2112150 (Refugee)

[2023] AATA 2473

2112150 (Refugee) [2023] AATA 2473 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Andrea Main (MARN: 5510144)

CASE NUMBER:  2112150

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE: 6 April 2023

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 06 April 2023 at 11:50am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – nationality – claimed statelessness – Iranian citizenship – consideration of discretion – grant of visa based on incorrect information – knowing and deliberate – 2008/09 green movement protest – Faili Kurd – genuine personally held fear – time elapsed since the non-compliance – indefinite detention in Australia – Memorandum of Understanding on Consular Matters (MOU) – non-refoulement considerations – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
DFO19 v MICMSMA [2023] FCAFC 38
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 the applicant had provided incorrect information in breach of s 109 and that delegate found the grounds for the cancellation outweighed other matters. 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 6 March 2023 to give evidence and present arguments. A resumed hearing was conducted on 24 March 2023. Both of the scheduled hearings were conducted with the assistance of interpreters in the Farsi 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

   Background

8. [In] October 2010, the applicant arrived in Australia as an illegal maritime arrival (IMA), seeking protection on account of being a Faili Kurd, living as a stateless refugee in Iran, and claiming that the applicant will be targeted by the Basij or the Iranian authorities if he returned to Iran. The applicant advised that he was born in [District 1], Iran on [date], that he was stateless with no citizenship of any country, and had no identification documents in Iran.

9. On 8 April 2011, a Refugee Status Assessment (RSA) found the applicant did not meet the definition of a refugee set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and was not someone to whom Australia owes protection obligations. Subsequently, on 28 March 2012, the Minister lifted the bar, allowing the applicant to make a Protection visa application.

10. On 13 April 2012, the applicant applied for a Protection (subclass 866) visa. As part of the applicant’s application, he submitted signed forms 866B and 866C ‘Application for a Protection (Class XA) visa’.

11. A protection visa was granted to the applicant on 30 April 2012.

    Citizenship application

12. On 31 August 2017, the applicant lodged an application for Australian citizenship.

13. On 27 March 2019, the Department sent the then visa holder of a Protection visa a Natural Justice letter, affording him the opportunity to comment on the information related to his claimed statelessness.

14. The applicant provided a response to the Natural Justice letter on 24 April 2019, and provided, among other documents, evidence of his identity, which included his Iranian Birth Certificate, Iranian National Identification Card, Exemption from Compulsory Military Service Card, and their respective translations. The application was refused by the Department on 21 June 2019 because the delegate was not satisfied of the then visa holder’s claimed identity.

15. The decision was remitted to the Department for reconsideration on 5 May 2020.

16. As part of the re-consideration of the Citizenship application, the delegate found that the then visa holder is an Iranian citizen, and refused his Citizenship application on 30 March 2021 because the decision maker was not satisfied the applicant was of good character as he had claimed to be a stateless Faili Kurd.

17. Furthermore, information before the Department indicates his siblings, [Mr A] and [Ms B], have admitted to being Iranian citizens, and provided evidence of that they citizens of Iran to the Department.

    Did the notice comply with the requirements in s 107?

18. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107. 

19. On 11 May 2021, the Department issued a NOICC (Notice of Intention to Consider Cancellation) in respect of the applicant’s Protection (Subclass 866) visa.

20. The applicant’s NOICC response indicates the applicant accepts that he provided incorrect information about his nationality and identity and in his statement of claims for protection. The accompanying statutory declaration signed by the applicant on 25 May 2021 states:

    I understand that making false statements to the Australian government is very serious. I deeply regret that I provided the wrong information and I am very, very sorry. I take full responsibility for my actions.

    Not telling the truth has caused me a lot of shame and distress. I wanted to tell the Department the truth for a long time. I didn’t, however, because I was scared that I would be sent back to Iran, where I fear I will be persecuted.

    I am so sorry and deeply regret what I have done.

