2007328 (Migration)

[2022] AATA 3217

2007328 (Migration) [2022] AATA 3217 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Amin Farazdaghi (MARN: 1463623)

CASE NUMBER:  2007328

MEMBER:Melissa McAdam

DATE:21 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 21 September 2022 at 1:53pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Circuit Court remittal – incorrect information given in protection visa application and interviews – name, date and place of birth, citizenship, family composition and marriage – advice of people smuggler – religion – renounced Islam in Iran and converted to Christianity in Australia – political opinion – participated in anti-government demonstration – discretion to cancel visa – not Iraqi-born stateless but Iranian-born citizen after Iraqi-born parents regained Iranian citizenship – correct information conceded and documentation provided – low level of knowledge of Christianity and participation in church activities – time since visa granted – physical health – protection finding not set aside – voluntary return or likelihood of indefinite detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 46A(1), (2), 101(b), 107, 107A, 109(1), 197C(3), 198, 359AA

CASE
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 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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s 101(b). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The review application was previously heard and affirmed by the Tribunal (differently constituted).  The applicant sought review of that decision in the Federal Circuit Court of Australia. The matter was remitted by consent to the Tribunal by order of the Court.[1]  The Court noted that:

   The first respondent concedes that the second respondent committed jurisdictional error by misunderstanding or misconstruing the evidence before it in its consideration, pursuant to subregulation 2.41(d) of the Migration Regulations 1994 (Cth), of the circumstances in which the non-compliance occurred in considering its discretion to cancel the applicant's visa pursuant to section 109 of the Migration Act 1958 (Cth).

   [1] ELY19 v MICMSMA, 20 April 2020.

   Section 107 Notification, NOICC

4. On 2 March 2018 the Department Delegate issued a Notice of Intention to Consider Cancellation of the applicant’s Resident Return visa under s107 of the Act (‘the first NOICC’), to the applicant.

5. In the first NOICC the Delegate referred to the applicant’s protection visa claims to be an Iraqi citizen, whose father had been killed and who had been forced to flee with his family to Iran, where he lived illegally. The Delegate then referred to subsequent information that indicated the applicant had provided incorrect identity and family composition details, that he had a brother in Australia, that he had citizenship in Iran and that his protection claims were based upon incorrect information.

6. On 16 March 2018 the applicant’s representative provided a written response to the first NOICC.  In the response the following materials were included:

   -A written submission from the representative.

   -A Statutory Declaration by the applicant.

   -Copies of the applicant’s official Iranian identity documents, showing that his name is ‘[the applicant]’; he was born on [Date 1, Year 4] in Tehran, Iran; he married in Tehran on [Date, Year 13]; and he completed his compulsory military service in Iran on [Date, Year 11].

7. In the applicant’s Statutory Declaration he writes the following:

   This statutory declaration has been written to clarify about the false information provided by me to the Australian Immigration Department (the Department) since my arrival to Australia and to attest that I am remorseful and regrets doing 'something completely out of my character'. I hope that I would be forgiven by Australian authorities. However, I accept the consequences of my action and I believe that Jesus Christ will help me to be released from this misery which I suffered everyday since my arrival to Australia in 2009.

   I am a citizen of Iran. I do not have a right to citizenship or a right to reside in any other Country.

   I am Iranian by birth and I am a Christian. My father and mother were born in Karbala, Iraq and expelled by Saddam regime from Iraq to Iran when they were teenagers. I have two brothers and two sisters and all of them were born in Tehran, Iran.

   I was born on [Date 1, Year 4] ([Equivalent date] in Iranian Calendar) in Tehran, Iran. I left Iran because of the issues I had in regards to my political activities against Iranian regime, my religious belief and the issues I had with my father in that regards. Those issues will be explained in the following paragraphs. When I was on the way to Australia, the people smuggler asked about my claims of protection and I told him that I attended anti-government demonstrations after Iranian presidential election in 2009 and I was tired of Islam and I explained about issues I had with my father. I also told him that my parents were born in Karbala, Iraq and they were expelled to Iran by Saddam Hussein regime. The smuggler told me that if I say these things, I would be deported back to Iran. He told me that if I say that I am a stateless person without any identification, I would be granted Australian permanent visa very quickly. I did not know anything about the Immigration rules and I only wanted to avoid being deported to Iran at that time. This was the only reason for wrong information I provided in my arrival to Australia. I wanted to tell the truth later on especially after my case was refused for the first time in December 2009 and also when I applied for citizenship and attended identity interviews. However, I was told by other asylum seekers and protection visa holders that if I tell the truth, I would not be able to leave the detention forever and I might be deported back to Iran. I confirm that I am an Iranian citizen and all the information I provide in my current statutory declarations are true and correct and these information can be confirmed with all the Iranian identity documents I provided with my response to the Notice Of Intention to Consider Cancellation (NOICC) letter received by me on 2nd of March 2018. I understand that the department would question my integrity. However, I do not have any choice other than telling the truth and I am regretting about the fact that I provided wrong Information in my dealings with the Department. This was the only wrong doing that I did in my life and is out of my character. I am taking responsibility about my past actions and I am willing to explain and clear any concern that might raise due to the wrong information I provided under the influence of the people smuggler. I am telling the truth and only truth from now on. I believe that Jesus Christ would protect me from anything bad that might happen to me.

   I was told by the people smuggler that the only thing that I need to tell the Australian authorities in order to obtain visa and not deported back to Iran is that I am stateless and do not/did not have any identity documents. I was told to make my case simpler and do not provide information about my siblings and etc. I was also told to tell the authorities that I am a younger person than my real age as Australia needs young people who can work more. Because of the wrong information about lacking identity documents, I could not provide the details of my education history and many other details. The truth is that I was born in a Shia Muslim family in Tehran, Iran. My parents were born in Karbala, Iraq, but they were expelled to Iran by Saddam Hussein regime and they could manage to obtain Iranian citizenship by providing the evidences of Iranian citizenship of their ancestors. My parents and me and my siblings do not have any Iraqi documents and we are only Iranian citizens. My real name is "[the applicant]. I was told by the smuggler to provide my name in Iraqi version using my father's name ([Mr A – given name]) and my grandfather's name ([Mr B]) and my tribal name ([Tribal name]) in order to be recognised as a Stateless person. So, the name of '[Alias]' is not correct and my real name is "[the applicant]". Later in Australia, I changed my name to "[the applicant – changed name]". Also, my correct date of birth is "[Date 1, Year 4]". I was told by people smuggler to tell the Australian authorities that I am younger than my real age and when I entered, I told my date of birth as '[Date 2, Year 5]'. In fact in Iranian calendar, I was born on '[Equivalent date]' and I changed the year. All of these information can be confirmed by all of my genuine Iranian Identity documents.

   My father's name is [Mr A] and he was born in Karbala, Iraq on [Date 1, Year 1]. My father is still alive and lives in Tehran, Iran. However, when I entered Australia, I told authorities that my father has died as I had many issues with him when I left Iran and I did not want to see him ever. He is an Iranian citizen and does not have any other citizenship and does not have any Iraqi documents. It is stated in his Iranian birth certificate and my birth certificate that he was born in Karbala, Iraq. My mother's name is [Ms C] and she was also born in Karbala, Iraq on [Date 2, Year 1]. My mother currently lives in Tehran, Iran. She is an Iranian citizen and does not have any other citizenship and does not have any Iraqi documents. It is stated in her Iranian birth certificate and my birth certificate that she was born in Karbala, Iraq.

   l have four siblings. I was told by people smuggler that in order to make my case easier to provide as short information as I can and when I entered Australia, I told Australian authorities that I do not have any siblings. My older sister's name is [Ms D] and she was born in Tehran, Iran on [Date, Year 2]. She is Iranian citizen by birth. She is married and still lives in Tehran. My older brother's name is [Mr E] and he was born in Tehran, Iran on [Date, Year 3]. He is Iranian citizen by birth. He is currently in Australia, but neither me nor my family know about his whereabouts and the last contact I had with him was in 2014. My younger brother's name is [Mr F] and he was born in Tehran, Iran on [Date 3, Year 5]. He is Iranian citizen by birth. He is married and still lives in Tehran. My younger sister's name is [Ms G] and she was born in Shahre Rey, Tehran, Iran on [Date, Year 7]. She is Iranian citizen by birth. She is married and still lives in Tehran. I had a fail marriage. I got married to a girl named [Ms H] (DOB: [Date 1, Year 5]) on [Date, Year 13] and got divorced on [Date, Year 15] as we had relationship issues.

   I studied up to year 12. After I finished my studies, I did my compulsory military service from [Year 10] to [Year 11] for 21 months. After I finished my Compulsory military service, I worked in many different occupations in [Work sector] areas like [Occupation 1] and also as [Occupations 2 and 3] in Tehran. Because of the issues I had, I left Iran and came to Australia in October 2009. I am regretting my decision to provide those false information to the Australian authorities when I entered Australia. After that, I was trying to hide the truth that I am an Iranian citizen and that was making harder and harder to tell the truth. I told a lie and later lied about many other things to cover that lie.

   I was born in a restricted Shia, Muslim family. My parents were religious and I was raised in an Islamic environment. I had a very bad childhood and I could not enjoy my teenage years. I remember that I had to go to Mosque and participate in all Shia Muslim events. I had many bad experiences in Islam when I was teenager and from when I was around 21, it was obvious for me that I hate Islam and I renounced Islam.

   When I was a child, I had to participate "Azadari for Hossein" events which was for 10 days in month of Muharram (Islamic calendar) and Shia Muslims mourn for Hossein who they believe that was killed in the God's way. I really could not understand why I should cry and hit myself for a person who was killed in a fight between two Muslim groups around 1400 years ago. It was a very horrifying experience. My father forced me to go with him to Mosque to participate in mourning ceremonies and I had to hit my body and cry. I was witness of "Ghemeh Zani" which was one of the barbaric traditions amongst Shia Muslims where they will hit their head with a large dagger. I could see blood everywhere and they enjoy doing this. The first time I seen it, I was only 7 years old and I can still remember how I was terrified that day. The last time I seen this tradition, I was around 15 years old and a person was doing 'Gheme zani' on his one year old son. I told that person that you might hurt your son and he might be died for what you are doing to him. My father got angry with me that I talked to that person and he told me that he should do that to me when I was one year old as well and if he would do that, I would be a devoted Muslim. From that time, I had many issue with my father and I was doing anything not to go with him to Mosque or any other Muslim ceremonies.

   I had to do all my prayers from the age of ten. The Islamic rules require men to start their religious obligations at the age of 15, but my father forced me to do all my daily prayers and fast during month of Ramadan from when I was 10 years old. I remember that I had to wake up early in the morning for obligatory prayers and I had to fast during Ramadan and I could not eat for the whole day. I hated doing all those religious obligations.

   I also had same issues in the society too. At school and after that when I was doing my compulsory military service, I had to keep up with Islamic rules. I had to participate in prayers in school and we had to memorise Quran. I remember that my teacher slapped me in the face when I was only 13 years old after I spelled a word wrong in Quran. If my teachers were not happy with my Islamic behaviour. I would receive lower marks. When I was 18 years old, I started to do my compulsory military service. I had my worst time during my compulsory military service. During my compulsory military service, I noticed how Mullahs and other Muslim leaders are misusing people's faith to reach power and wealth. They would do anything they want in the name of Islam. Everyday, they would tell us that we need to be ready to fight against Islam's enemies.

   I did not like Islam, but Islamic regime of Iran and the experiences I had in Iran made me to hate Islam. During those years, I found out more about Islam and I realised that I could not accept Islam as my religion, but still had to pretend that I am a practicing Muslim in the society. I had a lot of questions in my mind that could not be answered in Islam. Allah for Muslims was like a dangerous boss who they would not want to have an issue or conflict with, otherwise they would be burnt in the hell. I did not want to end up begging everyday and live my life in fear rather than joy. I renounced Islam and lived without religion for many years.

   When I renounced Islam and I stopped practicing Islam at home, I had many arguments with my father in that regards. For instance, I had arguments with my father in regards to Islamic superstitions once. I was telling him that how he could believe that Muhammad flew to the heaven on a winged donkey and he told me that I should not disrespect God's prophet. I told him that Muhammad is not a prophet and he just created Islam in order to reach power, wealth and have sex with numerous women (Muhammad had more than 40 wives including 9 years old girls). He started to beat me with his belt and threw me out of his house and told me that I am not his son anymore. I went to my uncle's place and stayed there for a while. I could not have a good relation with him after that incident and barely talked to him since then.

   I met my wife when I was 22 years old. It was the Islamic pressure in my family that made me to get married in that young age. I could not have any relationship with females outside marriage and when I met my wife, as her family was also strict Muslims, we had to get married. We had many differences and relationship issues and we got divorced after 3 years.

   I had many other issues as well. Financially, I was under a lot of stress and I did not have any good prospect for my future. It was even hard for me to pretend that I am a Muslim in the Iranian society where there was no human rights in an Islamic environment.

   I also had many other issues with Iranian government and participated in the anti-government demonstrations after Iranian presidential election in 2009. I was lucky that I was not arrested during those demonstrations. I was witness of harsh and violent behavior of Iranian authorities towards people who had different political view.

   I tried to keep my belief for myself in order to be safe in Iran. If any of the Iranian authorities knew that I am not a Muslim and I renounce Islam, I would be killed. However it was so hard for me to live in Iranian society and pretend everyday. The life was getting harder for me everyday and I could not live like that anymore. I could not pretend anymore. My father was still pushing me to be a Muslim person. I was always worried that authorities might arrest me one day and accuse me of acting against them. I knew that I should change something. I decided to leave Iran and go to another country.

