them. The applicant has been living at his sister’s address for the past 3 months or so, previous to that he lived at various other addresses and has been coming back and forth to his sister’s place for numerous years.  He is currently single and does not work and has no income.  He is supported by his sister and has received some assistance from [an agency]. 

19. The applicant confirmed that he arrived in Australia at [Location 1] in October 2010 and applied for protection. When asked why he sought protection he said he had a lot of problems with the police, particularly with the security police. He confirmed that he previously departed Iran in 2001 and returned to the country in 2002. 

20. The Tribunal discussed with the applicant the Statutory Declaration dated 17 December 2010 that set out the claims he made in his protection application. It referred to the specific claims he made there, about problems he had at school, being beaten by teachers and in his [age range] when he encountered trouble with the police.  He agreed these things happened, but he never did anything, he was just accused of it, or it was alleged.  Regarding the claims about time at [Prison 1], he said he was taken there once and was taken to an interrogation room.  He was imprisoned once because of the issues he had.  When asked to elaborate about the ‘issues’ he referred to clashes young people had with security officers. They were always taking him into detention and once to prison.

21. The Tribunal asked the applicant about the incident referred to in the statement that occurred when he was [age range] and posed with a soldier’s gun. He described how he had two friends who were soldiers and he took their guns and posed for a photo and put it on social media.  As a result of this he was taken away by soldiers from [a specified unit] who demanded to know where the guns came from.  When asked if he was charged with anything arising from this incident, he said he was taken a few times to the station, questioned and beaten.  Later they came to know the guns had identification numbers and could be traced back to that station. He was let go after that. He referred to being taken to a court but released.  This incident occurred after he had returned to Iran from Nauru.

22. The Tribunal asked the applicant if he recalled the reasons he left Iran the first time, when he ended up in Nauru.  He said he was very young then and left with his family.  He told the officials he played football and had issues at school. The Tribunal noted that the records of his interviews held during this period are now before the Tribunal and read out to him the responses he provided then relating to guns and drugs in his country and that he left because of these conditions. The applicant did not dispute this. When asked why he returned to Iran in 2002, he said his father decided to return and he was not in a good mental health state.  He did not make the decision in the right frame of mind as he was mentally affected. 

23. The Tribunal asked the applicant about his exemption from military service, noting he had provided a letter dated December 2002 indicating he was exempted for physical and mental health reasons.  He confirmed this was after his return from Nauru. The Tribunal noted there is also contradictory information before it, specifically two letters dated in May 2008 regarding his state of mental health – one said he was exempted permanently from military service due to ‘nervous and psychic disease’ and another, issued for the purpose of obtaining a drivers licence, said he had no symptoms of severe psychological disorder.  The applicant appeared confused about this and stated that he does not know why the letter stating he had no mental health disorders was issued. He reiterated that he was found to be unfit for military service due to his mental health, he was assessed by specialists in the military department. The applicant confirmed he was hospitalised on several occasions in Iran between 2002 and 2010 for suicide attempts.

24. The Tribunal asked the applicant about his return visits to Iran in 2015 and 2016.  He said he was suffering from mental health issues and was obtaining services in Australia at this time but he was not happy with the way they were managing his condition.  They were constantly calling him and made him take medication by injection and he was resisting this.  He was not in a good state of mind.  He told the doctors he wanted to return to Iran.  He told them his parents were in a difficult situation.  The applicant stated he wasn’t making good decisions at this time. He was in ‘an abnormal state’. He was being medicated by injections and he did not want it. 

25. When asked what the difficult situation his parents were in, the applicant said they were being visited by officers from [the specified unit] looking for him.  The Tribunal asked why then he would return. He said he visited his parents in a covert fashion, not staying with them.  He stayed elsewhere.  When asked if he experienced any adverse incidents during these visits he said he was under surveillance but was never located and so he did not have any incidents.

1. The Tribunal asked about the travel documents he used to visit Iran.  He said he left Australia on his Australian travel document and entered Iran on his Iranian passport. The Tribunal asked why he applied for an Iranian passport given his claimed fear of the authorities. He said he applied for it because he understood as an Iranian citizen he had to enter Iran on an Iranian passport.  He confirmed he had no issues applying for the passport in Australia. He also had no issues with Iranian authorities in the periods he stayed in Iran in 2015 and 2016. He said the reason for this was that he had a [Relative A] who has connections and [this relative] collected him from the airport and he stayed with him so he was safe.

2. The Tribunal asked the applicant why he returned again in 2016. He said that his parents were in trouble and he went to see them. When the Tribunal sought to clarify whether he went for reasons of his mental health or his parents he said it was for both reasons. Nothing happened to him on this occasion either. Because of the political connections of his [Relative A] he was okay.

3. The applicant confirmed that his sister was aware of his trips to Iran.  She gave him the money to travel there. It was not her decision but his to go back.  She did not stop him.