21. The applicant attended scheduled hearings with the support of his representative. Neither at the hearings nor in a post hearing submission did the applicant or anyone on his behalf disagree that non-compliance existed as outlined in the s 107 notice.

22. Given the applicant’s written and oral admission that he has provided incorrect information about his nationality in a Protection visa application, the Tribunal finds that there was non-compliance with s 109 by the applicant in the way described in the s 107 notice.

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

23. 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). Section 101(b) states:  

    Section 101     Visa applications to be correct s101.

    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

24. In the application form 866C, the applicant declared the following information (answers in italics):

    At Question 20: Your current citizenship (if different to at birth)

    Stateless

    At Question 22: Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) of nationality or your former country(s) of habitual residence?

    No a

    At Question 23: If you are stateless, how, when and why did you lose your citizenship?

    My parents were born stateless. Because my parents were stateless at the time of my birth I did not acquire citizenship of or a right of residence in any country.

    At Questions 42 and 43, which asked why you left the country and what you fear may happen to you, you answered

    Please refer to my statutory declaration. I have considered your statement of claims (dated 3 April 2012) to be the statement to which you refer to.

    At Question 44: Who do you think may harm/mistreat you if you go back?

    Please refer to my statutory declaration.

    At Question 45: Why do you think this will happen to you if you go back?

    Please refer to my statutory declaration.

    At Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?

    Please refer to my statutory declaration.

25. In summary, the applicant’s statement of claims (dated 2 April 2012) claimed he left Iran because as a stateless Faili Kurdish person, he experienced persecution by the Iranian authorities and the Basij. He claimed he was harassed by the Basij, and that the applicant feared he would be harmed, beaten or even killed if he were to return to Iran because of perceived opposition to the regime.

26. The NOICC stated that it has taken into account the information submitted as part of his citizenship application, which identified the visa holder as an Iranian citizen, and not stateless (as claimed in his Protection visa application). Also taken into account was his siblings’ admissions to being Iranian citizens, and their accompanying evidence of their Iranian nationality to the Department.

27. The NOICC, in summary, wrote that it appears the abovementioned information is incorrect because information before the Department indicates the then visa holder is an Iranian citizen, and was an Iranian citizen at the time of application for his Protection visa, and not stateless as claimed. As an Iranian citizen, the applicant would have had complete access to the Iranian education system and would not have experienced persecution by the Basij on account of being a stateless Faili Kurdish person. Further, the applicant’s parents and his siblings are Iranian citizens and aside from the two siblings in Australia, the rest of your family continues to live in Iran. It therefore appears the applicant did not genuinely fear he would be harmed on account of being a stateless Faili Kurd and did not leave Iran for the reasons claimed in his Protection visa application.

28. Taking the applicant’s response to the NOICC into account, the delegate acting on behalf of the Minister cancelled the applicant’s Subclass 866 Protection visa on 7 September 2021.

29. On 10 September 2021, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. No copy of the delegate’s decision record was attached to the application for review.

30. On 3 February 2023, the Tribunal emailed the representative to invite the applicant to comment. The particulars put to the applicant included, in summary:

    ·     The decision record dated 30 March 2021 to refuse the applicant Australian citizenship by conferral in according to the Australian Citizenship Act; which states that the applicant lodged an application for Australian citizen on 31 August 2017; and it was refused on 21 June 2019. The decision maker based the decision to refuse under Subsection 24(3) of the Australian Citizenship Act 2007;

    ·     On 5 May 2020, the AAT remitted the matter to the Department for further consideration with the direction that the prohibition under s 24(3) of the Act no longer applies to the applicant;

    ·     The applicant provided identity documents (with translations into English) including the applicant’s birth certificate, exemption from military service; national identity card;

    ·     The applicant responded to the Department’s invitation to comment on adverse information dated 27 March 2019 and 30 November 2020; and the reasons for the refusal of citizenship included an assessment that the applicant was not of good character as the delegate had regard to the applicant having knowingly engaged in identity fraud which led to the applicant being granted a Protection visa in 2012; and

    ·     A copy of the delegate’s September 2021 cancellation decision outlining the grounds for the cancellation under s 109 of the Act, and the reasons the visa should be cancelled.

