2005388 (Refugee) - [2021] AATA 2712

2005388 (Refugee) [2021] AATA 2712 (1 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2005388
COUNTRY OF REFERENCE:                   Iran
MEMBER:Kate Millar
DATE:1 July 2021
PLACE OF DECISION:  Adelaide
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 01 July 2021 at 7:44pm
CATCHWORDS
REFUGEE – protection visa – Iran – cancellation – incorrect information – Federal Circuit Court remittal – false identity – initial arrival on tourist visa – Muslim converted to Christianity – mental health issues – incorrect information of identity and method of arrival does not invalidate main claim – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A(1B), 101, 107, 109(1), 140, 195A, 197C(3), 197D, 198, 424A, 438
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994 (Cth), rr 2.12, 2.41; Schedule 2 cls 866.225, 866.226; Schedule 4, PIC 4001, 4002, 4003A
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

[The applicant] was granted a Subclass 866 (Protection visa) on 21 January 2011. In his application, he claimed to be a citizen of Iran who had arrived in Australia as a stowaway [in] October 2009. He claimed to fear harm in Iran due to his involvement in protests in Iran, and because of his conversion to Christianity.
The Department conducted a facial comparison between [the applicant] and [Mr B], a citizen of Iran who arrived on a tourist visa [in] October 2009 and had remained in Australia unlawfully from [November] 2009. As a result of this comparison, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs considered [the applicant] and [Mr B] were the same person, and that [the applicant] had provided incorrect information in his application for a protection visa. At that time, [the applicant] maintained he was not known by any other name. He has since conceded he is [Mr B].
The delegate ultimately cancelled [the applicant]’s protection visa under s 109(1) of the Migration Act 1958 (the Act) because he had provided incorrect information in his visa application.
[The applicant] applied for a review of this decision, and it has been before the Tribunal (differently constituted) on two different occasions and has been remitted on both occasions by the Federal Circuit Court.
On the first occasion, the Federal Circuit Court remitted the matter with the consent of the Minister because certificates purportedly issued by the Minister under s 438 of the Act were not disclosed to [the applicant]. On the second occasion, the Federal Circuit Court remitted the matter with the consent of the Minister on the basis that the Tribunal failed to consider whether [the applicant] would face a real risk of significant harm if he returned to Iran because he has been baptised and had attended church in Australia.
[The applicant] appeared before the Tribunal on 11 February 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant]’s visa should be set aside.
CERTIFICATES UNDER THE ACT
The Tribunal located five certificates in relation to this matter that state they are issued under s 438 of the Act. The Tribunal provided copies of these certificates to [the applicant] in writing on 8 February 2021, and he was invited to comment on the validity of the certificates. [The applicant] did not provide comment on any of the certificates. He was invited at hearing to provide any further comments on the validity of the certificates.
If the Tribunal acts on an invalid certificate, this is not a process according to law and can constitute jurisdictional error.[1] In this case, the first task is to examine the validity of the certificates.
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [40], [44].
The first certificate is dated 18 February 2010 and was issued in relation to file [deleted]. This certificate refers to two separate provisions; s 438(a) and one to s 438(b):
· The first section of the certificate states that disclosure of the documents would be contrary to the public interest because they “affect relations between the Commonwealth and a State or Territory,” and/or are documents relating to business affairs and/or internal working documents. In examining the documents, it is not apparent how these documents affect relations between the Commonwealth and a State or Territory. Stating that documents relate to internal working documents or business affairs (of the Department) does not disclose a sufficient public interest to attract the operation of s 438.[2] The Tribunal does not consider that this certificate is valid.
· The second aspect of the certificate relates to s 438(b) and states that folio 69 contains information that was provided in confidence. An examination of folio 69 shows it is a booking sheet for an interpreter, and the Tribunal is not satisfied this was provided in confidence.
The Tribunal does not consider this certificate is valid.
[2] MZAFZ at [37].
There are three certificates dated 1 March 2017:
·     The first certificate lists certain folios in the file that either have already been provided to the applicant, or do not match folio numbers on the file. This certificate is invalid.