4. The Tribunal put to the applicant that in the health records he provided, there is a note in August 2015 that he stated he made up the symptoms of his mental health to get Centrelink benefits. He confirmed that he said this, and explained that at the time they were medicating him with an injection and constantly calling him and he wanted it all to stop so he said that. 

5. The Tribunal asked the applicant about his current health and treatment.  He said he has been seeing [Psychologist A] but last saw him in January and not since then because of the coronavirus situation.  He also sees the local family doctor and saw her once this year.  He is not presently taking any medication. He is sick of all of this, for the last 20 years.  He has been damaged both here and in Iran and is tired of it.

6. The Tribunal discussed the Department’s NOICC with him. He agreed that he received it and provided material in response, being his health records. The Tribunal confirmed with the representative whether any issues are raised with the sufficiency of the NOICC and the particulars of non compliance it refers to. The representative confirmed that she is not raising any issue about the validity of the NOICC, but just that the applicant did not have the opportunity to put his full arguments in response due to his mental health issues and vulnerability. 

7. The Tribunal noted that the first issue it must consider is whether there has been non compliance as described in the NOICC, and if so whether the visa should be cancelled having regard to the discretionary factors it must consider.  It noted that the circumstances of his mental health are covered in the health records submitted, and the applicant has provided information regarding his circumstances during this hearing. It asked if anything else he would like to put forward relating to the discretion not to cancel his visa.  Specifically it asked if since coming to Australia he has had any other issues with the law.  He said he has had three issues, one related to a driving licence, another to domestic issues and a third relating to security.  He was incarcerated for 3 months at [Prison 2] when he came out of the detention camp but then he was released.

   Evidence from witness – [named]

8. The witness confirmed she is the applicant’s sister.  He is presently living at her home, with her husband and [children], and her son in law and another [relative].  She came to Australia from [Country 1] in 2007, having originally left Iran in 2001.  She has since returned several times to Iran in 2008, 2017 and 2019.  In Iran she has her parents.  One [sibling] is deceased and [two other relatives] are here. Her brother has lived with her on and off over the years.  He is not in a good state of mental health. He has spent some time hospitalised, and they have medicated him by injections which he did not like.  She tried to question this.  The Tribunal asked her about the notes in his medical records regarding his statement that he was faking his symptoms to access benefits and that she confirmed this at the time.  She said he said those things about faking his symptoms to stop them giving him the injections. He was really not well at that time and had decided to go to Iran.  She tried to convince him not to go because he may face problems there, but he was in a very bad mental state and believed he could not survive .  When he was in Iran her father told her that he was in very bad shape there. The Tribunal asked the witness about his travel back again in 2016.  She said it was a similar situation – he was not in good shape.  She was not happy with the medical treatment he was getting here and was looking at challenging it.

9. The Tribunal asked the witness what she knew of his current state and treatment.  She said after 2016 he did not live with her for a while and she does not know if he continued with his medication. 

10. The Tribunal asked the witness what she knows of the applicant’s period in Iran between 2002 and 2010. She said she does not know because she was not there. 

11. The Tribunal indicated that it would consider the material before it and evidence provided today, and if necessary it will provide a further opportunity to make submissions addressing the issue of the discretion, which was not fully canvassed during the hearing.

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

12. The Tribunal has considered the validity of this NOICC, and 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.

13. The Tribunal is satisfied that the notice provided sufficient particulars of the alleged non compliance sufficient to satisfy s107(1)(a) in that it identified the specific information that was alleged to be incorrect and the basis for the allegation.

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

14. 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.

15. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) in the following respects: That he provided incorrect answers to the following questions in Part C of Form 866-Application for a Protection (Class XA) visa:

    ·Question 4 - relating to the names he was known by

    ·Questions 42- 48 – relating to the country he seeks protection from, reasons why he left, harm experienced there, fears upon return and reasons for that and why the authorities cannot and will not protect him.

16. The Tribunal has carefully considered all the evidence before it, including the documents and information referred to in the NOICC and delegate’s decision record, documents relating to the applicant’s originating request for Refugee Status Assessment (RSA) that led to the Protection visa application, and the applicant’s oral and written evidence to the Tribunal.  It makes the following findings on the issue of the non -compliance.

