2017623 (Refugee)

[2022] AATA 967

2017623 (Refugee) [2022] AATA 967 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017623

COUNTRY OF REFERENCE:                   Iran

MEMBER:Alison Murphy

DATE:5 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2022 at 4:36pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information given in protection visa application – particular social group – homosexual man – partner imprisoned, parents’ house raided and arrest warrant issued – marriage to woman and return to home country – discretion to cancel visa – sexuality more accurately bisexual – relationships with men and women in home country and Australia – married under pressure from parents – bisexuality recorded in psychiatric report prepared for unrelated purpose before cancellation notice issued – marriage ceased and sponsorship of wife’s partner visa withdrawn – claim of arrest warrant not accepted – lengthy residence – parents’ and siblings’ protection claims on unrelated grounds – penalties for same-sex activities apply in any case – home country’s policy of not accepting involuntary returnees and possibility of prolonged immigration detention – non-refoulement – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 100, 101(b), 107, 109(1), 196, 197C(3), 197D(2), 198
Migration Regulations 1994 (Cth), r 2.41

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that they considered the applicant had given incorrect information in the protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 29 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother [Mr A] and friend [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review.

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

   BACKGROUND

6. The applicant is a [Age]-year-old male from Shiraz, Iran. He arrived in Australia by boat [in] May 2011 and claimed protection on the basis that he was a homosexual male who had been involved in a relationship with another man. He claimed that his partner had been arrested, imprisoned and was facing execution and there was a warrant out for the applicant’s arrest. On the basis of his claims, the applicant was granted a protection visa on 14 December 2011.

7. The Department subsequently became aware of information indicating that in April 2013, the applicant married an Iranian national and returned to Iran for a period of approximately seven weeks.

8. On 8 January 2020, the Department wrote to the applicant under s 107 of the Act, advising him that it was considering cancelling his visa as it considered he had provided incorrect information in his protection visa application (the s 107 notice). The s 107 notice alleged the applicant had failed to comply with his obligations under s 101(b) of the Act in the following respects:

   ·That he had claimed he left Iran because he was a homosexual man who had been in a same sex relationship in Iran until [April] 2011. He claimed that one week after their last encounter, his father rang him from a neighbour’s house saying that plain clothed men came to the house with search warrants and searched the applicant’s room. His father told him they had taken the applicant’s laptop and CDs and he had to go to court and was to be charged with lavat (homosexuality);

   ·He claimed that his father told him that the man with whom the applicant was in a relationship was arrested at a party and taken to Mafased (meaning ‘corruption’), where crimes of a sexual nature were dealt with. At Mafased the applicant’s partner was beaten and confessed to the relationship and his family made a complaint that their son was innocent and had been corrupted by the applicant;

   ·The applicant claimed that he also had a sexual relationship with an older man who was in the military as well as a sexual relationship with a boy when he was younger and had been homosexual his whole life. His former partner was still in prison and faces execution if found guilty. The applicant had no choice but to flee the country with the help of his parents;

   ·The applicant claimed that there was a warrant out for his arrest and if returned to Iran, he would be immediately arrested and sent to prison and if found guilty would face execution because it is a crime to be homosexual in Iran as Iran is an Islamic state.

9. The s 107 notice stated that the applicant had been found to engage Australia’s protection obligations due to having a well-founded fear of persecution for reasons of his membership of the particular social group, homosexual persons in Iran.

10. The s 107 notice set out that in April 2013, the applicant married an Iranian national, [Ms C], after travelling to [Country 1] to meet [Ms C] and her family in October 2012. [Ms C] made an application for a visitor visa in March 2013, naming the applicant as her husband. She later applied for a partner visa, including with her application copies of the applicant’s Iranian identity document; their marriage certificate and photographs of the couple. On 5 June 2013 [Ms C] withdrew her application for the partner visa, advising the Department that the couple were planning to divorce and the applicant was no longer willing to sponsor her.

11. The s 107 notice also set out that the applicant returned to Iran between [April] 2013 and [June] 2013 without apparent harm or impediment, despite his claims that there was an outstanding warrant for his arrest.

12. The s 107 notice alleged that the applicant had entered into a heterosexual relationship in June 2012, approximately six months after being granted the protection order on the basis of his same sex relationship, and that he had voluntarily returned to Iran despite his claims to be the subject of an outstanding arrest warrant on the basis of his same sex relationship.