·     There is a certificate completed by hand that relates to file [number]. This certificate states disclosure would be contrary to the public interest as it contains information relating to internal working documents and business affairs. This does not disclose a sufficient basis for public interest immunity, and this certificate is invalid.
·     There is another certificate completed by hand that relates to file [number]. This purportedly certifies that the disclosure of the information would be contrary to the public interest because it contains information relating to an internal working document and business affairs. This certificate is also invalid as it does not disclose a sufficient basis for public interest immunity.
·     A third certificate of 1 March 2017 also refers to file [number]. This certifies the information contained in folio 55 of the file was given to the Department in confidence. This certificate is valid.
The certificate dated 20 June 2018 that appears on file [number] is not signed and is invalid.[3]
[3] [Deleted].
Of the certificates provided to the Tribunal, the certificate dated 1 March 2017 relating to folio 55 of file [number] is valid. The information contained in this document is from an anonymous source and makes a vague allegation that is not supported by any other material before the Tribunal. In the absence of any other information to support the allegation, the Tribunal considers this information of little or no probative value and has disregarded this information.
INFORMATION UNDER S 424AA OF THE ACT
However, there was other information contained in this Department file that was put to [the applicant] under s 424AA of the Act. The information was contained in a record of a telephone contact with anonymous informant. The record of this contact states [the applicant] has mental health issues, he was alleging the end of the world was coming, had aggressive tendencies and had threatened people, and that several agencies had banned him from their offices, for example, an employment agency and [Organisation 1]. It was also alleged he had made threats to destroy them.
[The applicant] was advised that if it relied on this information, the Tribunal would find he had not contributed to the community, and that the circumstances did not support him remaining in Australia. He was advised this would be the reason or part of the reason for affirming the decision under review.
[The applicant] said before he had a letter from [Organisation 1] and from his GP. He said they are biased against him and stole his workers compensation. He stated that he paid a man at [Organisation 1] about $5,000 but the man used it for gambling. He appears to be referring to his support worker from [Organisation 1]. He said the police gave him a hard time because other people had a good relationship with police, and he had done nothing wrong. He said police came and seized his mobile phone. He cut himself and they took him to a mental health ward. He said the people in the mental health ward gave him a hard time, so he had to leave [Town 1].
[THE APPLICANT]’S EVIDENCE
In the course of the hearing, [the applicant] gave answers to questions that were at times unusual or bizarre. He said he has seen the sign of the end, and we are close to seeing Jesus a second time. He said he told the Tribunal before we would have World War III and the end of the world. In the near future his country (Iran) will be hit by three earthquakes and many people will die.
On being asked about his current mental health, he said a lot of people gave Jesus Christ a hard time even though he was perfect.
He was reluctant to provide information and frequently said he did not remember when it was apparent he was trying not to provide the information, for example, whether he had ever been married or had children and details of his family composition. He had to be reminded that in issue was his truthfulness with the Department and the Tribunal, and it was important to tell the truth.
The Tribunal put to [the applicant] that it was concerned about some of the unusual answers to questions asked of him. It was put to him that the Tribunal had concerns about his mental health, and he was asked if the Tribunal should try to obtain his health records to find out about his mental health. He said he has not seen a psychiatrist in Adelaide as he had no need. The Tribunal asked [the applicant] if he wanted to obtain a report about his mental health from his general practitioner. [The applicant] said he has a general practitioner and has been provided with a mental health care plan; his current doctor is [Dr A] from [location].
He said he had an argument with [Dr A]’s medical clinic over the phone when a pharmacy would not fill his prescription and they have banned him from attending the clinic. He said many people have banned him.
On being asked if he wanted me to seek a medical report before continuing, he said that he would need a mental health care plan, and this has been suggested to him many times. He was asked if the hearing was adjourned if he would obtain an assessment under a mental health plan, but he said he would refuse to obtain an assessment.