31. A response to the invitation to comment was provided on 28 February 2023, which included a statutory declaration signed by the applicant and dated 27 February 2023. The applicant’s statement reiterated his regret for providing incorrect information, claiming among other things that he did not understand the law and felt afraid to correct the record as he could lose his visa.

32. The response included a number of digital photographs of the applicant at [a] 2023 protest in Melbourne, in which the applicant can be identified as holding an anti-regime sign: “[text on sign redacted]’; screenshots of anti-regime memes on the applicant’s social media account; a legal submission prepared by the representative; and research article about the impact of immigration detention on mental health by von Werthern et al, published in 2018 in BMC Psychiatry.

33. The Tribunal also received on 3 March 2023 a statutory declaration by [Ms C] dated 1 March, and an undated digital video of anti-Islamic Republic protest in Melbourne from [media outlet]. A further statutory declaration by [Mr D] dated 4 March 2023 was forwarded to the Tribunal on 6 March 2023.

34. At the scheduled hearings at which he was represented, the applicant again admitted the grounds for cancellation existed in his matter.

35. The applicant has provided the Department evidence of Iranian citizenship undermining his claim to be stateless which led to the granting of a Protection visa. The applicant’s written and oral admissions is that he has provided incorrect information about his nationality in a Protection visa application. Accordingly, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    SHOULD THE VISA BE CANCELLED?

36. 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).

37. 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; and

    ·any contribution made by the holder to the community.

38. 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.

    the correct information

39. In this matter, the correct information is that the applicant is not stateless and is an Iranian citizen at the time of application on 12 April 2012. This is supported by the Iranian documentation confirming his status as an Iranian citizen. Claiming to be stateless and without any citizenship, the applicant admitted to the Department and the Tribunal during this cancellation process, was incorrect information. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled.

    the content of the genuine document (if any)

40. This case involves the applicant having provided incorrect answers on his visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant in this case and the Tribunal gives it no weight.

    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

41. In this matter, the grant of the visa on 30 April 2012 to the review applicant was based wholly on incorrect information about the applicant’s lack of nationality in his country of former habitual residence, the Islamic Republic of Iran. Namely, the applicant argued that he faced a well-founded fear of being persecuted by the authorities and its discriminatory practices towards stateless Faili Kurds, and that this enlivened Australia’s protection obligations under the Refugees Convention. Had the applicant provided the correct information at the time of application or corrected the information before the grant of the visa, the Department is very likely to have reached a different decision about whether to grant the visa. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled

    the circumstances in which the non-compliance occurred

42. As part of his response to the NOICC, the applicant claimed the following about his circumstances in which the non-compliance occurred:

    ·     The applicant departed Iran in 2010 because he feared persecution due to his ethnicity and his antigovernment political opinion;

    ·     He arrived in Australia as an irregular maritime arrival in October 2010. During the voyage from Indonesia to Australia, the applicant was under pressure to provide incorrect information by the smuggler;

    ·     The smuggler told the applicant to inform the authorities in Australia that he was stateless and to destroy Iranian identity documents, or those authorities would return him to Iran;

    ·      The applicant told the smuggle he wanted to tell the truth and provide his Iranian documents, but he was warned by the smuggler and others on the boat threated to throw him overboard;

    ·     When the applicant arrived in Australia’s Indian Ocean territory of Christmas Island, the interpreter who was assisting him told him to say he was stateless and not Iranian as that will be a big mistake;

    ·     The applicant did not correct his national status from stateless to Iranian citizen as he feared returning to Iran where he faced persecution;

    ·     The applicant said he had been arrested, detained and interrogated by the authorities in the past, during which his hand and nose had been broken, and he had been flogged. He added he did not receive any medical attention; and

    ·     The applicant added that he also feared persecution as he rejected Islam in 2009 and is exploring and learning about Christianity.