13. On this basis the notice alleged the applicant had provided incorrect information in his visa application at questions 42 (as to why he left Iran); question 43 (as to what he feared may happen if he returned to Iran); question 44 (as to who he thought would harm or mistreat him on return to Iran); question 45 (as to why he thought that would happen); and at question 64 (when he stated that he had criminal charges pending, being the charge of lavat (homosexuality)).

14. The s 107 notice invited the applicant to respond to the matters raised, including whether he had complied with his obligations to provide correct information in his visa application and why he thought his visa should not be cancelled.

15. The applicant responded to the s 107 notice on 4 February 2020 by providing further information about the matters raised in that notice. In summary he stated that:

    ·He did not provide incorrect information in the protection visa application and there was no non-compliance as described in the notice;

    ·He has had homosexual relationships throughout his life, including several short term gay relationships in Iran and in Australia;

    ·The incidents in April 2011 described in his protection visa application occurred following his relationship with an Iranian man. That person’s arrest and the subsequent raid of his parents’ house led the applicant to flee Iran for fear of being arrested, interrogated under torture and eventually convicted for lavat by the Islamic regime;

    ·In 2013, he was informed that his gay friend had been released from custody as it was not proven in court that he was involved in homosexual acts. The applicant had managed to speak to his friend personally and learned that the file against him was most probably closed and would not be pursued by the Iranian courts and the arrest warrant had lapsed. On this basis the applicant found the confidence to travel back to Iran in mid-2013, staying in Iran for some weeks and leaving quietly without attracting the attention of the Iranian authorities;

    ·In Australia the applicant has an account on [dating website/app] for dating gay men and has had sex with a few of them, most recently and frequently [Mr B] who has provided a statutory declaration. The applicant’s younger brother, [Mr A], has also provided a statement about the applicant’s sexual orientation and gay relationships. A psychiatric report from [Dr D] dated 19 July 2019 describes the applicant as bisexual. The applicant converted to Christianity in 2015 and has confided in his pastor about his sexuality. The applicant is also deeply resentful of the Islamic regime of Iran and blames the mullahs for bringing 40 years of destruction upon his homeland and has shared in excess of 200 sensitive political posts on his [Social Media 1] page which have likely already been detected by the regime’s cyber army.

16. Before the Tribunal, the applicant relied upon his submissions in response to the s 107 notice.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 their circumstances.

18. 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.

19. I note that the s 107 notice sets out at length the information given by the applicant in his protection visa application, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

20. 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?

21. 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.

22. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in relation to his sexuality and his account of the events that led to his departure from Iran.

    The applicant’s sexuality

23. In a statutory declaration dated 10 September 2011 submitted as part of his visa application, the applicant described himself as having been homosexual for his entire life. As noted above, in 2013 the applicant married an Iranian national, [Ms C], after travelling to [Country 1] to meet [Ms C] and her family in October 2012. This caused the delegate to consider that the applicant may have given incorrect information in his visa application when he stated he was homosexual.

24. In response to the s 107 notice and before the Tribunal, the applicant claimed that he is bisexual but that he didn’t mention his relationships with women because they had no relevance to his claims. He stated he returned to Iran to marry under pressure from his parents who are still not aware of his sexuality.

25. At hearing the applicant told me that there was no commonly used word in Persian for bisexual and that the interpreter had interpreted his description of his sexuality as homosexual. He stated that having lived in Australia for a number of years, he would now describe himself as bisexual having had sexual relationships with both men and women throughout his life. The applicant’s representative, also a Farsi speaker, also gave evidence that there was no specific word in Farsi for bisexual as distinct from homosexual.

26. For the following reasons, the Tribunal is satisfied the applicant is bisexual as he now claims.

27. Firstly, the contents of the report dated 19 July 2017 prepared by [Dr D], a psychiatrist engaged to assess the applicant and provide a medicolegal report in respect of legal proceedings related to workplace injury the applicant experienced in his former employment. [Dr D] records in his report that the applicant is bisexual and that he had been threatened in Iran due to his homosexuality. He also records that the applicant was formerly in a relationship with a female, but that on specific questioning he stated that he is bisexual.