The Tribunal considered adjourning the hearing to obtain a medical report on [the applicant]’s mental health. [The applicant] said he would refuse to get an assessment. As there was then no utility in adjourning the hearing, it was unclear where the Tribunal could source any information that was reasonably current (as detailed further below), and as [the applicant] objected to adjourning the hearing, the Tribunal proceeded.
In terms of his history, he said that in 2010 he was suffering PTSD and used to drink four litres of alcohol a day.
On being asked what happened to cause him to have PTSD, he said it was during the election and he was very active in demonstrations against the government and some of his friends were shot by snipers on the top of the roof. While he had difficulty remembering the location, he said this happened in Ekbatan, Tehran, six to seven months before he left Iran. This is also reported in a medical report dated 8 May 2013, which formed part of the contemporaneous notes of [a named doctor].
A referral to a psychiatrist was made by [a doctor] as reported by her on 28 June 2017. A letter from a mental health nurse reports arrangements were made for a psychiatrist to see [the applicant], but due to the extent of his behavioural symptoms he was unable to tolerate the interview. The nurse states he provied [the applicant] support over several years during further periods of homelessness and crisis, and he has not been adequately treated for his condition.
[The applicant] said he has had a hard life in Australia, he was hurt while working and his knee and shoulder still need to be fixed. He said it is discrimination that he has not had a knee replacement. He said the insurance company put a lot of pressure on him in [Town 1], and the only solution was to cut himself. He says police gave him a hard time and he had to cut his wrist, and he was in hospital for a month.
[The applicant] has an extensive English vocabulary and spoke English fluently. He presented as highly educated. The Tribunal was mindful that [the applicant] has repeatedly been untruthful and was able to maintain these untruths over a lengthy period and at both an interview with the Department and a previous Tribunal hearing. It could not discount the possibility that his presentation at the hearing was to further obscure elements of his account.
However, having reviewed the recording of the delegate’s interview and the previous hearings of this Tribunal, the Tribunal considers there is a notable decline in his mental health that could not be accounted for by a deliberate attempt to mislead the Tribunal.
Even accounting for this decline the Tribunal found it could not give a great deal of weight to his oral evidence. He said the Department knew all along who he was, and he was offered a a visa if he said he had come from Sydney. The Tribunal does not consider this plausible.
[The applicant] previously had non-government organisations including [a named organisation] and the [Organisation 1] acting on his behalf and previously gave evidence to this Tribunal. On those occasions, he has fabricated events about his arrival. It was put to him that as he had been repeatedly untruthful in the past, the Tribunal would have difficulty accepting his oral evidence now. [The applicant] said had he been truthful he would have lost his visa, so of course he would not be truthful. He said everyone knew he was not telling the truth; everyone already knew the truth. He thinks his visa was cancelled because of the siege in Sydney as they cancelled many people visas.
Even allowing for his mental health, the Tribunal finds he has repeatedly been untruthful, and the Tribunal places little weight on his oral evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (the Act).
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101 of the Act. Section 101(b) states a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.
To exercise the cancellation power under s 109 of the Act, the delegate must first have the required state of mind to issue the notice, and then must issue 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.
In this case, the delegate had the necessary state of mind to engage s 107 as the delegate had information that [the applicant] was the same person as [Mr B]. The Tribunal is satisfied that the s 107 notice issued to [the applicant] provided particulars of the non‑compliance and otherwise complied with the statutory requirements.
As a valid notice has been issued, in issue is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
Was there non-compliance as described in the s 107 notice?
The notice issued under s 107 of the Act alleges non-compliance by providing incorrect information to questions asked of [the applicant] in his visa application. The incorrect information specified in the s 107 notice is contained in Form 866C in the application for a protection visa. In summary, the incorrect information is:
·     Question 1, when asked his full name, he answered [applicant name].
·     Question 4, in which he was asked “What other names are you known by? (such as name before marriage, previous name, alias). Also write your name in your own script or characters. If you changed your name, describe why and when you changed your name.” [The applicant] responded N/A.
·     Question 7, when asked his date of birth he answered [Date 1].