   After researching about my options, I was told that I can go to [Country 1] and from there, come by boat to Australia. I went to [Country 1] and arranged with a smuggler and from there I risked my life and came to Australia by boat. I arrived in Australia [in] October 2009. When I was in [Country 1], the people smuggler asked about my case of protection and when I told him about the issues I mentioned in the above paragraphs, he started to laugh at me and told me that if I say those things to Australian authorities, I would be deported back to Iran straight away. He told me that if I tell Australian authorities that I am a stateless person, I would be given permanent visa without any problem. He told me that the only thing I should say is that I did not have any identity card nor any rights in Iran as I was not Iranian citizen. In that time, I would do anything not to go back to Iran. I thought to myself that I pretended to be a practicing Muslim for many years in Iranian society and I can pretend that I am a stateless person for a while. That wrong decision made my life miserable since that time. I was granted Australian permanent protection visa on 09 June 2010 and moved to Melbourne.

   I was not practicing Islam for some years, but I always have believed in God and I had something lost in my belief. I wanted something that can give me peace of mind, although Islam was not the answer. There was not much information about other religions available in Iran. In Islam, I was told that Islam was the most complete and most updated religion. I did not know much more about other religions. I was thinking that if the most updated religion is Islam, other religions should be worse than Islam. Also, the interpretation of Islam from other religion was in a way that Muslims could accept that Islam is the best religion. For instance, I was told in Islam that Jesus Christ was a prophet before Muhammad and Christians believe in three Gods and Bible was distorted.

   When I was in Melbourne, I was introduced to Christianity by one of my friends. At first, I was sceptical of all religions, but as I learnt more about Christianity, I realised that Jesus Christ is my true Saviour and Christianity is the right pathway of living which would lead to eternal life. I converted to Christianity in 2013 and since then I am attending Church services every Sunday and attending bible studies on a regular basis. My life has been changed from the time that I converted to Christianity. Jesus Christ has sacrificed himself for our sins and it is the most beautiful thing in the world. I am now sure that my God will guide me and help me as he promised. Everyday I learn new things about Jesus Christ and his teachings and I am using those teachings in my day to day life. As a person who was saved and found the true pathway, I talked a lot about Christianity to my friends and family and other people in Iran and Australia. I managed to take many friends of mine to the Church with me and their life has been changed too. I was also an active christian in social networking medias like [Social media] and evangelise Christianity to others.

   I am regretting my decision to provide those false information to the Australian authorities when I entered Australia. When I applied for the citizenship, I was interviewed and I wanted to reveal everything, but I did have the psychological power to do that and I was afraid of the consequences. After I received the Notice of Intention to Consider Cancellation of my visa a few days ago, I did not know what to do. I talked to my representative and decided to tell the truth. Despite the wrong information I provided to the department, I still have issue of going back to Iran and I was always been afraid of being deported back to Iran. I am now remorseful and regretful and will accept the consequences. My representative advised me that although I provided wrong information to the department, but I have made the right decision to come clean and clarify everything. He told me that I might be sent to the immigration detention, but if you have fear of returning back to Iran, the Department would not deport you back to Iran forcibly. He told me that the Cancellation power is a discretionary power and my visa might not get cancelled if the Delegate would be presented with the complete and truthful information.

   I am a good person and I am sure that I have never hurt anyone in my life and always tried to be helpful to others. I do not have any criminal history in Iran and Australia. I was never happy with anything in Iran. I had issues with Iranian government and Islamic and Sharia laws. There is no human rights there. Iranian government authorities will do anything to stay in power including killing its own citizens. As a Muslim born person, I had to pretend that I am a practicing Muslim in the society and I hated it. Here in Australia, I had everything I always wanted. I have freedom and without any fear, I practiced my own choice of religion, Christianity and talk about my religious belief. I have worked hard and received respect from Australian community. I am sure that my credibility would be questioned and ready to accept the consequence of my actions and will do anything to get back the trust of Australian government and Australian authorities. I beg for forgiveness and request with humbleness to the Delegate to use his discretionary power and not to cancel my visa.

   I am still afraid of going back to Iran and I think that if I forced to go back to Iran, I will be detained in the airport as the Iranian authorities might know about my conversion to Christianity and my Christian activities in Australia and I might be considered as a spy. They might understand later during interrogations and I will be tortured and persecuted and probably executed by Iranian authorities as anti-government and anti-Islam activist. I was also diagnosed with Hepatitis A and C from around four years ago and I was told by my doctors that there is no cure for my condition and I have to cope with it for the rest of my life. I hope the Delegate and Immigration department give me another chance by allowing me to stay in Australia as my life would be definitely in danger upon return to Iran.

1. On 30 July 2018 the Department Delegate sent an updated Notice of Intention to Consider Cancellation of the applicant’s visa under s107 of the Act (‘the second NOICC’) to the applicant.  In the second NOICC the Delegate set out the following:

   I consider there has been non-compliance with the following section of the Act:

   Section 101. Visa applications to be correct
   A non-citizen must fill in or complete his or her application form in such a way that:
   (b) no incorrect answers are given or provided.

   …
   Section 107A provides that failure to comply with subsection 101(b) of the Act in connection with your previous Protection visa application may be grounds for cancellation of your current Resident Return visa:

   Section 107A - Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
   107A. The possible non-compliances that:
   (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
   (b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
   include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

   Immigration History prior to lodging your Protection visa application

   You arrived on Christmas Island [in] October 2009 as an irregular maritime arrival (IMA).
   On 20 October 2009 you attended an Entry interview, stating your identity was [Alias] born [Date 2, Year 5], an Iraqi citizen. You also claimed your father’s name is [Mr A – Alias], you do not know his date of birth and he is deceased.

   On 26 November 2009 you submitted a written request for a Refugee Status Assessment (RSA), stating your identity is [Alias] born [Date 2, Year 5], an Iraqi citizen. You stated your father’s name was [Mr A – Alias] born [Year 1] and he was killed in [Year 6].

   On 17 December 2009 the delegate assessed you were not a refugee as defined in the Refugees Convention and not a person to whom Australia owes protection obligations. You were notified of this decision on 2 February 2010.

   On 8 February 2010 you sought Independent Merits Review (IMR) of that decision.

   On 6 April 2010 the review delegate assessed you as a refugee as defined in the Refugee Convention and a person to whom Australia owes protection obligations.

   On 7 June 2010 the Minister decided to exercise his discretion under section 46A of the Act to enable you to lodge a valid Protection visa application.

   Answers you provided to questions in your Protection visa application

   On 7 June 2010 you lodged an application for a Protection (subclass 866) visa. In part B of the application form 866 “persons included in this application and family composition” you provided the following answers (in bold):

   Question 11 Do any of the persons included in this application and named in question 1 have close relatives who are NOT IN Australia at the time of application?
   Yes – please see attachment
   In the attachment, you provided the following answer for this question:
   Parents, siblings/close relatives
   Family Name: [Mr A – alias family name]
   Given names: [Mr A – given name]
   Date of birth: [Year 1]
   Citizenship: Iraq
   Relationship status: Deceased
   Relationship to applicant 1: Father
   Country of residence: Deceased (killed in [Year 6])
   Family Name: [Ms C – alias family name]
   Given names: [Ms C – given names]
   Date of birth: [Year 1]
   Citizenship: Iraq
   Relationship status: Widowed
   Relationship to applicant 1: Mother
   Country of residence: Iran

   In part C of the 866 form titled “application for an applicant who wishes to submit their own claims to be a refugee” you provided the following answers (in bold):

   Question 1
   Family Name: [Alias family name]
   Given Name: [Alias given name]

   Question 7 Date of birth: [Date 2, Year 5]

   Question 8 Place of birth:
   Town/city: Najaf
   Country: Iraq

   Question 14 Your relationship status.
   Never married or been in a de facto relationship.

   Question 19 Your citizenship at birth:
   Iraqi by birth

   Question 32 Details of countries of former habitual residence or transit before arrival in Australia
   Please see attachment
   In the attachment your answered included:
   Country Date of departure Status If status was “other” give details
   Iraq [Date, Year 6] C left the country with my mother
   Status codes: C = citizen

   Question 38 Give full details of all the education you have undertaken (in any country)
   Total number of years: 0

   Question 40 Give details of your past employment
   (For the periods you were not employed, show the reason, eg studying, national service, in prison, etc)
   Please see attachment
   In the attachment you answered:
   From To Employer’s name and address or show Position/Occupation if studying, unemployed, in national service, in prison etc
   Sep [Year 15] Sep 2009 Working for [Mr I] in Tehran, Iran [Occupation 1]
   Sep [Year 14] Sep [Year 15] Working for various people in the Bazar, Working at the market Tehran, Iran
   Sep [Year 13] Jan [Year 14] Tehran, Iran, can’t remember name of restaurant Kitchen work in restaurant
   Jan [Year 9] Jan [Year 13] Tehran, Iran, can’t remember the name of employer [Occupation 2]
   Jan [Year 8] Jan [Year 9] Tehran, Iran, working for myself Selling things on the street

   Question 41 I am seeking protection in Australia so that I do not have to go back to (give name of country or countries):
   Iraq

   Question 42 Why did you leave that country?
   Please see attached statement

   Question 43 What do you fear may happen to you if you go back to that country?
   Please see attached statement

   Question 44 Who do you think may harm/mistreat you if you go back?
   Please see attached statement

   Question 45 Why do you think this will happen if you go back?
   Please see attached statement

   Question 46 Do you think the authorities of that country can and will protect you if you go back?
   If not, why not?
   Please see attached statement

   In the attached statement you provided the following information in relation to your answers to questions 41 to 46:

   Background

   • Your name is [Alias].
   • You were born in Najaf, Iraq.
   • Your ethnicity is Arab and your religion is Shia Muslim.
   • Your mother remains in Iran.
   • You do not have any brothers or sisters.
   • You were not married.

   Why you left your country

   • Your father was a practicing Shia Muslim and a strong believer.
   • Your parents were Shia Muslim and experienced troubles during Saddam Hussein’s regime.
   • Your father spoke against the regime and recited religious songs in front of crowds.
   • Your family fled from Karbala to Najaf, where you were born.
   • One night the Basi (Iraqi Intelligence) came to your house and took your father away.
   • A few days later the Basi returned to your house and told your mother they had killed your father, searched the house, took some books and your parents’ ID documents and threatened to return and kill you. They said your mother is not allowed to participate in any religious ceremonies to mourn for your father.
   • Your mother decided to flee to Iran when you were approximately 3 years old.
   • During your stay in Iran you had no identification documents and no recognition. Iranian authorities are looking for young boys to send to undertake military service. They interrogate young boys of your age and you have to show them some identification documents. Once the police were asking all the boys on the street and you saw them, they pointed at you to show them your identification documents but because you did not have any you ran away.
   • Your mother became very stressed and worried about your life because you are her only son, the only person who can provide for your mother but you have no rights in Iran.
   • You have always been a fugitive in Iran because every time you see the police you have to run away because you are living illegally in Iran.
   • You and your mother cannot return to Iraq because the authorities do not recognise you as citizens and your life in Iraq would be in danger.

   What you fear might happen if you return to your country.

   • If you return to Iran you would not be given a job or social benefits because the authorities do not recognise you and your mother as citizens.
   • You have no ID or passport and if you return they would question your identity because you have no documents to show them.
   • The authorities may accuse you of being a spy because you lived in a foreign country.
   • You would not be left alone and would be followed by the authorities.
   • You could not marry in Iran because you have no ID so your marriage would not be registered or recognised.
   • With regards to Iraq, you were 3 years old when you left there and have no family or documents to return there. The situation in Iraq is very insecure with a lot of suicide bombings occurring. You have no identity documents, therefore would have no rights there.

   Who you think will harm or mistreat you if you return

   • The intelligence service.
   • The Basij (Iranian paramilitary service).
   • Police forces which do not leave you in peace.

   Why you believe they will harm or mistreat you if you return

   • You have no documents and the intelligence police and Basij always check on young men of your age.
   • If they catch you, you have heard they will take you to prison and interrogate you.
   • Without identity documents you will get into trouble.

   Why you believe the authorities will not protect you if you return.

   • In Iran, because you have no ID the authorities will not protect you.
   • In Iraq, you were too young when your mother fled so have no identity documents and would not be recognised as Iraqi. You have lived most of your life in Iran and know no-one in Iraq.

   Based on the answers you provided and meeting all other relevant criteria, your claimed identity and claims for protection were accepted, and on 9 June 2010 you were granted a Protection visa.

   Subsequent information received by the Department, indicating the answers you provided on your Protection visa application were incorrect:

   In response to an earlier Notice of Intention to Consider Cancellation of your visa issued to you on 2 March 2018, you provided a statutory declaration signed 16 March 2018 (attached) declaring:

   • You provided the statutory declaration to clarify false information provided by you to the Department since your arrival in Australia.

   • Your real name is [the applicant], you were born on [Date 1, Year 4] in Tehran Iran and are an Iranian citizen by birth.

   • You do not have a right to citizenship or a right to reside in any other country.

   • Your father’s name is [Mr A] and he was born in Karbala, Iraq on [Date 1, Year 1]. He is still alive and lives in Tehran, Iran.

   • Your mother’s name is [Ms C] and she was born in Karbala, Iraq on [Date 2, Year 1] and currently lives in Tehran, Iran.

   • Your mother and father were expelled by Saddam Hussein’s regime to Iran when they were teenagers. They were able to manage to obtain Iranian citizenship by providing evidence of the Iranian citizenship of their ancestors.

   • You have two brothers and two sisters all of whom were born in Tehran. They are:

   Your older sister [Ms D] born [Date, Year 2].
   Your older brother [Mr E] born [Date, Year 3]. He lives in Australia but you have not had contact with him since 2014.
   Your younger brother [Mr F] born [Date 3, Year 5].
   Your younger sister [Ms G] born [Date, Year 7].

   • You, your parents and your siblings do not have any Iraqi documents, you are all only Iranian citizens.

   • You were previously married to a woman named [Ms H] (born [Date 1, Year 5]). You married her on [Date, Year 13] and were divorced on [Date, Year 15] due to relationship issues.

   • On your way to Australia the people smuggler asked regarding your claims for protection, you followed his advice:

   -If you tell that to the Department you will be returned to Iran.