    Alleged non compliance relating to Question 4 – names he was known by

17. The applicant responded N/A to Question 4 in Part C of his Protection Visa application lodged on 12 October 2012.  On its face this was not a correct response. It was also not consistent with information about other names he had been known by that the applicant had provided to the Department prior to this.  The Tribunal notes that the lodgement of the Protection Visa application was made following the outcome of an earlier Refugee Status Assessment (RSA) request lodged on 17 December 2010 and reviewed by an Independent Merits Reviewer (IMR).  In his RSA request and subsequent IMR review he provided information about his earlier travel to Nauru and the names he had used in that context.  Specifically in the Form 80 submitted with his RSA request at question 3 he referred to names [Alias C], [Alias A variant] (with a note Client uncertainty, client not very literate, poor memory) and at question 37 he provided further information I used various other names in the past. I cannot remember. In Indonesia I used a name [Alias B variant]; in Nauru I was [Alias C variant] or [Alias A variant] – not certain.[1]  Records of an Identity Interview held with the applicant on 13 February 2012 refer to other names the applicant was known by [Alias C] and [Alias A variant]  (Nauru/Statement of Claims/Form 80/UNHCR Consent).  The interview record indicates the Department was aware of the names used on his previous entry when he was detained in Nauru and when questioned about these names the applicant confirmed they were his father’s family names used in Iraq and said his father controlled the information on his bio-data and immigration pathway at that time.[2] 

    [1] [File number] ,[File number] folios 54, 61

    [2] [File number], folios 302-306

18. It is clear from the above information that the Department was aware of the information about other names the applicant had used or was known by and that he had previously been in Nauru from information the applicant had provided himself in his RSA documentation and interviews and Departmental records well before he completed Part C of Form 866.  He was specifically interviewed about these matters in the Identity Assessment conducted in February 2012 which concluded that he had provided a plausible explanation about why he was unable to provide other identity evidence and he was found to be cooperative in providing identity information.

19. In these circumstances, taking account of all the information the applicant provided in response to this question about what other names he is known by, the Tribunal is not satisfied that there has been non compliance in the applicant’s response to this question.  

20. Even if the Tribunal is wrong to take a broad and comprehensive approach to this question, and concludes that the answer ‘N/A’ to question 4 on Part C of Form 866 is incorrect on its face, the Tribunal is of the view that the fact that the Department was well aware of the information that the applicant was known by another name and had been in Nauru in 2001, and that the applicant himself had disclosed this earlier in the RSA process, are factors that weigh against cancelling the visa on the basis of this non compliance, in addition to other strong discretionary factors against cancellation in this case, including his vulnerable state of mental health, length of time in Australia and that the correct answer to this question would not have impacted on the decision to grant him a visa in this case because the conclusions of the IMR which formed the basis of the favourable recommendation that he was a person to whom Australia owed protection obligations, were made in full knowledge of the applicant’s prior presence on Nauru.

    Alleged non -compliance relating to Questions 42-48 Protection claims

21. The NOICC alleges the applicant’s answers to Questions 42-48 on Part C of Form 866 (which refer to his RSA Statement) were incorrect on the basis that the events described are inconsistent with information now before the Department from his application made in Nauru in 2001.  It is also alleged that his claim that he cannot return to Iran because there is a warrant out for his arrest, is inconsistent with his conduct in acquiring a new Iranian passport and voluntarily returning to Iran on two occasions for a cumulative period of five and a half months in 2015 and 2016.

22. The Tribunal has considered the information referred to in the NOICC relating to information provided by the applicant in Nauru in 2001 and the claims made in his subsequent Protection visa application process in 2010.  It has also considered the information and evidence provided in response to the NOICC and his evidence to the Tribunal at the hearing about these matters. Among the documentation provided by the Department to the Tribunal is the applicant’s father’s Nauru application file.  A close reading of this file indicates that it contains relevant information about the applicant’s issues and state of mental health consistent with the applicant’s subsequent protection claims.  For example, the decision record of the Review of Refugee Status Assessment of the applicant’s father refers to his evidence that his son [the applicant] is ‘unable to concentrate’ and ‘his mind is still young’, also to him having a ‘certain attitude’ and that he was ‘watched most of the time’ and would get  ‘in trouble for using satellite TV and Basige (sic) committee members would take him away for walking down the road’.[3]  In the applicant’s own interviews on Nauru, it is noted that he referred to troubles he had in school and that ‘recently people were hit with cables and pipes,’ that he was avoiding military service and was concerned about issues with drugs. The interview  record indicates that he did not claim to fear harm for any specific reason, but rather claimed that he wanted to get away from harmful influences.[4]  The Tribunal notes that it has not been provided a decision record for the applicant’s own refugee assessment in Nauru, only the record of interviews held with him in this period.  The Tribunal considers the information relating to the applicant’s 2001 Nauru application is somewhat vague and lacking in detail and in some respects internally contradictory but not entirely or clearly inconsistent with the subsequent, more detailed, information provided in the applicant’s request for Refugee Status Assessment in 2010. 