·     Question 28, when asked how he entered Australia, [the applicant] responded stowaway.
·     Question 29, when asked the date of his arrival in Australia, [the applicant] responded [date]/10/2009.
·     Question 31, when asked for details of the travel document, [the applicant] responded No documents. In answer to the document number he answered Not applicable and in answer to the country of document he states N/A.
·     Question 34, when asked the most recent Australian immigration authorisation granted to him, [the applicant] answered N/A to the type of authorisation and the visa or permit number.
·     Question 67, where [the applicant] signed a declaration that (among other things) the information provided in the form is complete, correct and up-to-date in every detail.
The s 107 notice states this information is incorrect as [the applicant] has provided incorrect information in his visa application because his name is [Mr B], his date of birth is [Date 2], and he travelled to Australia [in] October 2009 as the holder of a tourist visa.
While [the applicant] initially disputed this information was incorrect, he now concedes some of the information in his visa application is incorrect. At the previous Tribunal hearing, he conceded the information was incorrect, but that the Department knew from the beginning who he was.
At the most recent hearing, he said his correct date of birth is [Date 3]. This is not the date of birth in the passport issued in the name of [Mr B]. [The applicant] said it was possible someone did something illegal to get his passport, but he was not willing to disclose any further information. He said it may be some details were not accurate in his passport as he had to flee his country.
It was put to [the applicant] that the DFAT report states that passports are issued on the basis of a shenasnameh (birth certificate), that DFAT regard documents issued by Iran as including sophisticated security features, and document fraud is extremely difficult for passports and shenasnamehs.[4]
[4] DFAT Country Information Report Iran (14 April 2020) at [5.41]
He said sometimes they can make passports in Iran, but he was unwilling to disclose anything further.
It was put to him that if he did not disclose information, the Tribunal would need to make a decision on the information available and may draw an adverse inference about his failure to provide information. He was reminded that he had taken an affirmation to tell the truth, and that his credibility and whether he told the truth is in issue before the Tribunal. He said that many things can be changed on a birth certificate.
He later said his brother paid money, he thought it was US$20,000, but he did not know any other details. He paid that from his [business]. In his statutory declaration dated 4 May 2017, he declares he had his passport but his brother paid people to fix up his visa.
As documents issued by Iran are unlikely to be susceptible to fraud, and [the applicant]’s date of birth in the passport is [Date 2], the Tribunal finds his date of birth is [Date 2]. It also finds that the passport is a genuine document.

On the basis of the facial recognition report and the information specified in the notice about the correct information, the Tribunal finds the correct information is that [the applicant]’s name is [Mr B], his date of birth is [Date 2], and he entered Australia [in] October 2009 as the holder of a tourist visa.
The Tribunal finds [the applicant] provided incorrect information in his visa application in the way specified in the s 107 notice; being his name, date of birth, how and when he arrived in Australia, the travel document on which he entered Australia, and that the information provided in the application form was complete, correct and up-to-date in every detail.
The Tribunal finds that there was non-compliance with s 101 by [the applicant] in the way described in the s 107 notice.
Should the visa be cancelled?
Having found [the applicant] provided incorrect information as specified in the notice issued under s 107 of the Act, it is necessary to consider whether the visa should be cancelled under 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 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 reg 2.41 of the Migration Regulations 1994.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Documents provided
In his response to the s 107 notice, [the applicant] stated:
I am writing to you to dispute a letter I received in regards to my identity and cancelling my visa.
All information that I stated in my application 21 January 2011 was correct, and I am [applicant name]. I do not wish to change any information that I have provided to you, as it is not false or misleading.
[The applicant] has since conceded he provided incorrect information in his statutory declaration dated 4 May 2017. Other information he has provided includes various medical certificates, reports and referrals in relation to his knee injury, and letters of support from non‑government organisations. He provided a Certificate of Baptism from [a named organisation].
Documents provided in the current matter were:
·     Referral to an orthopaedic surgeon dated 15 May 2020 from [a] Medical Clinic.
·     Letter with the author’s name illegible on the letterhead of an orthopaedic surgeon, referring to a shoulder injury after a fall.