   -To claim you are a stateless person without any identification, then you would be granted an Australian permanent visa very quickly.

   -To make your case simpler and not provide information regarding your siblings.

   -To tell the Department you are younger than your real age because Australia needs young people who can work more.

   -To provide the Iraqi version of your name, using your father’s name and your grandfather’s name and your tribal name in order to be recognised as a stateless person.

   • You studied up to year 12, then undertook and completed your compulsory military service between [Year 10] and [Year 11]. You subsequently worked in many different occupations in [Work sector] areas like [Occupation 1] and also as [an Occupations 2 and 3] in Tehran.

   You provided the following supporting documents (attached):

   • Iranian Birth Certificate number [number] issued on [Date 2, Year 4] by the Ministry of Interior, Iran (plus English language translation). The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on Departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger.

   It includes the following information:
   You were born in Tehran on [Date 1, Year 4].
   Your mother’s name is [Ms C – given name].
   Your father’s name is [Mr A – given name].
   You were married to [Ms H] on [Date, Year 13] and were divorced on [Date, Year 15].

   • Temporary Iranian National ID card number [number] issued by the Iranian Ministry of Interior in the name of [the applicant] (plus English language translation).

   • Military Service Completion Certificate number [number] issued by the Islamic Republic of Iran on [Date, Year 12] (plus English language translation). The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on Departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. You have confirmed your name is [the applicant]. The document states you commenced service on [Date, Year 10] and completed it on [Date, Year 11].

   From the above evidence I consider you did not comply with the requirements of section 101(b) of the Act because at the time you lodged your Protection Visa application the answers to the following questions were incorrect:

   • Part B, form 866 question 11 “Do any of the persons included in this application and named in question 1 have close relatives who are NOT IN Australia at the time of application?”

   You answered:
   “Family Name: [Mr A – alias family name]
   Given names: [Mr A – given name]
   Date of birth: [Year 1]
   Citizenship: Iraq
   Relationship status: Deceased
   Relationship to applicant 1: Father
   Country of residence: Deceased (killed in [Year 6])

   Family Name: [Ms C – alias family name]
   Given names: [Ms C – given names]
   Date of birth: [Year 1]
   Citizenship: Iraq
   Relationship status: Widowed
   Relationship to applicant 1: Mother
   Country of residence: Iran”

   I consider this is incorrect because in your statutory declaration dated 16 March 2018 you declared:

   Your father’s name is [Mr A], he was born on [Date 1, Year 1], is alive and is an Iranian citizen only.
   Your mother’s name is [Ms C], she was born on [Date 2, Year 1] and is an Iranian citizen only.
   You have four siblings:
   Your older sister [Ms D] born [Date, Year 2].
   Your older brother [Mr E] born [Date, Year 3].
   Your younger brother [Mr F] born [Date 3, Year 5].
   Your younger sister [Ms G] born [Date, Year 6].

   Therefore I consider you provided incorrect answers regarding your parents’ names, their month and day of birth, their citizenship, and your father’s country of residence.

   I also consider your answer was incomplete and therefore incorrect, because you did not list any of your four siblings.

   • Part C, form 866 question 1 “Family Name / Given name”.

   You answered “[Alias]”.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared this was an Iraqi version of your name, using your father’s name and your grandfather’s name and your tribal name, which you provided the Department at the advice of the people smuggler, in order to be recognised as a stateless person.

   In your statutory declaration you declared your real name is [the applicant].

   In support of your statutory declaration you provided a copy of an Iranian birth certificate issued [Date 2, Year 4]. The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. The document states your name is [the applicant].

   I consider your name at the time you provided the answer to this question, was [the applicant].

   • Part C, form 866 question 7 “Date of Birth”.

   You answered “[Date 2, Year 5]”.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born on [Date 1, Year 4]] and had provided this incorrect date of birth to the Department at the advice of the people smugger, in order to be recognised as younger than you really are, because Australia needs young people who can work more.

   In support of your statutory declaration you provided a copy of an Iranian birth certificate issued [Date 2, Year 4]. The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it considerably younger. You advised [the applicant] is your real birth name. The document states your date of birth is name is [Date 1, Year 4].

   • Part C, form 866 question 8 “Place of Birth”.

   You answered “Najaf, Iraq”.

   Based on the evidence above, I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and had provided this incorrect place of birth to the Department at the advice of the people smuggler, in order to be recognised as stateless and to enhance your chances of being granted an Australian visa.

   In support of your statutory declaration you provided a copy of an Iranian birth certificate issued [Date 2, Year 4]. The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. You advised [the applicant] is your real birth name. The document states your place of birth is Tehran, Iran.

   • Part C, form 866 question 14 “Your relationship status”.

   You answered “Never married or been in a de facto relationship”.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were previously married to a woman named [Ms H] (born [Date 1, Year 5]). You claimed you married her on [Date, Year 13] and were divorced on [Date, Year 15] due to relationship issues.

   In support of your statutory declaration you provided a copy of Iranian Birth Certificate number [number] issued on [Date 2, Year 4] by the Ministry of Interior, Iran (plus English language translation). The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. You confirmed [the applicant] is your name. The certificate includes reference to your marriage to [Ms H] on [Date, Year 13] and your divorce from her on [Date, Year 15].

   • Part C, form 866 question 19 “Your citizenship at birth”.

   You answered “Iraqi by birth.”

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth and not held citizenship or the right to reside in any other country.

   In support of your statutory declaration you provided a copy of an Iranian birth certificate issued [Date 2, Year 4]. The document is in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. You advised [the applicant] is your real birth name. The document states your place of birth is Tehran, Iran, supporting your claim to have acquired citizenship of Iran by birth.

   • Part C, form 866 question 19 “Details of countries of former habitual residence or transit before arrival in Australia”.

   Your answer included:

   “Country Date of departure Status If status was “other” give details
   Iraq [Date, Year 6] C left the country with my mother
   Status codes: C = citizen”

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth and not held citizenship or the right to reside in any other country.

   I consider you did not live in Iraq from your birth to the year [Year 6], as suggested in your answer to this question.

   • Part C, form 866 question 38 “Give full details of all the education you have undertaken (in any country)”.

   You answered: total number of years, “0”.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you undertook schooling in Iran through to completion of year 12.
   I consider the correct answer should have been “12”.

   • Part C, form 866 question 40 “Give details of your past employment

   (For the periods you were not employed, show the reason, eg studying, national service, in prison, etc)”.
   You answered providing details of various employment between January [Year 8] and September 2009.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you studied up to year 12, then undertook and completed your compulsory military service between [Year 10] and [Year 11].

   In support of your statutory declaration you provided a copy of an Iranian Military Service Completion Certificate in the name of [the applicant], with a photo which appears to strongly resemble the images of you held on departmental records with your Protection visa application and citizenship applications, albeit it is considerably younger. You have confirmed your name is [the applicant]. The document stated you commenced service on [Date, Year 10] and completed it on [Date, Year 11].

   • Part C, form 866 questions 41 - 42 asked which country you are seeking protection from and why you left.

   You answered you were seeking protection from both Iran and Iraq, specifically:
   Iraq
   You and your mother fled Iraq because your father spoke against the regime and was killed by the Basi, the Basi went to your house to tell your mother they had killed your father, searched your house and took your parents’ ID documents and threatened to return and kill both you and your mother.

   I consider your answer is incorrect because:
   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth. You also declared your father was expelled from Iraq to Iran when he was a teenager and he is still alive.

   I therefore consider your father was not killed by the Basi, he was not in Iraq at the time you were three years old and the circumstances you claim to have occurred in Iraq which you claim was the trigger for you and your mother fleeing in [Year 6] did not occur.

   I therefore consider at the time you answered this question you did not genuinely fear returning to Iraq because you did not have to return there. You were at the time, and continue to be, an Iranian citizen, so have the right to return there.

   Iran
   You left Iran because during your stay there you had no identification documents and no recognition, were a fugitive and every time you saw the police you had to run away as you were living illegally there.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you had claimed to be stateless at the advice of the people smuggler in order to enhance your chances of being granted a visa. You declared you were born in Tehran, Iran and have been an Iranian citizen since birth. You declared your mother and father were able to attain Iranian citizenship through their heritage, after being expelled to Iran as teenagers.

   I consider at the time you answered this question you and your family were living in Iran as Iranian citizens so were not living there illegally or undocumented, so did not fear returning there due to having no documents or recognition there.

   • Part C, form 866 question 43 asked what you fear may happen to you if you return to that country.

   You answered you are afraid to return to Iran because:

   If you return to Iran you would not be given a job or social benefits because the authorities do not recognise you and your mother as citizens.

   You have no ID or passport and if you return they would question your identity because you have no documents to show them.

   The authorities may accuse you of being a spy because you lived in a foreign country.

   You could not marry in Iran because you have no ID so your marriage would not be registered or recognised.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you had claimed to be stateless at the advice of the people smuggler in order to enhance your chances of being granted a visa. You declared you were born in Tehran, Iran and have been an Iranian citizen since birth, and that your parents have been Iranian citizens since they were teenagers. You also declared you were previously married in Iran to a woman named [Ms H] (born [Date 1, Year 5]) whom you married on [Date, Year 13] and divorced on [Date, Year 15] due to relationship issues. You also declared that after completing your compulsory military service in Iran you worked in numerous jobs prior to travelling to Australia.

   I therefore consider if you return to Iran you would be recognised as an Iranian citizen, so you would be eligible to be employed or have access to social benefits as every other Iranian citizen is.

   I consider you would also be able to legally marry in Iran, noting you have previously done so.

   You answered you are afraid to return to Iraq because:

   You were three years old when you left there and have no family or identity documents so would have no right to live there.

   The situation in Iraq is very insecure with a lot of suicide bombings occurring.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth.

   I therefore consider at the time you answered this question you did not genuinely fear returning to Iraq because you did not have to return there. You were at the time, and continue to be, an Iranian citizen, so have the right to return to Iran.

   • Part C, form 866 questions 44-45 asked who you think may harm/mistreat you if you return and why.

   You answered if you return to Iran, you think the Basij will persecute or deport you because you are stateless and have no right to reside in Iran; the intelligence service may accuse you of being a spy because you lived in a foreign country; and the police force will not leave you in peace because you are undocumented and stateless with no right to reside in Iran.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth.

   I consider you did not live in Iran as an undocumented person, but lived with your family as documented Iranian nationals. Therefore, it is open to you to return to live in as a documented citizen so you do not genuinely fear having to return there.

   You answered if you return to Iraq, you think you will have no right to reside there so may be removed by the Iraqi authorities and the situation in Iraq is very insecure with a lot of suicide bombings occurring.

   I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth.  I therefore consider at the time you answered this question you did not genuinely fear returning to Iraq because you did not have to return there.
   You were at the time, and continue to be, an Iranian citizen, so have the right to return there.

   • Part C, form 866 question 46 asked whether you think the authorities of that country can and will protect you if you return.

   You answered:

   In Iran they will not protect you because you have no identification.

   In Iraq you were too young when your mother fled so have no identity documents and would not be recognised as Iraqi. You have lived most of your life in Iran and know no-one in Iraq.

   Based on the above evidence, I consider this is incorrect because:

   In your statutory declaration dated 16 March 2018 you declared you were born in Tehran, Iran and have been an Iranian citizen since birth.

   I therefore consider at the time you answered this question you did not genuinely fear returning to Iraq because you did not have to return there.

   You were at the time, and continue to be, an Iranian citizen, so have the right to return there as a documented Iranian citizen.

   Therefore your visa is being considered for cancellation under section 109 of the Act.

1. On 13 August 2018 the applicant’s representative provided a written submission in response to the second NOICC.  In the submission the representative sets out the following:

   A new NOICC was sent to the applicant on 30th of July 2018 and basically the applicant’s statutory declaration (which was provided in response to the first NOICC) was used to conclude that the applicant did not comply with the requirement of subsection 101(b) of the Act in connection with his previous visa application, because he provided false information in that visa application.

   I am writing this submission to you to explain [the applicant]’s comments on the information provided in this new NOICC and to provide supporting documents. [The applicant] prepared a statutory declarations in response to the first NOICC on 16th of March 2018 and explained that he accepts that the ground for cancellation exists and he provided true information to the Department and provided his genuine identity documents. [The applicant] attested his remorse and explained about why false information provided by him to the Department when he arrived to Australia and he provided his reasoning about the delay in providing the correct information and identity documents to the Department. As the applicant accepts that he did not comply with the with subsection 101(b) of the Act in connection with his previous protection visa application, ground for cancellation exists. However, as the cancellation power under section 109 of the Migration Act 1958 is discretionary and that ground does not require mandatory cancellation , the Delegate must proceed to consider whether the power to cancel the visa should be exercised. I provided my submissions on why [the applicant]’s visa should not be cancelled under this Cancellation power and I provide those reasoning again with this submission. I appreciate if the respectful Delegate can take these information in his consideration.

   The following documents were provided in the response to the past NOICC:

   1- [The applicant]’s Statutory Declarations dated 16 March 2018

   2- Colour scanned copies of Birth Certificate plus certified copies and translation of [the applicant]

   3- Colour scanned copies of Temporary National ID card plus certified copies and translation of [the applicant]

   4- Colour scanned copies of Military Service Completion Card plus certified copies and translation of [the applicant]

   5- Certified copies of identity documents of [the applicant] plus translations

   6- Colour scanned copies of Pension card and current ID and change name certificate under name of [the applicant – changed name]

   7- Form 1022 signed by [the applicant]

   Again, I provided my submission in the following paragraph that I believe that although, the ground for cancellation exists, why his visa should not get cancel and for more clarification, I requested that non-refoulement obligations assessment process needs to be conducted before making any decision to cancel the applicant’s current visa. I appreciate if all the documents and information provided with this submission and with the response to the past NOICC, would be considered by the respectful Delegate.