    [3] [File number], folios 66, 68

    [4] [File number], folios 40-44, 11-30

23. At the hearing, the applicant stated that, in substance, he maintains the claims made in his 2010 RSA Statement, although he is unable to recall or recount specific details because of the passage of time since that declaration was made and his state of mental health since then and continuing. A substantial volume of health records is before the Tribunal to substantiate that he has been struggling with mental health issues for many years both in Iran and Australia.  The Tribunal took this into account in the manner and extent of its questioning of the applicant regarding past events.  Notwithstanding this, he was able to recount with some clarity the difficulties he experienced in Iran since a young age, and the nature of his problems with the authorities on the basis of his age, attitude and behaviour/conduct.  His evidence to the Tribunal was substantially consistent with the account and findings made by the IMR in his protection assessment in 2012.  The Tribunal does not find any of this to be clearly contradicted by, or in conflict with, the records of information now available from his 2001 Nauru file. 

24. The delegate also pointed to the applicant’s return visits to Iran for substantial periods on two occasions without incident, and his conduct in applying and acquiring an Iranian passport as indications that he did not have a genuine fear of harm as claimed in his Statement and there was no warrant for his arrest. 

25. Considering all of the information and evidence now before it, including the context of his substantial mental health issues and struggles with treatment and compliance with treatment, the Tribunal has reached a different conclusion to the delegate on the information from his 2001 Nauru application and the relevance of his subsequent conduct to the veracity of the applicant’s protection claims made in 2010.  

26. Contrary to the delegate’s conclusions, the Tribunal finds that many of the events referred to in the applicant’s Statement of Claims, and in his evidence before the IMR, occurred after he returned from Nauru in 2002.  For example, his exemption from military service, experiences in [Prison 1], altercations with police officers in his [age range] and the specific incident of the photo posing with the soldier’s gun. There was significant evidence even before the IMR relating to his mental health issues in Iran in this period, and his vulnerability due to his mental health issues was clearly a significant part of the conclusions relating to the risk to him of persecution in future. The evidence before the Tribunal relating to his mental health in Australia since the grant of his protection visa is consistent with this and demonstrates that he continued to suffer from mental health issues and that this has also affected his conduct in Australia.

27. The applicant explained to the Tribunal his decision to return to Iran in 2015 was made during a period of crisis in his mental health.  He was challenging and resisting the treatment being imposed on him at that time, and believed he was unable to survive in Australia so he made the decision to return to his parents in Iran. He told the Tribunal it was his decision, although not made with a stable mind.  His sister advised against it but did not stop him from going.  In her evidence to the Tribunal the applicant’s sister confirmed that she was not in favour of his return to Iran, but could not stop him.  She said her father informed her that he was not well during his period there also.  The second visit in 2016, was for similar reasons and explained also by his mental state.  The health records before the Tribunal indicate that the applicant was uncooperative with his treatment in this period and had made the decision to travel overseas. The Tribunal finds that the information contained in the health records, and his sister’s evidence , is consistent with and supports the explanations provided for his conduct that that time. It accepts that he travelled back to Iran to be with his parents in circumstances of mental health crises he was experiencing in Australia.  While there is no evidence, and he has not claimed, that he experienced any adverse incidents during the period of these visits, the Tribunal is of the view that this does not of itself substantiate a basis to conclude that the information he provided in 2010 in his protection claims was incorrect.

28. The delegate also referred to the applicant’s conduct in applying for and being granted an Iranian passport, as supporting a conclusion that his information in his protection claims was incorrect.  Before the Tribunal the applicant explained that he applied for the passport because he understood that, as an Iranian citizen, he would have to enter Iran on this document.  He confirmed that he experienced no issues obtaining the passport in Australia.  Of itself, and in the context of all of the information before it, including the evidence relating to his history of mental illness, the Tribunal is not satisfied that this substantiates a conclusion that he provided incorrect information in his protection claims. The Tribunal is not convinced that his conduct applying for and obtaining an Iranian passport in 2015 necessarily meant that he did not experience the incidents and issues he described in his statement of claims, considered in the context of the evidence as a whole that was, and is, before the Department and Tribunal, including his circumstances of mental illness and consequent vulnerability.

29. Reasonable minds may differ as to whether a decision by an applicant (or, as in this case, a visa holder) to return to the country where they claim to fear being persecuted is inconsistent with that claimed fear.[5] In the present case, the Tribunal has considered the context of the return trips and finds applicant’s explanation for his visits, on the evidence before it, to be credible and plausible.  Additionally, strictly speaking the Tribunal is not considering whether the applicant had a fear of persecution in 2015 or 2016, the issue under consideration is whether he genuinely had a fear of persecution for the reasons claimed when he made his Statutory Declaration in 2010 and whether his conduct in visiting Iran in 2015 and 2016 and applying for a Iranian passport in 2015 undermines the credibility of that. As explained above, the Tribunal is not satisfied that it does.

    [5] Compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

1. Having carefully considered all of the evidence before it, for the reasons provided above, the Tribunal is not satisfied that the applicant provided incorrect answers in his application for a protection visa. 

2. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

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

   Meena Sripathy
   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.