·     Referral to [a doctor] dated 10 July 2020 [requesting] his opinion and management.
·     A report of [an] orthopaedic surgeon, dated 22 September 2020.
·     A letter from [a Reverend]dated 10 February 2021 stating he had met [the applicant] the day before and he had spoken of his Christian faith and desire to receive spiritual support, but this may be difficult because of his injury and the circumstances of his accommodation.
[The applicant]’s background
[The applicant] was born in Esfahan, and his parents and one sister continue to live in Esfahan. He has [siblings] who live in Tehran. He is in contact with his sister [who] lives in Esfahan, and has contact with his parents. He said he speaks to them every two months. He has no contact with his brothers. He did have contact with one of his brothers when he was Christian, but then he changed his mind.
On being asked if he has a wife and children, he asked if he had to tell the truth. He eventually said he had a wife but divorced her many years ago. He has two children, one son and one draughter. He cannot remember their ages, but thinks they are in their [age] group]. His children live in Karachi near Tehran. He hasn’t seen them for more than 20 years.
On being asked if he had travelled in the past, he initially said he could not remember, maybe [two named countries]. On it being put to him that the Tribunal would generally expect people to remember travel outside their country of origin, he then said he had travelled to [three named countries]. He said he had not applied for a visa in [in other countries].
He said he left Iran through Khomeini Airport and arrived in Australia in Sydney [in] October 2009.
He stayed in a hotel for two days and then went to Surfers Paradise for a few days. He went to a police station and was taken into detention and applied for a protection visa on 20 November 2009. On being released, he went to Brisbane and lived there for two–three years before living in Sydney and [Town 1] for three years. He left [Town 1] because “many people” gave him a hard time, and he had a series of bad luck. He said Muslim people resented him and gave him a hard time and tried to get him in trouble. He has lived in Adelaide for the last two years.
The prescribed and other factors
The Tribunal first considered the factors in reg 2.41, and then additional factors.
The correct information
The correct information is that [the applicant] is [Mr B], his date of birth is [Date 2], and he entered Australia [in] October 2009 as the holder of a tourist visa.
The content of the genuine document (if any)
In this case, the genuine document is his passport. A copy of his passport appears on the tourist visa application for [Mr B].
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision to grant [the applicant] a protection visa was based on an assessment of his claims to be an Iranian citizen and that he was a Muslim who has taken up the practice of Christianity. The previous Tribunal accepted his claim to be Christian and to have a well‑founded fear of persecution for the essential and significant reason of his Christianity.
The incorrect information about his name, date of birth and method of arrival in Australia, as well as his visa status on arrival, do not impugn the finding of the Tribunal that he was a citizen of Iran who was preciously Muslim but had converted to Christianity.
Unless the Tribunal finds that particular answers to particular questions given by an applicant are incorrect, amounting to non-compliance for the purposes of s 101 of the Act and as described in the s 107 notice, the Tribunal cannot proceed as if the answer was incorrect.[5]
[5] DSH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 16.
In this case, it was not asserted in the particulars of the s 107 notice that information regarding [the applicant]’s claims for protection were incorrect. It follows that the Tribunal cannot find that incorrect information about his claim has been provided in a way specified in the notice (s 108).
The substance of his claims, accepted by the previous Tribunal, was that [the applicant] had a well‑founded fear of persecution for the essential and significant reason of his religion on return to Iran and he does not appear to have a right to enter and reside in a third country. The Tribunal found that on this basis, [the applicant] met s 36(2)(a) of the Act.
[The applicant]’s real name and date of birth are, however, relevant to the character criteria for the visa and assessment of Public Interest Criteria 4001, 4002 and 4003A as required by cl 866.225, as it was at the time [the applicant] applied for the visa. It is also relevant to whether the grant of the visa is in the national interest as required by the then cl 866.226. While this is relevant to the grant of the visa, it has not been established or asserted in the decision of the delegate that [the applicant] did not meet these requirements.