   Why we think the applicant’s visa should not be cancelled

   [The applicant] provided a statutory declarations dated 16 March 2018 and confirmed that in fact he is Iranian citizen and has Iranian identity documents and provided those documents which confirm his identity. Those identity documents which are [the applicant]’s Birth Certificate, his National Identity card and his Compulsory Military Completion card are genuine documents and can confirm the identity of [the applicant]. Those documents can be checked for the authenticity by the Department (Colour scan copies, Certified copies and translations are attached to this submission). [The applicant] confirms that he is not Iraqi citizen and does not have any Iraqi Documents. [The applicant] provided his sincere remorse and regret in regards to the false information provided by him to the Department. [The applicant] admitted in his recent statutory declarations that he was not truthful with his dealing with the Department in the past and provided the correct information and genuine identity documents with this submission. [The applicant] provided the correct information in his recent statutory declaration and provided his reasoning on why he did not complied with subsection 101(b) of the Act.

   [The applicant]’s parents were born In Karbala, Iran and was expelled to Iran by Saddam Hussein’s regime. He had some issues in Iran which he explained in his recent statutory declaration and decided to come to Australia by boat. [The applicant] went to [Country 1] and came to Australia using a people smuggler in October 2009. [The applicant] was encouraged by the people smuggler before arriving to Australia to tell the Australian authorities that he is an undocumented stateless person. He was told by the people smuggler that he would be sent back to Iran straight away if he provides the correct information about his protection claims to the Australian authorities. I appreciate if that statutory declarations dated 16 March 2018 would be noted before continuing this submission.

   [The applicant] confirmed that he was not aware of the immigration rules before coming to Australia and once he provided the false information about being undocumented stateless person, he had to provide other false information to cover first untrue information. [The applicant] wanted to correct the information he provided to the Department while he was in Australian detention and after being refused for the first time (Around February 2010). However, he was advised by other asylum seekers that if he admit that he provided false information upon arrival to Australia, he had to spend the rest of his life in Australian detention centres. [The applicant] contacted me a few days ago and told me about his identity documents and about the false information he provided before and told me that he would like to clarify everything and provide the correct information about himself. He told me that he cannot hide the truth anymore and he wants to confess. He told me that he had many nightmares in the past 9 years and he wants to come forward and provide correct information about himself. He told me that he has been always a law abiding citizen and he hates lying as a Christian. He was remorseful about the wrong information he provided in the past and told me that he cannot continue this “misery” according to him. He regrets his past attitude in dealing with the Department and accept his own actions and ready to bear the consequences.

   As the ground for cancellation under Section 109 of the Migration Act do not require mandatory cancellation, it is in the description of the Delegate to consider whether the power to cancel the visa should be exercised. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.

   However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Delegate would regards to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

   …

   The purpose of the visa holder’s travel to and stay in Australia

   [The applicant] explained with details in his recent statutory declarations on why he left Iran and came to Australia in 2009. He had religious belief issues with Iranian authorities and his own father and he participated in after 2009 presidential election demonstrations against the Iranian government. He was a Shia Muslim born person who renounced being a Muslim and feared  that Iranian authorities might understand that. He had issues with his own father who was a religious person and participated in demonstrations against the government. He had fear of being harmed by Iranian government authorities and left Iran and came to Australia. He converted to Christianity when he came to Australia and has been an active member of his Church for around 5 years now. He evangelised Christianity and Iranian authorities might understood about his conversion to Christianity and his Christian activities in Australia and his life would be in danger upon return to Iran. [The applicant] is a well-known Christian convert and anti-Islam and ant-Iranian government activist amongst Iranian community in Australia.

   The extent of compliance with visa conditions

   [The applicant] always abide all his visa conditions. Other than the fact that he provided false information upon arrival in Australia, he abided all the Immigration rules and followed the regulations in that regards. There are no information known to me that [the applicant] breached the conditions of his Visa.

   The degree of hardship that may be caused to the visa holder and any family members

   [The applicant]’s life is in danger upon return to Iran and he cannot go back to Iran. [The applicant] does not have citizenship of any other country and is not able to go to any other country. [The applicant] has been involved in the Christian Activities and anti-Islam and anti-Iran governmental activities in Australia and his life would also be in danger upon return to Iran. Also, [the applicant] was diagnosed with Hepatitis A and C from around 2013 and he was told by his doctors that there is no cure for his condition and he has to cope with it for the rest of his life. [The applicant] is pensioner in Australia and completely supported by Australian government. Although, [the applicant] is covered financially by centrelink, he is working part time as [an Occupation 4] to cover cost of his living. [The applicant]’s health condition would make a further issue if he would be forced to return to Iran.

   The circumstances in which the ground for cancellation arose

   As [the applicant] admitted recently, he provided false information to the Department for his past visa applications. [The applicant] provided detailed information in his recent statutory declarations

   that he was influenced by people smuggler and as he did not have any information about Immigration law and Australian legislations, he used the people smuggler’s recommendations and provided false information upon arrival to Australia. Fear of being deported back to Iran, the country he fears to be harmed upon return, made him reluctant to provide the correct information to the Department upon his arrival. Later, he was afraid of the consequences of admitting that he provided false information upon his arrival and he continued confirming those false information on his dealings with the Department until this point. He is remorseful and he confirmed under oath in his recent statutory declarations that he will provide correct and true information from now on. I understand that the his past untruthful dealings with the Department has negative impact on [the applicant]’s credibility. However, I believe that his remorsefulness and his admission to come forward and telling the truth needs to be considered.

   The visa holder’s past and present behaviour towards the Department

   Instead of continuing to provide false information to the Department, [the applicant] accepts that his past behaviour towards the Department was incorrect and accepts his wrong actions. He admitted that he is ready to bear the consequences. I believe that his self-reproach and remorsefulness needs to be considered. Although, it might be considered that [the applicant] provided many false information to the Department, but all of those false information can be considered as one course of action. As [the applicant] stated in his recent statutory declaration, he was encouraged by people smuggler to provide false information about his identity and statelessness upon his arrival to Australia and the other false information were provided to cover first false information. Although I accept that the false information provided by [the applicant] has negative impact against his character and can question his credibility, However, the fact is that the visa holder is currently remorseful and provided complete and correct information. He  is ready to bear the consequences and is ready to provide any information requested from him truthfully. [The applicant]’s current behaviour is to provide true and correct information and he is ready to participate in any procedure to gain back his credibility.

   Whether there are mandatory legal consequences to a cancellation decision

   The cancellation will cause hardship for the applicant. Should the cancellation occur, the applicant will have his permanent residence revoked. The PAM3 note, this does not automatically mean that the applicant will be removed from Australia, there is a pre-removal process in place that may be undertaken. However as the applicant is an Illegal Maritime Arrival (IMA), the cancellation of the visa has the effect of barring the applicant from making any further visa application, pursuant to s46A(1), so he is not entitled to a Bridging Visa, and is also barred from pursuing a further protection visa pursuant to s48(1B). Upon cancellation, given he is not entitled to apply for a visa, [the applicant] would become an unlawful non-citizen and liable to be detained under s189, and liable for removal under s198. As [the applicant] cannot go back to Iran and cannot be removed from Australia consistently with Australia’s non-refoulement obligations, indefinite detention is a possible consequence of the cancellation decision.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

   Non-refoulement obligations

   As I mentioned in the above paragraphs and [the applicant]’s recent statutory declarations, [the applicant]’s life would be in danger upon return to Iran. I believe that non-refoulement obligations assessment process needs to be conducted, before making any decision to cancel [the applicant]’s visa. [The applicant] stated in his recent statutory declarations that if he forced to go back to Iran, he will be detained at the airport as the Iranian authorities might know about his conversion to Christianity and his Christian activities in Australia and they might understand later during interrogations. He also might be considered a spy and be charged for espionage as he was not in Iran for a long time and it is not possible to provide acceptable explanation as he used a different ID in Australia. He also stated that he will be tortured and persecuted and probably executed by Iranian authorities as anti-government and anti-Islam activist.

   Any other relevant matters

   [The applicant] has been a respectful member of the community and worked hard. His values are considered by other members of Australian community and he helps anyone around him which are in need. He suffered from Hepatitis A and C in the past few years and his health condition would be an issue if his visa to be cancelled and he would be detained in Immigration detention.

   I appreciate if the respectful Delegate can consider the situation of the applicant and the fact that he has been in Australia for nearly 9 years.

   …

   Delegate’s Decision

2. The Delegate found that the applicant had provided incorrect information in his Protection visa application and had therefore not complied with s 101(b) of the Act.

3. The Delegate considered the discretionary factors and decided to exercise her discretion to cancel the applicant’s visa under s 109 of the Act.

   Information to the Tribunal

4. On 22 October 2019 the applicant’s agent provided the following written materials to the Tribunal:

   -A written submission by the agent setting out reasons why the applicant’s visa should not be cancelled.

   -A letter date 9 October 2019, from [Pastor I] of [Church] in Sydney, confirming the applicant’s involvement in a Melbourne church since 2013, his attendance and involvement in the Pastor’s [church] since early 2017, the applicant baptism in May 2018, his participation in a bible study group and the church Persian community, and his volunteer work as a greeter of people to the church.

   Tribunal Hearing, 23 October 2019

5. The applicant appeared before the Tribunal (differently constituted) on 19 October 2019. The following is a summary of the hearing recording:

   a.The Tribunal informed the applicant of the existence of a Department non-disclosure certificate regarding specific folios of the department files, and of the non-disclosure grounds contained in the Certificate. The Tribunal informed the applicant it considered the Certificate to be valid and invited submissions on this from the applicant and his representative. The Tribunal informed the applicant that the substance of the information had been put to the applicant in the first NOICC, relating to procedures regarding how the Department had arrived at its conclusions. The representative responded that they had all the documents from the first notice and he believed the information caused the applicant to confess.  The applicant responded he understands but asked if the Certificate was good or bad. The Tribunal responded that it was not about ‘good or bad’ as it was about the procedures regarding how the Department arrived at conclusions that the applicant had provided incorrect information.  In the first NOICC sent to the applicant on 2 March 2018 the Department outlined why they believed the applicant had provided incorrect information. The Department had investigated the applicant as it suspected the applicant had provided incorrect information, so they investigated his circumstances and then initiated cancellation processes.  The applicant responded okay.

   b.The applicant confirmed that he had provided incorrect information in his Protection visa application.  He regrets this and asks Jesus to forgive him.

   c.He provided incorrect information because when he left Iran he met someone in [Country 1] who asked him what the applicant wants to do and the person laughed.  The man was a people smuggler. He was Kurdish and could speak Persian and Arabic. He said if you say these things they will return you on the first day.  When he learned the applicant’s parents were born in Iraq he said the applicant could claim to have also fled Iraq with them.  He was a very kind and nice man and the applicant trusted him.  He told the applicant to keep to short answers when he came to Australia because they would ask the same questions over and over again.  He told the applicant that people are recognised by the names of their fathers and grandfathers and the applicant could do the same, because this is how people are identified in Iraq.  They can also use the name of their tribe which is why the applicant chose to use his tribal name.

   d.The applicant had no option to return to Iran, he had to succeed. When the Kurdish man told the applicant these things the applicant was really scared and did not know what he could do. He had no other option than to trust him as he was a person who had sent lots of people previously.  The applicant had put everything he had behind when he left Iran.  He had no option to go back.  Because the applicant had no other information he had no option but to trust the Kurdish person. The Kurdish man told the applicant it would make it easier for him to make everything shorter.

   e.The applicant changed his name but not because he had done something wrong or illegal. He just wanted an outcome.

   f.The applicant is a Christian. He belongs to the Protestant faith.  He has been involved in Christian related activities in Australia since 2013.  He was asked what evidence he has of this and the applicant responded what sort of evidence should he have, he went towards Christianity but without the intention of gathering evidence.  He has accepted Christianity with all his heart.

   g.The Tribunal put to the applicant that the letter from [church] referred to the applicant as being part of the church since 2017 and being baptised in May 2018.  It also stated the applicant was part of a church in Victoria since 2013.  The applicant told the Tribunal that the author of the letter knows this because the applicant gave the information he had to a leader who gave it [Pastor I].  The Tribunal put to the applicant that his baptism was subsequent to the NOICC.  The applicant responded that he was baptised twice. The first time he really hated himself and sought help from Jesus to tell the truth.  He felt guilty and wanted to be baptised again to start a new beginning.  The first time it wasn’t really from his heart.  The letter was based upon the information [Church] knew about the time he was baptised there. They did not write about his first baptism because it was not done by [Church]. They did not know about it because nobody asked him.  The applicant only asked if someone could be baptised twice and they said yes so he did. The first time he was baptised was in 2013.  It was at the Uniting Church in Melbourne.  He does not have a baptism Certificate from them.  He did not know he had to obtain one.  He didn’t ask for a Baptism Certificate the second time but it was sent to him.  When he was in Melbourne he moved a lot. Maybe they sent him a baptism certificate then but he doesn’t know.  He didn’t know he would get a baptism certificate.

   h.Christianity has shown the applicant the path of life. Before he left Iran he always believed in God, but the religion there made him suspicious about religion.  He is talking about Islam.  Islam is different from Christianity.  There are lots of differences. About 90% of people in Iran are Muslim.  In Islam they believe that Mohamed is the last Prophet and that Islam is the most complete religion. They believe Jesus is a Prophet and not God. Christians believe Christianity is not a religion but a way of life. It is the only path to the holy father. In Islam if someone does something bad to you, you do something bad to them. In Christianity that is not the case. Christianity is one word, kindness.  In Christianity everything is done with kindness.  They believe once a person becomes a Christian all their sins will be forgiven. In Islam it is not like that they say whatever you do in life you will be judged in the after life. 

   i.The applicant did not want to be a Christian while he was in Iran.  In the way the applicant grew up they will always talk about religion.  As he grew up he learned what they said was not correct. In Iran, with force they had to accept that religion. Slowly, slowly he learned this was not correct.  He always believed in God. He saw that in the name of Islam they were lying and doing anything to get power and wealth and were just playing with the religion.  He practiced some Islam in Iran because he was forced to.

