2017623 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Iranian national. The applicant arrived in Australia in May 2011 and was granted a protection visa based on his claim of being a homosexual man facing persecution in Iran. The Department of Home Affairs later became aware that the applicant had married an Iranian national in April 2013 and returned to Iran for approximately seven weeks, leading to a notice under s 107 of the Migration Act 1958 indicating a potential cancellation of his visa due to providing incorrect information.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with his obligations under s 101(b) of the Act by providing incorrect information in his protection visa application, specifically concerning his sexuality and the circumstances of his departure from Iran. This involved determining if the applicant's subsequent marriage and return to Iran contradicted his claim of being a homosexual man fearing persecution, and whether the information provided regarding an arrest warrant and the imprisonment of his partner was accurate. The Tribunal also considered the applicant's assertion that he was bisexual, not exclusively homosexual, and the implications of this for his original claim and the subsequent cancellation notice.

The Tribunal found that while the applicant had knowingly provided incorrect information regarding the arrest warrant to enhance his visa application, this factor weighed in favour of cancellation. However, the Tribunal also accepted the applicant's evidence that he was bisexual and that the term "homosexual" was used in his application due to a lack of a specific word for "bisexual" in Persian, and that penalties for same-sex activities apply regardless of whether one is homosexual or bisexual. The Tribunal noted that the visa was primarily granted on the basis of the applicant being homosexual, and that his bisexuality did not negate the risk of harm if returned to Iran. Considering the applicant's lengthy residence in Australia, the presence of his family in Australia on unrelated protection claims, and the fact that penalties for same-sex activities apply in Iran, the Tribunal exercised its discretion not to cancel the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel it.