While the Tribunal finds that the decision to grant the visa was partly based on incorrect information, it places limited weight on this factor as it has not been established that he did not meet the requirements for the grant of this visa at the time he applied for the visa.
The circumstances in which the non-compliance occurred
[The applicant] claims at the time he applied, he was frightened he would have to go back to Iran. He said he thought he would be tortured if he returned to Iran and would be forced to give up other people and jeopardise their life, and he would rather commit suicide than return.
In his statutory declaration of 4 May 2017, he states he told the Department he came by boat instead of by plane as he thought this would avoid problems for those who helped him leave Iran.
He also claims that when he came to Australia, he could not adjust and started drinking alcohol and gambling and had mental health issues, and all these factors together meant he had a lot of bad luck.
The Tribunal does not accept that in the period of approximately four weeks between arriving in Australia and claiming protection, he would have developed significant alcohol, gambling and mental health problems.
The Tribunal accepts that [the applicant] had concerns about whether his visa would be granted if he told the truth. Given the concerns it has with his oral evidence, the Tribunal is not satisfied he was concerned about the potential consequences for others in Iran if he told the truth. That he would be persecuted if he returned to Iran was not put in issue by the Minister in the s 107 notice, and the Tribunal is required to accept his answers as truthful.[6]
[6] DSH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 16.
While there are aspects of his evidence the Tribunal does not accept, it does accept that at the time he was fearful of returning to Iran, and this fear was justified as shown by the finding that he had a well-founded fear of persecution. This factor operates in favour of not cancelling his visa.
The present circumstances of the visa holder
[The applicant] worked for a period of one month [in] Australia. In this time he suffered a workplace injury after falling at work on 9 February 2015.
He provided a referral from his general practitioner to an orthopaedic surgeon dated 15 May 2020, and a referral to a pain specialist dated 10 July 2020.
He has provided reports stating he requires a total knee replacement, and he reports ongoing problems with day-to-day life as a result of a work-related injury. It is suggested he may need surgery to his shoulder in the future.
He is currently living with others in Adelaide who are Muslim, and says he has to keep it to himself as otherwise he will be seen as a renegade again. Because of the problems with his knees and back, he says he cannot go to church like he did in NSW and in Brisbane, even though he believes in Jesus and has been baptised twice. He lies with Muslims despite his concerns about Muslims because he did not know anyone when he came to Adelaide and does not have much money. No-one he lives with knows he is Muslim, and he sometimes pretends to pray as a Muslim because otherwise they will know he is Christian. He has lived with some of them for three years.
[The applicant] came across as significantly mentally unwell. Having listened to the recording of the previous hearing, his condition appears to have deteriorated, with his answers becoming more erratic, and his level of concern about Muslims, police officers and others in the community has escalated.
The combination of his mental health and physical impairments weigh in favour of not cancelling his visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
This Division contains requirements not to give incorrect answers, to complete visa applications correctly, to notify of changes in circumstances and to notify the particulars of any incorrect answer.
[The applicant] did not notify the Department of his incorrect answers and maintained that his identity was [applicant name] in his subsequent citizenship application.
In response to the notice of intention to consider cancellation of his visa, he states:
All information that I stated in my application on 21 January 2011 was correct, and I am [applicant name]. I do not wish to change any information that I have provided to you, as it is not false or misleading.
This was untrue, and he now concedes he has provided incorrect information. Maintaining that this information was true shows a continuing disregard for the obligation to notify the particulars of any incorrect answer, and weighs in favour of cancelling his visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance before the Tribunal, and this factor is neutral.
The time that has elapsed since the non-compliance
[The applicant] applied for the visa on 20 November 2009. It is now over 11 years since the non‑compliance. The period of time since the non-compliance weighs slightly in his favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
A police check conducted [in] September 2014 shows [the applicant] has been before the courts for several offences.
The offences in 2010 include contravening a direction or requirement and public nuisance. He said at this time he suffered PTSD and used to drink alcohol, sometimes more than four litres of wine, and he was not able to adjust to his life. He says he was a victim of circumstances and saw much corruption in the police. He could not remember the public nuisance offence.