   j.From the age of 21 he stopped everything. When he did his military service or when he was with his parents he had no other choice than to do what he was forced to do. He would go to a mosque and other things. Unfortunately his father is a religious man.  The applicant did not have the same ideas as his father.

   k.The applicant did not renounce Islam in Iran. The Tribunal put to the applicant that he had previously written in his Statutory Declaration that he renounced Islam and left Iran.  The applicant responded he did not do this in public but he mentioned it to his family.

   l.In Christianity a commandment tells you not to tell a lie.  The applicant was asked to go for a citizenship interview and he had no information.  He regrets that he did not give the correct information then.

   m.The Tribunal asked the applicant about his anti-government activities in Iran. The applicant responded that when he saw the situation there he saw there was no mercy they just want to make their position stronger.  The applicant would speak so much bad about the government they would cause him [Nickname]. ‘[Foreign language word]’ means ‘[English translation]’.  This was his nickname because he spoke so much about [that topic].

   n.The applicant would sit with his friends and tell the truth and that was obvious. In 1388 at the election for Ahmadinejad the applicant attended demonstrations and would see how they act towards people, attacking and beating them and lots of people were killed.  Even though his father was against it he felt the need to support his country.

   o.The Tribunal asked why the applicant had not made these claims when he applied for a Protection visa, if they existed. He responded that before he left Iran he had no information about what he should do or how he should talk.  They did not ask him anything so the applicant did not explain. They just asked the applicant about his parents.

   p.The Tribunal put to the applicant under s 359AA that in his IMR matter he was interviewed in 2010, but there is no apparent disclosure that the applicant was involved in any political activities or Christianity. The applicant responded that because at that time his case was based upon lies he had to continue with them.

   q.The Tribunal asked how it could be confident the applicant was being truthful now.  The applicant responded he accepts he gave false information and regrets that.  Now he is telling the truth and he feels Jesus.

   r.The applicant is single. He has no children. His paternal aunt and her children are in Australia. He lives by himself. He used to work as [an Occupation 4] but not now.  He supports himself from his savings.  His parents are alive in Iran.  He has two sisters and two brothers in Iran.   One of his brothers is in Australia.  He has been here for a few years.  The applicant does not know what visa his brother has, his only information is from his mother.

   s.The applicant knows he is guilty.  His brother’s child is here and needs to go to school. The applicant’s wrong is all his own fault.  The applicant’s mother told him that his brother’s child is not going to school. The applicant is not in contact with his brother.

   t.The applicant has hepatitis A and B, not C. He was in hospital in Melbourne in a bad situation.  All his body was yellow.  His situation is still not stable.  He is not taking medication. There is no medication for Hepatitis B. In Sydney he has not seen any doctor for more than a year because of the cancellation.  The Tribunal put to the applicant country information that health care was a priority expenditure in Iran and that health care was available in Iran.  The applicant responded that his problem was due to how he is now.

   u.There were two different boats. After 11 days they arrived at Christmas Island and they found out that the other boat did not arrive. It gave the applicant the belief that someone is helping him and helped him to arrive.  Verses 15 and 16 of John in the Bible says you don’t choose me, I choose you.  He now sees there is a reason for why he is here today and that helps him.  He tries to help and invite people to the church. He went to Christianity and really believes in Jesus. If someone changes their religion in Iran they can be killed.

   v.The applicant has opened something in an app, ‘telegram app’, to help others to Christianity.  He did this quite recently.  He has been publishing things on [Social media] for a few years. The applicant opened the [Social media] account towards the end of 2013.  The applicant will submit this evidence to the Tribunal.  He will send it after the hearing.

   w.Because he has been saved himself he is saving others. About one week before the hearing he started the telegram application. He did not do this because of the Tribunal hearing, it was to help other people. He was not aware previously he could have one. It is used in Iran.

   x.The applicant’s [Social media] and Telegram App accounts can be accessed by other users.  He uses the name ‘[User name 1 – based on applicant’s changed name]’ for his [Social media] account and just ‘[User name 2 – applicant’s changed given name]’ for his Telegram App account.

   y.He sees Australia as his own country.

   Post-Hearing Submission

1. On 24 October 2019 the applicant’s agent provided the following written materials to the Tribunal:

   -Screen shots of Christian messages on a mobile phone.

   -Screen shots of the applicant’s [Social media] pages showing postings about Christianity.

   Tribunal Hearing, 31 May 2022

2. The applicant appeared again before the Tribunal (as currently constituted) on 31 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

3. At the hearing the applicant submitted the following written materials:

   -A letter from [Pastor I] of the [Church], dated 17 May 2022, stating he knows the applicant who has been part of the church since 2017. The applicant was baptised in May 2018. He participated in a bible study group and is involved in a Persian cultural group at the church. He volunteered in the past to welcome new people to the church.  The applicant regularly attends the church services on the weekends.

   -A screenshot of a youtube video about the differences between Islam and Christianity.

   -Screenshots of [Social media] posts about Christianity dated in 2019 and 2016.

4. The following is a summary of the information provided by the applicant at the hearing:

   a.He lives by himself in [Suburb 1].

   b.He has legally changed his name to [the applicant – changed name].

   c.He was born in Tehran, Iran on [Date 1, Iranian calendar] and is an Iranian citizen.

   d.He confirms that he provided incorrect information in his Protection visa application.  He did this because of advice from the smuggler.  He was scared of being returned back as he had no life in his home country and his condition there was pretty bad.  The smuggler was his relative so the applicant listened to him.

   e.Since childhood in Iran he was raised in a religious family and forced to be Muslim. He had problems with his father and the government in Iran. 

   f.He lived with his parents in Tehran until he married.  He then lived with his wife in another part of Tehran.  After he separated from his wife he moved back in with his parents where he lived until he departed Iran for Australia.

   g.He is a Christian. In about 2013 he adopted the Christian religion in Australia. 

   h.In Iran he was required to be Muslim regardless of his interest in Islam. When he was around 20 or 21 he developed a dislike for Islam and started to question it.  Since he was a child he had witnessed Islamic ceremonies like Muharram where people sometimes cut themselves with machetes. In Iran Islam is an instrument for people who practice it to be able to gain benefits and power. Islam in Iran contains practices which are forced like praying and fasting not by choice.

   i.The applicant believes in God but not necessarily how it is manifested in Islam.  There are so many things in Islam that don’t have an answer.  The applicant doesn’t understand why they have to follow what happened 1,400 years ago. In Iran he could not state his belief about what he thinks freely.  In Iran religion is part of the government and anything stated against the regime will be punished.

   j.When he arrived in Australia the applicant would go the church with his friends sometimes. Through his conversations with them and his own research, he found Christianity was the only way for him so that he could emancipate himself.

   k.Christianity does not force a person to believe it or not.  Its main topic is about love and kindness.  The main topic in Islam is about revenge, if someone does not follow Islam then revenge must take place.  He does not know if this is in the Koran, but it is his observation of Iran and the society.  He has not researched anything about Islam but he was taught about it at school.  He is not familiar with the teachings of the Koran.

   l.At school he was taught that the Prophet Mohammed is very pure and free of sin but He also had several wives and married a very young female, a girl.  So it is said He is pure with no sin but comparing His actions and deeds, it doesn’t match up.

   m.The applicant does not have any friends in Australia who are Muslims.  His friends are mostly from his work and his church. He has Iranian friends here but they are not Muslims.

   n.The applicant’s brother was Muslim in Iran but the applicant does not know about him anymore as they have only had contact in Australia once.  The applicant’s brother lives in Melbourne and they do not have a good relationship.  Their mindsets are very different. The applicant is very family orientated and his brother is the opposite.

   o.The applicant planned to come to Australia to apply for protection. If he hadn’t received the advice from the smuggler he would have put his real name in his Protection visa application. He would also have explained what happened to him in Iran, about the religion problem and his problems with the regime.  He would have said he didn’t have any religion.

   p.The religious problem he had in Iran was that his father pressured him to follow and practice Islam.  His father had pressured the applicant to pray and fast since the applicant was 10 years old.  He would take the applicant to the mosque and push him to pray and follow Islam. Willingly and unwillingly the applicant’s father would take him to the mosque. When the applicant was a teenager sometimes he and his father would argue and his father would throw the applicant out of the house.

   q.The applicant is more comfortable with his mother.  His parents are still living in Tehran.  His mother is old and is a bit sick.  The applicant only has contact with his mother, not his father.

   r.After the applicant married he lived independently away from his father.  However the applicant’s wife was religious and put the applicant under pressure.  She would tell him he must pray and go to the ceremonies. The applicant would say no and this caused them to separate. After the applicant separated from his wife he returned to his parents’ home and he would argue with his father about religion.  The applicant’s father is a religious person and read the Koran very loudly at home.

   s.The applicant has two sisters and two brothers.  His siblings were each religious. The applicant discussed religion more than anyone and argued. 

   t.The applicant’s parents lived in rented property so they were not happy about the applicant’s return back after his married life.  His father was against the separation.

   u.Apart from arguments with his father about religion the applicant had no particular problems with his family in Iran.

   v.The applicant’s problems with the regime in Iran were because he participated in a protest against the government about one year before he came to Australia.  The protest was about the economy. There were a lot of people in the protest and the riot police came.  It is a religious regime in Iran and it dictates what people have to do through religion.  Regarding the protest the applicant was scared because he noticed people were arrested. He was afraid to be spotted.  He heard that some people came to his family house at the time he was married but he is not sure who they were or if they were connected to the events.  His mother told him that two people came to the house and asked for him.  Nothing else happened.  When he was with his friends they would talk about problems caused by the regime and were in constant fear that someone would report them.

   w.The protest was in about [Year 14].  It happened near Azadi Square and all the people were in the street. The applicant did not participate in any other protests in Iran because they did not happen every day.

   x.Maybe his reasons would not have been adequate to get protection when he arrived but he has to tell the truth now.

   y.The applicant adopted Christianity in Australia because of his participation in church and his research which showed him that Christianity was the only way to reach happiness and liberation.  He found that being in the church and going through church education could give him peace.  He feels it deep in his heart and he got the answer from this emotion.  Anytime he seeks for it he can get the peaceful feeing.  He talks to God and asks Jesus for help.  Jesus is the son of God.

   z.He tries to teach others about Christianity. Two people have become Christian through the applicant.  They are [Ms K] and [Ms L].  [Ms K] is a work colleague.  He told her about going to church and the type of religious education he received.  She went to the applicant’s church with him once.  Since then the applicant has seen her at his church at other times.  This was before Covid, perhaps in 2018 or 2019.

   aa.[Ms L] is the applicant’s close friend.  They became friends in Melbourne and when the applicant moved to Sydney [Ms L] moved to Sydney too.  She became a Christian because she had no religion and she loves the applicant so he invited her to his church.  She became baptised there.  She loves the applicant a lot but they are just friends. [Ms L] is not the applicant’s girlfriend.  She would love to marry the applicant.  The applicant is afraid because of his situation.  [Ms L] is a citizen of [Country 2] but is a student in Australia. She is in [Country 2] currently but will return to Australia in about one week.

   bb.None of the applicant’s relatives are Christian.

   cc.The applicant practices his Christianity by going to church every weekend. He also used to be in a bible study group.  He tries to show his Christianity through his attitude and behaviour.  Religion is important to him because he thinks everyone needs to have a belief.  He also believes nothing is without reason and he has to prepare for after this life.  This is very important to him.

   dd.The applicant attends the [church] in [Suburb 2] every week.  He last attended it two weeks ago he thinks.  The Tribunal asked the applicant what happened at the service the last time he attended the church. The applicant responded that the pastor delivers a speech and sometimes the pastor changes and different people come to the church. Sometimes it is remote and they look at a television screen.  The Tribunal asked him to speak specifically about the last time he attended the church.  The applicant responded that first they sing a song and then a pastor comes in to deliver a speech.  The applicant can’t remember what the speech was about on the last occasion he attended.  They are about topics around forgiveness and kindness.  He has attended so many times he can’t remember the speech.  The Tribunal asked the applicant if he could recall any of the speeches he heard in church.  He responded he remembered the pastor talking once about helping people in Africa and showing them on a screen.  The Tribunal asked the applicant if the pastor ever spoke about Christianity or the bible at church. The applicant responded yes that every time they interpret a story of the bible.  He cannot remember the last bible story he heard at the church.

   ee.The Tribunal asked the applicant if he remembered any story from the Bible. The applicant responded yes there was a story of a prostitute who was forgiven by Jesus although a lot of people were not on good terms with the prostitute, but Jesus forgave them.  He likes that story because it has really influenced him.  He sees himself in the mirror as someone who has done a lot of bad things in his life yet Jesus forgave them.  Jesus did this because Christianity is the religion of love and kindness, even to your enemy.

   ff.He remembers another story in the Bible in which Jesus participates in a group and didn’t have enough wine so he made water into wine. He thinks that was Jesus’ first miracle.  It shows that Jesus is not an ordinary person, he is capable of miracles.  It relates to Christian principles of kindness and being hospitable.  His favourite verse is what you prefer not to be done to you, you should not do to others, or whatever you want for yourself you should expect from others.  That is 12:7 of Matthew.

   gg.The applicant has attended Bible classes in the past but for many years he has been in this situation.  He has a Whatsapp group but now he is getting behind.

   hh.Reading the Bible is quite important but due to being in his current situation he drifted away from studying it.  The Tribunal asked the applicant if he wanted to read the Bible. He responded that it is important to him but he is a little negligent because of his situation. The Tribunal asked the applicant if reading the Bible does not help him. The applicant responded that normally when he goes to the church he reads the Bible but not when he is at home.  The Tribunal put to the applicant that this indicates he doesn’t find the Bible helpful to him.  He responded that it is always useful but since Corona and his financial situation, and not receiving help from the government, he is not reading the Bible. He talks to God and Jesus.

   ii.He does not have a role in the church anymore. He was once a volunteer welcoming people at the gate.  He stopped because of the rotation of volunteers and Corona.