28. [Dr D]’s report was prepared for unrelated legal proceedings that took place before the s 107 notice was issued. The applicant’s sexuality was unrelated to those proceedings except in so far as that report described the applicant’s overall circumstances, activities and psychological state. There is no apparent reason for the applicant to have given false information to [Dr D], nor did [Dr D] suspect the applicant of being dishonest about any of the information provided by the applicant in that interview. Rather [Dr D] stated that he had no reason to doubt the applicant’s credibility, rather he came across as genuine, candid and a credible historian and witness. 

29. Secondly, the Tribunal heard oral evidence from the applicant’s brother [Mr A] and friend [Mr B] as to the applicant’s sexuality. Both gave evidence that the applicant is bisexual, that they have known him to have sexual relationships with men and women over a number of years and that [Mr B] is his occasional sexual partner. [Mr B] told the Tribunal that he is also bisexual and currently in a relationship with a woman but that he has had an occasional sexual relationship with the applicant since 2018 or 2019, although they do not consider themselves to be partners. [Mr B] gave evidence that he and the applicant had attended gay clubs together and on one occasion they had sex together with a woman. [Mr A] told the Tribunal that he had known the applicant to have relationships with both men and women in Iran and Australia, including [Mr B]. I note that [Dr D]’s report also records that [Mr B] accompanied the applicant to his interview for that report.

30. For these reasons I accept the applicant is bisexual as he now states. I further accept the applicant became engaged to [Ms C] in 2012 after meeting her in [Country 1] because of pressure from his parents to marry. He gave [Ms C]’s mother a power of attorney allowing her to undertake the formalities of the marriage on his behalf and that occurred in Iran in October 2012 while the applicant was still in Australia. The applicant returned to Iran in April 2013 to spend time with [Ms C], but he was unable to provide her with the sexual attention she wished for and the relationship ended quickly. The applicant returned to Australia earlier than he had planned [in] June 2013.

31. The delegate’s decision records that [Ms C]’s agent advised the Department on 5 June 2013 that she was planning to file for divorce and the applicant had withdrawn his sponsorship for the partner visa application. That is consistent with the applicant’s evidence and the date of his return to Australia.

32. In the protection visa application, the applicant stated throughout that he was homosexual, that he had had a number of sexual relationships in Iran and that he had been homosexual all his life. I accept he may not have been trying to deliberately mislead the Department by describing himself as homosexual, but that is not an accurate description of his sexuality either now or at the time the statement was made. Section 100 provides that an answer to a question is incorrect even though the person who gave the answer did not know that it was incorrect. It follows that I am satisfied the applicant gave incorrect information about his sexuality in his protection visa application in the manner set out in the s 107 notice.

    The events that led the applicant to depart Iran in 2011

33. I accept that the applicant was in a same sex relationship with a man in Iran up until his departure from that country in April 2011. However I do not accept the claims made in the statutory declaration dated 10 September 2011 to the effect that one week after their last encounter, his father rang him to tell him that plain clothed men had come to the family home with search warrants and searched the applicant’s room, taking the applicant’s laptop and CDs and telling his father that the applicant had to go to court where he was to be charged with lavat (homosexuality).

34. In making that assessment I have noted the applicant’s brother [Mr A] gave evidence that he was home at the time when people came looking for the applicant at the family home, but he was unable to say who these people were other than that they were from the government. He was unable to recall what they had done, other than they said the applicant should go to the department that they worked for. He did not recall that they had searched the applicant’s room or removed his laptop and CDs as stated by the applicant. I consider his evidence on this issue to be vague and I give it little weight.

35. I have also considered the applicant’s evidence that after being released from immigration detention, he was able to contact his former partner who had by that stage been released from custody for lack of evidence and left Iran for [Country 2]. He claims to have learned that the file against him was most probably closed and would not be pursued by the Iranian courts and that the arrest warrant had lapsed. On this basis he claims to have found the confidence to travel back to Iran in mid-2013, staying in Iran for some weeks and leaving quietly without attracting the attention of the Iranian authorities.

36. However, for the following reasons I do not accept the applicant’s evidence in that regard to be true.

37. Firstly, the applicant now claims that he only returned to Iran in 2013 to marry because of pressure from his parents whom he says are still unaware of his sexuality. When I put it to him that he had made contrary statements in his protection visa application, he stated that they knew only that he was in trouble because he was associated with these people, not because he himself was charged with homosexual activity. This is contrary to his earlier statements, noting the applicant’s statutory declaration clearly indicates his father was aware that the applicant was to be charged with lavat (homosexuality). I do not accept the applicant’s parents would insist upon, or encourage, his return to Iran to marry in circumstances where they believed he faced outstanding charges of that nature.