The next series of offences occurred in May 2011, and include public nuisance, serious assault – assault/obstruct a person acting in aid of a police officer, assault or obstruct police officer. He was placed on probation for 12 months and was required to pay compensation. In relation to the public nuisance offence, no conviction was recorded, however he was fined.
He also had issues with Muslim people in Brisbane. He said he had a big issue with police assault which was a complete lie because there was an argument between him and the people he lived with at the boarding house. When the police came, they broke his toes and then tried to cover up and say that he assaulted and bit the police. He said he was not going to plead guilty, but when they checked the camera his lawyer said it was better to plead guilty because he could not fight against the police.
[The applicant] said he had problems with the caretaker of the building who was Muslim because he used to drink alcohol, so they saw him as a renegade and gave him a hard time. He said he would not follow their rules because he followed Jesus Christ. They tried to get him in trouble and finally succeeded. He said they broke his toes when they tried to take him to the police station. He was going to complain, but they compelled him to change his mind.
In 2013, he was convicted of public nuisance and two counts of breach of bail. [The applicant] said they (police) try to convict people of public nuisance. He said at that time he suffered PTSD and was drunk, but about eight years ago he gave up alcohol.
The Tribunal invited the Department to provide an updated record of any further convictions, however this was not provided.
[The applicant] has breached the law, including by assaulting police since his application was made. He attributes his behaviour to actions of Muslims and because he was drinking. He says he no longer drinks. Assaulting others, particularly a police officer and those seeking to aid a police officer, is a serious matter. The sentencing remarks for these offences and any police records were not provided to the Tribunal. [The applicant] was not imprisoned and was placed on probation for 12 months.
His offending weighs moderately in favour of cancelling his visa.
Any contribution made by the holder to the community
[The applicant] claims to have volunteered as an interpreter for the [Organisation 1], however he also claimed he had fallen out with the worker and there was an allegation he had been banned from the organisation. The Tribunal finds that if he did any interpreting, and it is acknowledged his level of English is very good, this was on an informal basis.
No further submissions were made about any contributions he has made to the community. Given his limited contributions to the community, the Tribunal finds this weighs marginally in his favour.
Additional factors considered by the Tribunal

100. The Tribunal has also considered additional factors raised by the policy of the Department.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

If the visa is cancelled and [the applicant] exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen. Under s 189 of the Act, he may be detained. He is then liable to be removed under s 198, however for the purposes of s 198 as a protection finding has been made for him, the Act does not require or authorise his removal (s 197C(3)).
This means he will face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant him a visa under s 195A, the Minister decides under s 48A it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.

103. All these possibilities are speculative, and [the applicant] faces the prospect of indefinite detention according to s 196 (Commonwealth v AJL20).
104. The Tribunal has significant concerns about [the applicant]’s mental health and considers he would be at particular risk if he is in detention, both to himself and potentially to others.
105. The nature of the hardship he would face in ongoing detention is substantial. He will also face the prospect of his mental health declining. This weighs heavily in favour of not cancelling his visa.
Whether there would be consequential cancellations under s 140

Under s 140(2), if a person’s visa is cancelled under s 109 and another person holds a visa only because the person whose visa is cancelled held a visa, his or her visa may be cancelled. There are no consequential cancellations in this case.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

107. The facts of this case may give rise to Australia’s international obligations in regard to non‑refoulment.
108. The principle of non-refoulement is contained in Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
109. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights (ICCPR), Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty (Second Optional Protocol), Convention on the Rights of the Child (CROC) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).

110. The ICCPR and the Second Optional Protocol provide, for example, that no-one should be subjected to cruel, inhuman or degrading treatment or punishment (Art 7), and no-one shall be executed (Art 1 of the Second Optional Protocol).
111. Article 3 of the Convention Against Torture states no state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture. Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed.
112. Turning to whether [the applicant] would be refouled if his visa is cancelled involves looking at the effect if his visa is cancelled, and whether he could apply for another visa.