   jj.He does not know the address of the church he attended but he can draw how he gets there.  He gets a train to [station] then walks.

   kk.The Tribunal put to the applicant that the two letters from the Pastor were very similar.  The applicant responded that this was what the Pastor wrote.  The applicant explained his situation to the Pastor and asked him to write the letter.  The applicant spoke to the Pastor about two weeks ago.

   ll.The applicant cannot ask [Ms K] and [Ms L] to give evidence on his behalf because [Ms L] is back in her country and [Ms K] used to work with the applicant at the [Occupation 4] shop. [Ms L] is coming back to Australia next week. She is gone and the applicant has no contact with her. The Tribunal put to the applicant that he stated they attended the applicant’s church. The applicant responded that he hadn’t seen her a lot these days. She was going to church with her child.  None of them know of the applicant’s problem.  He didn’t tell them because it is a personal matter. He didn’t see a reason to let them know and didn’t want word to go around about him. [Ms L] knows he doesn’t have a result but she doesn’t have details.

   mm.The applicant has church friends, [Ms M], [Ms N], [O], [P] and [Q].  They are all of Iranian background.  The applicant does not know their visa status.  He did not ask any of them to give evidence on his behalf that he is a Christian.  They don’t know about him. He only told [P].  If they know about the applicant’s case it might not be helpful.  The applicant might be a bit embarrassed.

   nn.He asked the pastor for help because the pastor knew because during lockdown the applicant had no food so sought help from [Pastor I] and the conversation happened.

   oo.The Tribunal asked the applicant what the important Christian beliefs and principles are.  The applicant responded that Christianity teaches how to be kind to others, be humble and respect others.  Jesus is the God and came to earth and is the God of heaven.  Since birth we are exposed to a lot of sin so his only way is to believe in Christianity to reach towards Jesus to help us.

   pp.The applicant has watched a video about the differences between Islam and Christianity.  It states that the holy book Koran is Islam and the Bible is Christian. The source of Christianity comes from love. In Islam Jesus is a prophet and in Christianity Jesus is God.  In Islam wrongdoers need to be punished but in Christianity it is forgiveness and love.

   qq.The applicant has told his parents that he has become a Christian.  Since then he assumes others know.  He told his parents because as a Christian it is his duty to openly say what kind of belief he has.

   rr.The applicant does not have any relationships with people in Australia. He does not have any relationships with any children in Australia.

   ss.He has hepatitis but does not know how he contracted it.  He does not have any drug dependency.  He does not have any mental health issues.  This is his situation, he doesn’t know what to say to a counsellor.

   tt.He has not breached any laws in Australia.

   uu.He was paying taxes when he worked and has done volunteer work at the church and helped with interpreting

   vv.He lives alone and the government paid him a pension but it is discontinued so he doesn’t receive any support.  The government is asking for the payments back so he is in financial hardship.  He has lost everything.

   ww.He can’t return to Iran, because he has converted to Christianity and the activity he has done for Christianity will put his life in danger.  All his life is here, his friends and everything.  He has been out of Iran for a long time and cannot go back because the government regime can consider him a spy.  They can accuse people outside Iran for any reason.  If he goes back he has to continue his activity for Christianity the same as here.

   xx.The Tribunal asked what his activity here is and the applicant responded his belief is Christianity and he converted and he is committed to Christianity.  If he goes back he will have to continue the same commitment.  Apostates must be killed in Iran. 

   yy.He loves Australia, it has been kind to him. He loves the culture and he has the opportunity to have a better life.  He would love to get married, make a family, and have children to be raised under freedom.

   Post Hearing Submissions

5. On 14 June 2022 the applicant provided the following materials to the Tribunal:

   -Undated and untitled photographs, which include the applicant, at a large Christian gathering.

   -Undated and untitled photographs of the applicant with other people.

   -An undated photograph of the applicant with a person dressed as Santa Claus with a ‘[Church]’ van in the background,

   -An undated typed letter which reads:

   I [P] have been in role of Persian community leader from 2018 to 2021 in [Church], [Suburb 2]. It is in this capacity that I have known [the applicant – changed name] as he was attending Sunday Morning services. He also contributed to Bible study group that conducted by myself.

   -An email message from the applicant which includes the following text:

   Hi my name is [Ms L – full name]. As people call me in australia [Ms L – English name]. I know [the applicant – changed name] many years and he help me a lot here and he good man. For first time [the applicant – changed name] take me to church and he talk about Jesus to me and i decided to become Christian and i find new life and i get water baptism in [Suburb 2] [church] in 2019. I will send my certificate of baptism included this email [attached to the email].

6. The applicant appeared again before the Tribunal (as currently constituted) on 22 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.  The following is a summary of the information provided by the applicant at the hearing:

   a.He arrived in Australia at the end of 2009.  After his release from immigration detention he lived in Melbourne in [Suburb 3].  He was in Melbourne for six or seven years. He moved a lot in Melbourne and lived in [Suburb 4] and [Suburb 5] suburbs.

   b.He can’t remember when his brother and nephew arrived in Australia.  It was a few years after the applicant arrived.  They also lived in Melbourne at times but not with the applicant.  They never lived together.  They don’t have much mutual understanding. The applicant’s brother spends a lot of time with friends and smokes. His brother and nephew lived in [Suburb 6] a lot.

   c.The applicant hasn’t heard anything from his brother and nephew for years.  He just hears news of them from his mother.  His nephew is [Age] years old now. The applicant has no contact with them.  Even in Iran they did not have much contact as they have a different mindset.  They don’t have a close relationship. If his brother calls the applicant the applicant will answer of course.  They were last in contact in 2014. The applicant found out his brother and nephew were in Australia from his mother.  He thinks his brother got in contact with the applicant first after their mother gave his brother the applicant’s number.

   d.The applicant’s mother told the applicant to take care of his brother in Australia because his brother is not so responsible.  The applicant told her he would if he could but he has his own problems.

   e.The applicant had contact with his brother in Australia once by phone.  He also helped his brother with some paperwork through his [Organisation] volunteer work.  He met his nephew and brother once in Australia in [Suburb 5]. The last contact the applicant had with his brother was by telephone in 2014. The applicant asked his brother what he had told about the applicant so that the applicant was having trouble and problems now.  It was just a normal chat.

   f.The applicant’s brother caused visa problems for the applicant because he gave information which was contradictory to the information the applicant had given. It didn’t match what the applicant had said.  The applicant discovered this when he had an interview in Melbourne in 2014 or 2015.  The applicant eventually admitted the information he had provided was false.

   g.The applicant was upset at his brother for the problems he caused the applicant. When his brother arrived in Australia he asked their mother for money so their mother asked the applicant to help his brother with money.  The applicant gave him some money but his brother did not pay him back. The applicant once sent money to his brother when his brother was in [Country 1].  Their mother asked the applicant to do this because his brother and nephew had no money for food in [Country 1].

   h.The applicant’s brother is one year older than the applicant. He lived with the family in Iran until he married.  The applicant’s brother had some issues with his wife and she left him. The applicant can’t say for sure if his brother is religious or not.  His brother moved out of the family home in his twenties.  Before this the applicant’s brother spent most of his time out with friends. The applicant was more family orientated.  The applicant’s brother would sometimes go to a religious event but that was with his friends. The applicant cannot say that his brother was strictly following religion.  He was always out with his friends.

   i.When they were both very young they would attend the mosque with their father.  The applicant stopped going to the mosque when he was a teenager, about 13 or 14.

   j.His brother would go to the mosque because he was a member of the mosque Basij. The applicant’s two sisters in Iran are religious. They wear the hijab and pray.  The applicant’s younger brother in Iran is not as religious. The applicant and his siblings did not speak about religion together much.  When they were little they would complain to each other about going to the mosque.

   k.The applicant has sent money to his family in Iran when he can. He can’t anymore.  He firstly sent money to his sister [Ms D] and then to his mother.  His mother could not handle banking as she doesn’t have much education.  He also did not send money directly to her because he had stated things that were not true in his case and he had to cover this up. Unfortunately part of his information was not true so he had to add more untruth.

   l.When the applicant was in Iran he discussed leaving with his siblings.  He was under pressure.  He had an unsuccessful marriage and had to go back to his parents. So he discussed his departure plans with them.

   m.The applicant describes himself as very family orientated because he spent more of his time with his family. His older brother was always out. The applicant spent his time with his family because he liked family and liked to be with them and to care about family.

   n.The Tribunal asked the applicant why he did not seek and rely upon advice from his registered migration agent in his Protection visa application instead of relying and acting upon the advice of a smuggler.  The applicant responded that the smuggler was his aunt’s son-in-law and lives in Australia.  He was part of the family.  He told the applicant what he must do.  Unfortunately because of that information which the applicant gave initially, he had to add more incorrect information in order to proceed with his case.

   o.The Tribunal asked the applicant why he maintained in his Protection visa application that he is Shia Muslim if he had stopped believing in Islam in Iran.  He confirmed he had stopped believing in Islam at that time but he had been identifying as Muslim in Iran.

   p.The applicant first met [Ms L] in Melbourne in maybe 2014 or 2015.  She is now in Sydney.  The applicant first took her to [church] in [Suburb 2] in 2017 or 2018 and she got baptised.

   q.The Tribunal asked the applicant who ‘[Ms R]’ is, a person who appears on the [Social media] posts the applicant submitted to the Tribunal. After some brief uncertainty the applicant responded that she is a friend who had been a colleague in [Occupation 4].  They were work mates. They do not have much contact now.  The applicant thinks she is a Christian but he is not sure.  He can’t remember when they met, it was a few years ago.  He thinks it was before he became a Christian.

   r.He cannot remember who is ‘[Mr S]’, the other person who appears on his [Social media] posts.  The applicant does not use his [Social media] account for private use.   He uses it mainly to advertise Christianity.  He has maybe 50 or 60 ‘friends’ on his [Social media] account.  He does not personally know them all. He uses his [Social media] account to advertise Christianity because when he became Christian he believed it is the only way to save human beings.

   s.The Tribunal asked the applicant if he had much interaction with the people he has ‘friended’ on his [Social media] account. He responded not much as he doesn’t go on [Social media] much because of his issues these days.  The Tribunal put to the applicant that he could spread Christianity more effectively if he interacted with the people on his [Social media] account.  The applicant responded that is right but he is having so many issues and problems he can’t really do it.

   t.The applicant has only one [Social media] account which he opened in 2012 or 2013.  He opened the account hoping to advertise Christianity.  He became a Christian in 2013 but was baptised in 2017.

   u.He cannot say specifically when he became a Christian as it was a gradual process.  He visited church a few times and listened to preaching and felt the kindness. He felt Jesus and Christianity.

   v.The applicant waited some years to be baptised because he moved from Melbourne to Sydney and it prolonged the process and he had to take care of so many things in his life.  In 2012 or 2013 he accepted Christianity in his heart. He moved to Sydney in 2015 or 2016.

   w.The Tribunal put to the applicant that the people who ‘liked’ his very early Christian posts seem to have only met him in later years.  The applicant responded that he did not know. The Tribunal put to the applicant that it is reportedly possible to change the dates of [Social media] posts.  The applicant responded that he didn’t change anything and he is not very technical.  The Tribunal put to the applicant that there may have been no awareness of his [Social media] account until later years. The applicant responded no, his previous lawyer, from maybe 2018, had information about the applicant’s [Social media] account.

   x.He was not very active on [Social media] at the beginning.  Later on, when he became familiar with Christianity he started posting more. The Tribunal asked the applicant if he had become a Christian before he was more familiar with it. The applicant responded that he means when he became more familiar with Christianity he started to invite people to his [Social media] account. Since 2012 he adopted Christianity in his heart and was learning more about it.  After this he began inviting people to his [Social media] account, in 2013.  In the beginning not so many people liked his [Social media] posts but gradually people started to like it.  The date should appear on the ‘likes’.  The Tribunal put to the applicant that there are no dates in the early years.  The applicant responded yes there were not so many people then and he was not so active.  This was because he didn’t have much free time. He worked in two places.  He was still healthy at the time.

   y.When he arrived in Australia his English was very basic, just normal greetings like hello.

   z.The friend who first took the applicant to church was a [Country 2] lady who was a [Occupation 5] in [Organisation].  He can’t remember her name. She took him to a Catholic church in the same street in which the applicant lived. The service was in English.  He was impressed with what he saw there. The Tribunal put to the applicant that he had written in his earlier statement that he was initially sceptical.  He responded he was sceptical about adopting Christianity, but in terms of his first experience they were very kind in the church.

   aa.He attended the Catholic church only once.  After that he went to other churches. He next went to a [Country 3] church, about two or three weeks after he attended the Catholic church.  He saw an advertisement for a celebration in the church in the city.  He went there by himself.  It was a bit far away.  He can’t remember what the celebration was about.  There was food and sweets for attendees.  The service was also in English.  He attended that church just once.

   bb.He can’t remember all the other churches he went to in Melbourne but he eventually connected to the [church].  This was in 2013, a few months after he first attended the Catholic church.  The applicant worked as a volunteer at [Organisation] and a work colleague suggested the applicant go to the [church] as it was close to the workplace and it was a big place and he might find friends there. The applicant does not know if the colleague was Christian or not.

   cc.The [church] was different from the Catholic church as the [church] cares more about bible study and the Holy Book. In the Catholic church most of the rituals and commands are from the church and priest, but in the protestant church the rituals and services come from Christianity.

   dd.The applicant attended the [church] in Melbourne regularly, every few weeks, until he moved to Sydney.  He was working at that time.  He liked that a large community from different backgrounds attended. He felt comfortable there.  The language of the services was English. The applicant mostly understood what was said.  He could communicate in English at the time.

   ee.He remembers his first [church] service. There were seats and people. It started with music and praying and then a person preached.  They preached about different topics. The topics were kindness and justice.  The Tribunal asked the applicant if there are topics of kindness and justice in Islam. He responded no it is different, there was some, but in totality Christianity is based on kindness and Islam isn’t. Christianity has kindness and friendship in different verses and even says to be friends with your enemy.  He remembers they talked about someone who was sentenced to death by stoning and people wanted to stone that person and perform justice and Jesus came and interrupted them and said who is without sin can send the first stone.