38. Secondly I do not accept the applicant would have risked a return to Iran in 2013 had he been subject to an arrest warrant in 2011. At hearing the applicant claimed to have spoken to a couple of lawyers in Iran who said there was no risk because his former partner had been released from prison, a claim not made in his response to the s 107 notice. He did not suggest he had made enquiries about the claimed arrest warrant through those lawyers or otherwise before deciding it had probably expired. On the evidence before me I am not satisfied that the applicant was the subject of an arrest warrant or otherwise of adverse interest to the Iranian authorities at the time he left Iran in 2011.

1. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

2. 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).

   The correct information

3. For the reasons set out above, I have found that the correct information is that the applicant is bisexual and that he has had sexual relationships with both men and women in Iran and in Australia. I have found the correct information is that there was not an arrest warrant out for the applicant at the time he left Iran in 2011 and that he was not subject to the criminal charge of lavat or otherwise of adverse interest to the Iranian authorities.

   The content of the genuine document (if any)

4. This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).

   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

5. The applicant was granted the protection visa following a Protection Obligations Evaluation Outcome dated 11 November 2011. The decision record states that the applicant is homosexual and that he faced a real chance of serious harm on return to Iran for reasons of his membership of the particular social group, ‘homosexuals in Iran’. The decision record cites country information indicating that homosexual activities are criminalised in Iran and that persecution of homosexual people by the Iranian authorities is well documented in the country information.

6. The delegate expressed concerns about the applicant’s claims that the Iranian authorities had become aware of his homosexual relationship and that he was smuggled out of Iran by boat from [Town 1]. Ultimately the delegate stated that she had decided to give the applicant the benefit of the doubt and accepted that he was a homosexual male who had departed Iran illegally via [Town 1].

7. I consider the grant of the visa was primarily based on the premise that the applicant was a homosexual male, rather than his claims to have been the subject of an outstanding arrest warrant. While the Tribunal has found the applicant is bisexual rather than homosexual, the penalties for same sex sexual activities apply in either case.

8. I consider this factor weighs against cancelling the visa.

   The circumstances in which the non-compliance occurred

9. The applicant maintains that all of the information provided in his visa application was correct, save that he described himself as homosexual instead of bisexual because of a lack of words to distinguish the two.

10. I have accepted the applicant is bisexual and that he was in a relationship with a male at the time he left Iran. However, I have also found that the applicant knowingly provided the incorrect information about the arrest warrant for the purposes of increasing his chances of being granted the protection visa.

11. I consider this weighs in favour of cancellation of the visa.

    The present circumstances of the visa holder

12. The applicant lives alone in Melbourne. He used to be employed but has been receiving workers’ compensation payments since suffering a workplace injury a number of years ago.

13. The applicant’s parents and siblings also live in Australia and at hearing he and his brother gave evidence that the family had travelled to Australia separately from the applicant before claiming protection for reasons that are not related to the applicant’s claims for protection. There is no information before the Tribunal as to the protection claims of the applicant’s family members other than the applicant’s advice that they do not relate to the circumstances of the applicant.

14. It is submitted that the applicant does not consider himself to be part of Iranian society anymore and wants to keep living in Australia.

15. I give this factor some weight against the cancellation of the visa.

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

16. The applicant maintains that the information the Tribunal has found to be incorrect is correct. I give this factor some weight in favour of the cancellation of the visa.

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

17. The delegate records that there are no other known instances of non-compliance by the visa holder. I give this factor some weight against the cancellation of the visa.

    The time that has elapsed since the non-compliance

18. The relevant non-compliance took place when the applicant provided information in support of the protection visa in 2011 and approximately 11 years have elapsed since then. I consider the long period in which he has lived in the Australian community weighs against the cancellation of the visa.

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

19. The delegate’s decision records that there are no known breaches of Australia’s migration or criminal laws since the non-compliance occurred. I give this factor some weight against the cancellation of the visa.

    Any contribution made by the holder to the community

20. There is no information before the Tribunal about the applicant’s contribution to the community other than the employment referred to above. I weigh this factor as neutral in my consideration of cancellation of the visa.

    Other factors to be considered

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

22. In this case, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

23. In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s protection visa remains cancelled the applicant will have very limited options to make any other visa applications onshore. Section 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application.