113. Section 48 limits the type of visa for which a person may apply after his or her visa can be cancelled. There is no information before the Tribunal that he would meet the criteria for any of the prescribed visas specified in reg 2.12 of the Migration Regulations 1994.

If [The applicant]’s visa is cancelled, s 48A(1B) prevents him from making a further application for a protection visa while in the migration zone unless the Minister thinks it is in the public interest that this provision does not apply. The effect of these provisions is that [the applicant] would require the Minister to consider it is in the public interest to do so under s 48A of the Act before he could apply for another protection visa.

115. [The applicant] currently holds a Bridging E (Subclass 050) visa which will cease 28 days after this decision or after the determination of any subsequent appeal (cl 050.512).
116. If [The applicant] is an unlawful non-citizen, he is liable to detention under s 189 of the Act. Under s 198 of the Act, he must be removed as soon as practicable.
117. Section 197C, has recently been amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.
118. The effect of the amendments is that s 198 of the Act does not authorise or require the removal of a non-citizen from Australia if, in summary, the person has had a “protection finding” made in respect of him or her (s 197C(3)), unless the decision in which the protection finding was made had been set aside, a decision under s 197D has been made or the non-citizen has asked the Minister in writing to be removed. None of the exceptions apply to [the applicant].
119. Under s.197C(5) a protection finding is made if the Minster was satisfied the non-citizen met the criterion in s 36(2)(a) and s 36(1C). A finding has been made in accordance with a decision of this Tribunal that [the applicant] met s 36(2)(a). [The applicant] was also found to meet s 36(1C), as shown by the grant of the visa.
120. This means there is no requirement or authorisation in the Act that [the applicant] is removed from Australia (s 197C(3)).
121. The result of this is that if [the applicant] exhausts his appeal rights, he can be indefinitely detained.[7]
[7] Commonwealth v AJL20 [2021] HCA 21.
122. It is not suggested he has a right to enter a country other than Iran. If he is not returned to Iran, and the Department is not authorised or required by the Act to return him to Iran, he will not be refouled as there will be no action to expel or return him to the frontiers of Iran in breach of Australia’s non-refoulement obligations.[8]
[8] Article 33 of the 1951 Convention relating to the Status of Refugees, International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty and Art 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
123. [The applicant] claims he will be harmed if he returns to Iran because of his political activities and his Christian faith. The Tribunal addressed these claims with [the applicant] at the hearing, however due to the amendment to s 197C, it is unnecessary to repeat this further here.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
124. On being asked if there was any other hardship he would suffer if his visa is cancelled, [the applicant] says if his visa is reinstated, he will be able to marry [Ms A] who will be able to care for him. [Ms A] is in Iran. He was not willing to tell the Tribunal how he knows [Ms A]. Her son is in Australia. The Tribunal infers he will suffer some emotional hardship in being unable to marry if his visa remains cancelled.
125. The report from the orthopaedic surgeon states [the applicant] needs a total knee replacement, however surgery that was scheduled was cancelled the day before the surgery as the insurer denied ongoing liability. The orthopaedic surgeon states [the applicant] may need surgery on his shoulders in the future. The availability of this treatment if he is in detention may be more limited.
126. The potential consequences for [the applicant] include indefinite detention which involves considerable hardship, however this has already been considered above in the mandatory legal consequences of cancellation.
127. This factor weighs in favour of not cancelling his visa.
CONCLUSION
128. The Tribunal has decided that there was non-compliance by [the applicant] in the way described in the notice given under s 107 of the Act.
129. There are factors that weigh in favour of cancelling [the applicant]’s visa, including his subsequent behaviour toward his obligation to notify of incorrect answers and subsequent breaches of the law.
130. However, most of the matters considered weigh in favour of not cancelling his visa. In particular, his mental health and the prospect of ongoing detention weighs heavily in favour of not cancelling his visa.
131. Having considered the prescribed factors and the other factors, the Tribunal finds his visa should not be cancelled.
DECISION
132. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Kate Millar
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.