   ff.It is very important to be friends with your enemy.  The applicant is attracted to this because it says you need to be respectful and kind to your enemy.  He doesn’t see such kindness in Islam.  The Tribunal put to the applicant that he had decided to cease contact with, and help to, his brother and nephew in Australia many years ago, despite his mother asking the applicant to help them. The applicant responded that his brother ran out of money in [Country 1] and their mother asked the applicant to help him.  The applicant didn’t have much money and he didn’t want his brother to come to Australia to put more problems on his own problems.  Even in the previous interview they said to the applicant that he helped his brother to come to Australia and he told them no he didn’t want his brother to come here.  It was his brother’s choice to come to Australia and his arrival in Australia has caused problems for the applicant because there is a different story.

   gg.The applicant does not know who was the pastor of the [church] in Melbourne because there are so many.  The Tribunal put to the applicant there would still be a main or chief pastor at the church.  He responded that he can’t remember the name.  There was a tall bald man.

   hh.The applicant did not get baptised in Melbourne because it is a specific ceremony and not happening all the time. Also the applicant was very busy with work and sometimes he was sick and in hospital.  He moved to Sydney and got baptised in Sydney. The Tribunal put to the applicant that he had previously said he did get baptised in Melbourne.  The applicant responded yes he did but it was not true. He did not want to say that but his lawyer advised him incorrectly. The lawyer told the applicant that he is not baptised so it would be hard to believe he is Christian.  The applicant has not reported his lawyer for advising him to lie.

   ii.The applicant wanted to tell the truth from the first day but they scared him. They made him act that way.  The Tribunal put to the applicant that his behaviour indicates he will provide incorrect information to avoid a negative outcome. The applicant responded yes that is right, he is stuck in limbo, he can’t go back. 

   jj.The Tribunal asked the applicant if he had made any friends through [church] in Melbourne.   He responded there were some Iranians but they had not become close friends.  He did not make friends there because he was not attending every week and he was focussed upon his health and would work night shift so he didn’t have time to find close friends.  Friends are very important. But he is so low in mood that he does not want to go out with people.

   kk.The Tribunal asked the applicant if he had any close friends before he started having problems in Australia. He responded yes he had a work colleague at [Organisation].  They were close but not that close. The person did not go to church. He has a close friend now, the person he knew in Melbourne. She sometimes goes to church but not all the time.  She works and goes to school.

   ll.The first church the applicant attended in Sydney was [Church] in [Suburb 7]. He started attending it about six months after he arrived in Sydney because he had an issue with his accommodation.  He tried to regularly attend the church and did so most weeks.  He has changed to the [Church] in [Suburb 2].

   mm.The last time he attended the [church] was the previous evening. He remembers the service was about who is Jesus and how people can reach and follow Him and what stage they are at now.  The Tribunal asked the applicant what was said about Jesus. He responded that the pastor gave his own life story about how he met his wife who is [Country 4] and how she did not love him at first but they finally got together and now have two children, because they follow Jesus and the same path. They also talked about how people can get to Jesus and step into the right path and which part of the path people are at.  People have to show it in their behaviour and lifestyle to walk this path to reach for God and Jesus.  People should get close to each other with respect and Jesus is a symbol of love and kindness.

   nn.The Tribunal asked the applicant if he had learned anything from the service he attended on the previous evening.  The applicant responded that everybody who preaches gives him new information. Sometimes he knows a bit but there is new or extra information and things are more clear. The Tribunal asked if there had been any extra information or clarity from the service he had attended. The applicant responded that people think they are being judged based on whoever see them at that moment but even in absence, if no one is around, people would be judged.  He had known this already but he is being certain about it and having faith and belief in this matter and he can control himself and become a better human.

   oo.The applicant does not know who the pastor was at the previous evening’s service.   Every time it is a new person.  [Pastor I] was there and asked how the applicant’s process was going.

   pp.The Tribunal asked the applicant how [Pastor I] knew that the applicant had attended the church in Melbourne from 2013.  He replied that [P], the leader, told him.  The Tribunal asked the applicant how [P] knew this and the applicant replied that he had told [P].

   qq.The Tribunal asked the applicant when he last posted to [Social media] and the applicant responded a couple of months ago.  His [Social media] account is public so the Tribunal should be able to see it.  The Tribunal showed the applicant a [Social media] account and asked him if this was his account. The applicant responded yes and that he did not know why it only showed one post which was from March 2018.

   rr.The Tribunal put to the applicant that many Iranians don’t like the way Islam is used in Iran by religious leaders and many Iranians don’t believe in Islam even though required to identify as Muslim.  The applicant responded that yes this is true but they are not happy about their life and the way they are living. If they can they migrate, otherwise there is no other choice. The applicant stopped practicing Islam in Iran as a teenager.

   ss.The applicant continues to work part-time as [an Occupation 4] in Australia.

   tt.His health has become worse and his doctor told him a few years ago that he may only have ten years to live.  There is no cure.  He needs to see a medical practitioner to have some scans and tests but he is afraid to as he is financially constrained.  He does not take the prescribed medication because of the side effects.  He has adapted his lifestyle to eat and exercise well.  He has to completely avoid alcohol because his liver is damaged.  The last time he needed a blood test the Salvation Army paid for it.  He will be able to get medication and maintain a healthy lifestyle in Iran.  His liver will still gradually get more polluted.

   uu.He has not broken any laws in Australia.

   vv.He has done voluntary work for [Organisation] when he lived in Melbourne.  He is no longer able to contribute financially to anything.

   ww.He has been in Australia for more than 12 years.  Lots of things changed his whole life in Australia. He has converted to Christianity and needs to continue his religion freely. Under Iranian law people who convert from Islam are punished.  Because of his financial matter he may be a little bit faded in terms of the Christian activity he used to do.  This is because he is more focussed on his life. He has been through a lot of difficulties over these years. If he goes back to Iran it may create more problems.  There are lots of things going on in terms of spying on foreigners by the Iranian regime.

   xx.He wants to apologise for the problems he created. Being in Australia has given him a chance to help his family. He was helping them economically as they are under an extreme economic situation. They are old.  He is speaking of his mother and father. He wants to help them both. They raised him and they are his parents and even though he made some mistake, the only people they have is the applicant.

   Post-Hearing Submission.

1. On 5 September 2022 the applicant sent an email message to the Tribunal stating that his health condition was not well so the email was delayed. He states that he can swear to his God Jesus that he didn’t change his [Social media] account and he didn’t know if his account is public or private.  He states he will get help to fix the issue because he doesn’t know how to fix it as he is not familiar with social applications.  He states it may be his representative who changed his [Social media] account as he is the only person who had the applicant’s [Social  media] account login and password.  He states he is really sorry for what he did but to please give him a second chance, his life is already hard so please don’t make it harder.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

3. 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.

4. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

5. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:

   Information the applicant provided in his Form 866 Protection visa application regarding his identity, background, nationality, family composition, countries of residence, and claims for protection.

6. The applicant has confirmed that he did provide incorrect information as particularised in the s 107 notice.  He has provided Iranian identity documents which confirm he was named [the applicant], was born on [Date 1, Year 4], and is an Iranian national.

7. The Tribunal is therefore satisfied that the applicant provided incorrect answers in his Protection visa application as particularised in the s 107 Notice, dated 30 July 2018.

8. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

9. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

10. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

    The correct information

11. The correct information is that the applicant is an Iranian national, born in Tehran, who lived with the rights of a citizen in Iran. The applicant is not stateless, is not an Iraqi national, and was not born in Iraq from where he had to flee with his mother to Iran when a child. The applicant’s father is alive and was not killed in Iraq.  The applicant did not live as a stateless person without rights in Iran.

12. The correct information is extremely different from the information the applicant provided in his Protection visa application.  It is core information critical to the assessment of his visa application.  It goes to his identity and his background which renders his presence in Australia as reliant upon false information.

13. The Tribunal therefore considers this factor weighs significantly in favour of the exercise of its discretion to cancel the applicant’s visa.

    The content of the genuine document (if any)

14. This is not a relevant consideration.

    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

15. The decision to grant the applicant a Protection visa was based almost entirely upon the incorrect information.  He was granted the visa due to the acceptance at the time that he was an Iraqi who was forced out of Iraq to live without nationality in Iran. The incorrect information was therefore critical to the decision to grant the visa.

16. The Tribunal therefore views this factor weighs significantly in favour of exercising its discretion to cancel the applicant’s visa.

    The circumstances in which the non-compliance occurred

17. The applicant has stated he provided the incorrect information because he was advised by a people smuggler, to whom he had some relation, that his true information would not gain him a visa but the false information would.

18. The applicant was made aware from arrival in Australia that he was required to provide correct information and he had to swear, declare and sign, in many instances, that the information he was providing was correct.

19. The applicant also had opportunity to seek qualified immigration advice regarding his correct information and how this information may be assessed according to the Protection visa criteria.  However he chose not to seek such advice but instead relied upon what he was told by the people smuggler.

20. The applicant stated he provided the incorrect information because he did not want to be returned to Iran.  The Tribunal accepts that this is so.  However it does not justify providing false information to the Department.

21. There is no evidence of force or coercion upon the applicant to provide the incorrect information at the time.  He decided to do so independently, in order to gain an advantage he worried he may not otherwise have obtained.

22. The Tribunal considers that the circumstances of the non-compliance weigh in favour of the exercising of its discretion to cancel the applicant’s visa.

    The present circumstances of the visa holder

23. The applicant is currently without a visa in Australia and complains of severe financial hardship here.  He stated he does part-time work as [an Occupation 4] but that his life is very difficult.

24. He has a brother and young nephew in Australia but he claims to have had no contact with them in many years and to be unaware of where they are.

25. He has not provided evidence of forming substantive relationships in Australia apart from a friend, ‘[Ms L]’.

26. As presented by the applicant he is living a relatively solitary life in Australia in difficult financial circumstances.  He also has Hepatitis A and B.  He has confirmed that the lifestyle changes and medication he needs for his health would be possible and available to him in Iran, however his prognosis remains poor.

27. The Tribunal considers that the applicant’s present circumstances are not particularly favourable to him and he would not suffer disadvantage to be away from such circumstances.

28. The Tribunal however acknowledges that if the applicant’s visa is not cancelled, he may be able to improve his financial situation and his circumstances in Australia would then improve.  However this remains speculative.

29. The Tribunal considers that there is nothing about the applicant’s present circumstances that would persuade it to not exercise its discretion to cancel the applicant’s visa. The Tribunal therefore views this factor neutrally.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

30. The applicant spent many years in Australia without correcting the wrong information he had provided in his visa application. He was also interviewed by the Department regarding his identity in about 2014 and again did not correct the wrong information.  It was not until he received the initial s107 notice in March 2018 and was confronted with the evidence that he had provided incorrect information that he clearly confirmed the information was incorrect.

31. In the Tribunal views the applicant’s lack of effort to correct the information over several years in Australia is a factor that weighs in favour of the Tribunal exercising its discretion to cancel the applicant’s visa.

    Any other instances of non-compliance by the visa holder known to the Minister

32. The applicant has confirmed that he continued to provide the incorrect information in his dealings with the department including in his subclass 155 visa application.  He explained he did so because of his initial presentation of incorrect information as he needed to maintain his false story.  Therefore, there has been another instance of non-compliance by the applicant.

33. The Tribunal gives this consideration weight in favour of exercising its discretion to cancel the applicant’s visa.

    The time that has elapsed since the non-compliance

34. About twelve years has elapsed since the initial non-compliance by the applicant. In those years he has lived in Melbourne and then Sydney and worked as [an Occupation 4].  He is renting a flat on the north shore of Sydney.  He has made some friends but few close friends.  He states he has become Australian and wants to stay in Australia.

35. The Tribunal considers that twelve years is quite a long time and accepts that the applicant would have become accustomed to life in Australia, despite not establishing particularly strong connections to the country.

36. The Tribunal therefore gives this factor weight against the exercise of its discretion to cancel the applicant’s visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

37. The Tribunal is not aware of any breaches of the law by the applicant. The Tribunal therefore gives this factor weight against the exercise of the discretion to cancel the applicant’s visa.

    Any contribution made by the holder to the community.

38. The applicant worked as a volunteer with an organisation, [Organisation], in Melbourne supporting refugees in Australia.  Since coming to Sydney he has stopped this work. In Sydney he took on some volunteer duties with the church for a period.  The Tribunal considers the applicant’s period of involvement with [Organisation] in Melbourne represents a valuable contribution to the community, and that his other volunteer work has also been a contribution.  The Tribunal therefore gives this factor weight against the exercise of its discretion to cancel the applicant’s visa.

    Other considerations

39. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters, such as the following.

    Whether there would be consequential cancellations under s 140.

40. There is no evidence of any consequential cancellations under s140 of the Act. Accordingly, the Tribunal views this factor neutrally.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

41. There is no evidence of any children whose interests would be affected by the cancellation.  Accordingly, the Tribunal views this factor neutrally.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

    Non-Refoulement obligations

42. The applicant has acknowledged that his initial claims to be a person in respect of whom Australia has protection obligations were incorrect, based upon the incorrect information he then provided.

43. In his NOICC responses he stated that he had problems in Iran because he did not like and did not want to practice Islam but was raised by religious parents, was forced to practice Islam from age ten, and was physically mistreated by his father.  He also had to participate in Islam at school and during his military service. He wrote in his NOICC response that he renounced Islam at the age of about 21 and lived without religion in Iran. As a result he had arguments about Islam and the Prophet Mohammed with his father who beat him and threw him out of the home and he has barely talked to his father since.

44. He has further stated that he had problems with the regime in Iran and participated in one anti-government demonstration there but did not experience any resulting adverse consequences.