24. DFAT reports that Iran has a global and longstanding policy of not accepting involuntary returns and has refused to issue temporary travel documents to facilitate the involuntary return of its citizens. While Iran and Australia signed a Memorandum of Understanding including an agreement to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia, that does not apply to the applicant because of his arrival in Australia in 2011.[1] However, it remains the case that s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal. Therefore, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Iran voluntarily.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

    [1] DFAT Country Information Report: Iran 14 April 2020 at 5.27

25. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

26. In this case the delegate’s decision records that the applicant has been found to be a person to whom Australia owes protection under the Refugees Convention. The delegate states that if the applicant’s visa is cancelled, an International Treaties Obligation Assessment would be completed by the Department before a decision is made to remove him from Australia. The delegate concludes that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin.

27. Amendments to s 197C of the Act since the delegate’s decision have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c)  none of the following apply:

    (i)  the decision in which the protection finding was made has been quashed or set aside;

    (ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

28. In this case a Protection Obligations Evaluation Outcome found the applicant was owed protection as a refugee on 11 November 2011. The applicant made a valid application for a protection visa on 13 December 2011 and that application was finally determined when the applicant was granted the visa on 14 December 2011. In these circumstances s 197C(3) does not require or authorise the applicant’s removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.

29. In this case the decision to grant the applicant a protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

30. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

31. However, cancellation may lead to prolonged detention for the reasons already explained and I consider this weighs against cancellation of the visa.

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

32. For the reasons set out above, the Tribunal has accepted the applicant is bisexual and that he has had relationships with men and women in Iran and in Australia. The current DFAT report indicates that Iran’s Penal Code criminalises all sexual relationships outside of traditional marriage and explicitly criminalises same-sex relations, including where consensual in nature. Punishment for male homosexual acts are severe and can include execution on the first conviction. Overall DFAT assesses that LGBTI persons who openly express their sexual orientation face a high risk of official and societal discrimination, including potential arrest and prosecution. I consider that this impacts on the applicant’s ability to voluntarily return to Iran and this matter weighs against cancellation of the visa.

33. It is submitted that since his arrival in Australia the applicant has converted to Christianity and also posted a significant number of politically sensitive posts on social media. The Tribunal has been provided with a copy of a baptism certificate suggesting the applicant was baptised in June 2015 but no other evidence of his current religious practice or beliefs. Similarly the applicant has provided a number of screenshots said to constitute posts by the applicant on WhatsApp and [Social Media 1] but those posts are not translated and their contents are not known to the Tribunal. Given the Tribunal’s above findings about the protection finding already applying to the applicant, it is not necessary for the Tribunal to make any findings on these new claims.

    EXERCISE OF DISCRETION

34. While I have had regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case, rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[2]

    [2] MIAC v Khadgi (2010) 274 ALR438 at [68]

35. I have considered the factors which weigh in favour of cancelling the visa, most notably the Tribunal’s finding that the applicant knowingly provided the incorrect information for the purpose of increasing his chances of being granted the protection visa. However, in balancing all of the relevant factors I consider that the matters to which I am required to have regard weigh overall against cancelling the applicant’s visa.  In particular I give weight to the following matters:

    ·The Tribunal is satisfied the applicant is bisexual and that he has had sexual relationships with both men and women in Australia and Iran. While the Tribunal is not satisfied he was subject to an arrest warrant or otherwise of interest to the Iranian authorities for this reason at the time he departed Iran, the Tribunal considers that had the correct information about the applicant’s sexuality been known to the delegate when the decision to grant the visa was made in 2011, the outcome is likely to have been that the applicant would still have been assessed as a person owed protection for reasons of his sexuality. The situation for the LGBTI community in Iran remains precarious, with DFAT assessing that LGBTI persons who openly express their sexual orientation continue to face a high risk of official and societal discrimination;

    ·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As a consequence he cannot be removed from Australia unless the decision finding that the non-citizen engages protection obligations is quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal;

    ·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged unless he decides to return to Iran voluntarily and that prospect appears remote, given the continuing situation for the LGBTI community in Iran;

    ·The applicant’s family are resident in Australia where they are seeking protection for reasons unrelated to the applicant’s claims. Both the applicant and his family have been in Australia for 10 or more years. I accept that should the applicant be returned to Iran, he will be separated from his family which will cause hardship to both him and his family.

36. For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.

    DECISION

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

    Alison Murphy
    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.