45. The applicant’s evidence about difficulties with his father in Iran was highly contradictory and not persuasive.  Despite claiming his father abused and mistreated him and threw him out of the family home the applicant also stated he was very close to his family, family orientated, continues to support his parents, and chose to return to his father’s home after the failure of his marriage.  The Tribunal doesn’t accept that the applicant’s father abused the applicant in Iran.

46. The applicant also could not provide any specific evidence of instances of harm to him for rejecting Islam in Iran.  He provided inconsistent evidence regarding when he decided to not follow Islam and to stop practising it in Iran.  He at times stated this occurred when he was a teenager but at other times stated it was when he was 21 years old.  In any event his decision to stop practicing Islam does not appear to have caused him harm or brought him to adverse attention in Iran. 

47. The applicant also provided significantly inconsistent evidence regarding his claimed participation in an anti-government demonstration in Iran. Initially he described it as a post 2009 election demonstration. However at his recent Tribunal hearing he stated the demonstration was in [Year 14], or about one year before he came to Australia which would be in 2008.  He also stated that the demonstration was about the economy.  The Tribunal considers that the applicant would be able to readily distinguish between attending an election-triggered protest just a few months or less before his departure from Iran, from an economy focussed protest one or two years prior to his departure, if he had actually attended a demonstration.  The Tribunal does not find the applicant’s evidence credible that he did attend an anti-government demonstration in Iran.

48. Further, even if the applicant did attend one anti-government demonstration in Iran he did not suffer any adverse consequence as a result of this participation.

49. In view of the above the Tribunal considers that the applicant’s departure from Iran was not motivated by experiences or fears of persecution or significant harm at the time.

50. There is no evidence that the applicant has been involved in anti-regime activity in Australia or that he intends or wishes to be involved in anti-regime activity on return to Iran.  On the basis of the evidence before it the Tribunal is not satisfied there is any chance of harm to the applicant in Iran due to his dislike of the Iranian regime or due to his political opinion.

51. There is also no evidence to support the applicant’s statement that he will be considered a spy on return to Iran.  There is no evidence he has been acting as a spy and no reason for the Iranian authorities to be suspicious of him.  The Tribunal is not satisfied, on the evidence before it, that there is any real chance of the applicant being suspected of being a spy by the Iranian authorities.

52. The applicant also claims to have become a Christian in Australia and to now fear harm as an apostate on return to Iran.  The applicant’s evidence about his adoption of Christianity in Australia was inconsistent and he has admitted intentionally providing false evidence regarding a claimed 2013 baptism.  His description of why and how he went to a variety of churches in Melbourne was vague and he was unable to satisfactorily explain why he adopted Christianity in 2013 after some seemingly quite superficial exposure to a number of different churches there.  

53. He has submitted [Social media] screen shots which suggest he posted material about Christianity to his [Social media] account in 2013.  However his explanation why he would do this at the time and why people only seemed to react to the posts in much later years casts serious doubt that the applicant actually did do this in 2013.

54. In view of the vagueness of the applicant’s evidence and his admission that he colluded with his representative to falsify information about his Christianity in Melbourne the Tribunal does not accept that the applicant did attend church or adopt Christianity while he was living in Melbourne.

55. The applicant has submitted evidence that he started attending the [Church] in 2017 after moving to Sydney in 2015 or 2016.  This evidence includes letters from the church Pastor and photographs of himself at the church.  He has also submitted a letter purportedly from another Iranian who attends [Church], stating the applicant attended the church and bible study groups. The Tribunal accepts that the applicant has attended the [church] in Sydney and participated in some social activities and bible studies with the church.

56. The applicant also submitted screen shots of a Christian social media channel he claimed to have created at some time but no longer maintained, and further screen shots of his [Social media] account showing that he has posted more Christian material to his [Social media] account, and that a few of these posts have been ‘liked’ by two or three people in recent years.  He was unable to explain why the posts were no longer showing publicly on his [Social media] account during the Tribunal hearing.  Nevertheless the Tribunal accepts that at some time since moving to Sydney the applicant has posted Christian material to his [Social media] account and that he had a social media channel which contained information about Christianity.

57. However the Tribunal does not accept that the applicant has genuinely adopted Christianity.  He struggled to explain why he adopted Christianity at a depth that would be expected from someone who has made a very significant and life-changing personal decision.  The applicant’s evidence of his attendance at the [church] also did not demonstrate much level of actual engagement in the religious or spiritual teachings beyond some superficial social and self-improvement information.  While the applicant may have attended the [church] in Australia the Tribunal does not accept that he did so for any genuine religious reasons but rather was merely trying to create a further protection claim for himself, given the growing indications that his incorrect information had been discovered by the Department.

1. When speaking of his Christianity at his recent Tribunal hearings the applicant presented Christian practice as if it was a chore he did not have the time or emotional energy for due to his difficult circumstances. The applicant’s main emotion when speaking about Christian practice was some resentment at the expectation he should have knowledge of the Bible or practice Christianity given his current life difficulties.  The Tribunal did not get any impression from the applicant that Christianity played a positive, spiritual or supportive role in the applicant’s everyday life.  When asked about Christian beliefs the applicant could state little more than an emphasis upon kindness, forgiveness and loving even your enemy.  While the Tribunal accepts that these are important Christian beliefs the applicant was not able to demonstrate the level of broader or more in depth Christian understanding that would be expected of someone who has adopted the religion, has been practicing it, and has attended Church and bible studies, for around five years.  As currently presented by the applicant Christianity appears to have very little significance in the applicant’s life.

2. The Tribunal considers the applicant’s evidence unreliable.  He has admitted to providing false information on numerous occasions, and creating further lies, including during the cancellation process to try to safeguard or regain his visa status. The applicant’s evidence about adopting Christianity in Australia is not persuasive and the Tribunal does not accept that he has genuinely adopted Christianity, practices Christianity, or identifies as Christian.

3. The applicant also presented evidence that he has encouraged two others to adopt Christianity while in Australia. He named them as [Ms L], a close friend he met in Melbourne who has also moved to Sydney, and [Ms K], a work colleague.  When the Tribunal discussed with the applicant whether either of them could give evidence to the Tribunal he was hesitant and rejected the possibility.  After the hearing he submitted a brief email with no address details apart from his own and the Tribunal’s, purportedly from [Ms L], and stating that the applicant had taken her to church and spoken to her about Jesus and that she had decided to become a Christian and be baptised. There is no information about why [Ms L] agreed to go to the church or why she decided to adopt Christianity or what part the applicant may have played in her eventual decision. Despite the absence of address details the Tribunal gives the applicant the benefit of the doubt that the email did originate from [Ms L]. It also accepts that she initially went to the church with the applicant and that she later adopted Christianity and was baptised. The Tribunal therefore accepts that the applicant introduced [Ms L] to the [church]. Given the applicant’s lack of detailed knowledge of Jesus and Christianity in general the Tribunal does not accept that it was the applicant’s influence or words about Christianity that persuaded [Ms L] to become Christian. He also gave confused evidence about whether he maintained any contact with [Ms L] at the church she and he supposedly both attended.  Given the applicant’s poor evidence, together with his lack of genuine Christian belief the Tribunal does not accept that the applicant took [Ms L] to the [church] out of any evangelical inclination, as opposed to a more sociable motivation in view of their friendship.

4. The applicant’s evidence about [Ms K] becoming Christian was very vague and lacking in any persuasive detail that would suggest this did occur. The Tribunal does not accept that the applicant influenced a woman called [Ms K] to become a Christian in Australia.

5. The Tribunal accepts that the applicant has attended the [church] in Sydney on occasion in Sydney, that he took a close friend to the [church] but has since had little contact with her there, that he has posted some Christian materials to his [Social media] account in the past but these are no longer publicly available, and that he runs a social media channel on Christianity which he is no longer active on.  The Tribunal does not accept that the applicant is a genuine Christian or genuinely practices Christianity.

6. While the applicant has done some public activity with Christianity this has been relatively minimal and in recent times very little. There is no reason or indication to suggest the Iranian authorities are aware of the applicant’s activities, including his church attendance, in Australia, or have taken any interest in them, or that they would become aware of them. The applicant is also readily able to expunge his social media accounts of any Christian material if any remains there.  He also uses an alias for his social media accounts so is not readily identifiable as owning them.  For these reasons the Tribunal is not satisfied that the applicant’s past public activities in Australia, in relation to Christianity, give rise to a real chance of serious or significant harm to the applicant in Iran.

7. In view of the Tribunal’s finding that the applicant is not a genuine Christian or genuinely wishes to practice Christianity the Tribunal is not satisfied there is a real chance he would face harm in Iran as a Christian or because of his Christian practice.

8. As stated by the applicant he lived in Iran for some years without practising Islam and did not experience adverse attention or harm. The applicant did not submit any practical reasons why he could not return to Iran and continue not to practice Islam without harm. The Tribunal is therefore satisfied there is no real chance of serious or significant harm to the applicant if he continues not to practice Islam there.

9. In the Tribunal’s view there is nothing about the applicant’s past or present that would cause him to be a person in respect of whom Australia has protection obligations.  The Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant on return to Iran.

   Family unity obligations

10. The applicant has a brother and nephew in Australia but he maintains he has had no contact with them in almost 8 years. His mother and father remain in Iran along with his younger brother and two sisters.  The applicant has maintained contact with his family in Iran and shows attachment to and concern for his parents. On the applicant’s evidence his ties are much closer to his family in Iran than to his brother and nephew here. The applicant’s departure from Australia would therefore have little adverse impact upon his sense of family unity or loss. The Tribunal therefore does not consider that there are family unity obligations which warrant not cancelling the applicant’s visa.

    Breach of obligations

11. In view of the above, the Tribunal considers that the cancellation of the applicant’s visa would not lead to the applicant’s return or removal to Iran in breach of Australia's non-refoulement or family unity obligations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

12. If the applicant’s visa remains cancelled he would be without a visa in Australia unless the Minister intervenes to grant him a visa.  If the Minister does not use his or her powers to grant a visa to the applicant then the applicant would need to depart Australia or become liable to detention.

13. The applicant was previously found to be a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act. Sub-section 197C(3) of the Migration Act provides that s198 of the Act does not require or authorise an officer of the Commonwealth to remove an unlawful non-citizen to a country if a “protection finding” has been made in relation to that person and country unless that decision has been set aside, or the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding would be made, or the non-citizen requests voluntary removal.

14. A protection finding was made in relation to the applicant as a result of his initial protection visa application. This finding has not been set aside and nor has the Minister made a subsequent determination.  Therefore the applicant would not be able to be removed to Iran under s198 of the Act.

15. Further, if the applicant’s visa is cancelled he would be unable, under s46A(1) of the Act, to make a valid application for another visa, unless the Minister permits him to in the public interest under s46A(2).

16. There are options within the Act for the Minister to use his or her powers to intervene to either grant the applicant a visa or permit him to make a valid visa application.  However unless these options are exercised the applicant would be liable to indefinite detention if he chooses to remain in Australia. 

17. The Tribunal therefore accepts that if the applicant’s visa is cancelled he will need to depart Australia to avoid a likelihood of being subject to indefinite detention in Australia.  The Tribunal considers that there are no real obstacles for the applicant to return voluntarily to Iran and that by doing so he would not be detained in Australia. The applicant has not been able to credibly establish a reason why he cannot return to Iran, apart from wanting to stay in Australia and to earn money here to support his parents in Iran.  While the Tribunal accepts he may be able to earn more money in Australia than he can in Iran the applicant has not indicated any reason why he cannot work in Iran and continue to support his parents there, albeit at a lower level.

18. Given the applicant can return to Iran and avoid indefinite detention here Tribunal views this factor neutrally.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

19. The applicant spoke at hearing of his wish to remain in Australia to continue to financially support his parents in Iran. He loves Australia, it has been kind to him. He loves the culture and he has the opportunity to have a better life and future here.

20. The Tribunal accepts these sentiments as genuine from the applicant. The Tribunal accepts it will be disruptive and distressing to the applicant if he has to depart Australia and return to Iran.   There will also be a period of adjustment and some time needed for the applicant to find work in Iran, during which he will not have financial independence and will need the support of his family there.  The Tribunal accepts this will be a hardship to the applicant.

21. The Tribunal also accepts that the applicant’s parents would experience a degree of hardship if the applicant is deprived of the potential to financially support them in the future from a higher Australian income. If the applicant’s visa is not cancelled the applicant will potentially be able to earn greater income in Australia to help support his parents in Iran, despite the higher cost of living here.

22. The Tribunal therefore views this factor as weighing against the exercise of its discretion to cancel the applicant’s visa.

23. The applicant’s health status is of genuine concern.  However his evidence indicates that a return to Iran does not mean his health would degrade. The Tribunal therefore views this aspect of the applicant’s situation neutrally.

    Conclusion

100.   There are several factors that weigh in favour of the applicant’s visa not being cancelled.  These include the time that has elapsed since the non-compliance; the lack of other breaches of the law by the applicant; the applicant’s contribution to the Australian community; and the hardship it would cause the applicant and potentially his parents if he has to depart Australia.

101.   However the factors that weigh in favour of the cancellation are of greater significance given the seriousness of the non-compliance and the granting of a visa the applicant was not entitled to, due to the non-compliance. The applicant’s continued adherence to the incorrect information in his further dealings with the Department over the years also compounds the seriousness of his breach. His apologies and expressions of remorse are undermined to some extent by the prolonged period over which he continued to provide the incorrect information, and by his apparent antagonism and blame towards his brother for seemingly creating the situation in which the applicant’s incorrect information was revealed.

102.   The level of hardship to the applicant to have to return to Iran is not of the nature that strongly compels his stay in Australia. The lengthy time he has spent in Australia which will make departure distressing to the applicant also does not entail problems of the magnitude that would necessitate he remains in Australia.  The applicant’s non-compliance is a matter going to the integrity of the migration system and protection visa scheme.  On balance the Tribunal considers that the factors which way in favour of exercising the discretion to cancel the applicant’s visa outweigh those which do not.

103.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

decision

104.   The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Melissa McAdam
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.