1. During the hearing, the applicant closely reiterated these circumstances and his state of mind at the time when the non-compliance occurred. The applicant said he was regretful, and it weighed on is conscience, but he was afraid of being returned to Iran and being persecuted by the Iranian authorities.

2. The applicant has also advanced a claim that he did not understand the law in Australia at the time of advancing incorrect information. At the time he was supported by an interpreter and legal representative. The protection application and statutory declaration indicate he made signed undertakings that everything submitted was true and correct as far as he knows and believes. The Tribunal does not accept this and finds the applicant knowingly and deliberately contrived his nationality status as stateless to have a Protection visa granted on a fraudulent basis.

3. When the applicant left the Islamic Republic of Iran as his country of origin and nationality at a time of some political turmoil and economic downturn. This includes the 2008/09 green movement protests and subsequent crackdown against dissenters by Iranian authorities. The Tribunal accepts the applicant was harmed because of a crackdown against green movement protesters.  

4. The Islamic Republic was and remains ruled by a largely unaccountable government which has a shocking human rights record and is deeply resistant to international criticism.  Income and wealth inequality was and remains pronounced. DFAT further assesses that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities. Those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment, and mistreatment. Later in the hearing, the Tribunal asked if the applicant ever joined any Kurdish political organisation in Australia, to which he responded he did not. While the applicant is not a person who has ever openly supported Kurdish self-determination, he did hold a deep and genuine fear of being harmed based on his past political activity in the green movement and that this fear was heighted by ethnicity. 

5. On the other hand, the applicant departed Iran on his own passport without any harassment. There is no credible evidence to suggest the applicant was a person of interest to the authorities for any reasons at the time of non-compliance.

6. On balance, the applicant appears to have lodged his Protection visa application in April 2012 on the basis that he had a genuine personally held fear of being punished on return. In this regard the Tribunal places a notable amount of weight on his state of mind at the time of application in favour of having this visa not remaining cancelled.

   the present circumstances of the visa holder

7. The applicant’s present circumstances do not include being a stateless person who country of usual residence is Iran. The applicant admits to providing the incorrect information outlined above but he also expressed his remorse for submitting such contrivances and how it impacted on his relatives. The Tribunal places some but not a significant amount of weight on the applicant’s remorse as a factor in favour visa not remaining cancelled.

8. The applicant attempted to advance that he had explored some casual interest in Christianity with a close friend. He does not claim to be a Christian or an apostate from Islam to Christianity. Nonetheless, the Tribunal does accept that he no longer identifies as a Muslim or a Shia Muslim and that he enjoys the freedoms of religion and conscience that his residency in Australia has given him. The Tribunal places some weight with on the applicant’s valued freedoms of religion and conscience on his visa not being cancelled.

9. The applicant does not have any children or any other dependents. He does have two close relatives living in Australia and does not wish to be separated from them. However, in returning to Iran, the applicant would also be reunited with family members. The applicant does, however, had an animal companion, a dog, for whom he fears being separated should this visa remained cancelled. The applicant claimed he shared responsibility for his animal companion with his close friend and neighbour. Under such circumstances, the animal companion would not be neglected if the former visa holder had to voluntarily departed or be placed into indefinite detention. That is not to discount the adverse impact of the separation of the applicant from his animal companion. Given the lack of dependents who solely rely on him, the Tribunal places a small amount of weight on these factors in the applicant’s favour.

10. Cumulatively considered, the Tribunal finds that those factors in his current situation, do not amount to being compelling and compassionate reasons in favour not having his visa remain cancelled, but it does place some weight on them in his favour.

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

11. The applicant had ample opportunity to admit to providing incorrect information to the Department in relation to his misleading identity as a stateless Faili Kurd. It was not until his response to a NOICC in 2021 that he admitted to providing incorrect information. As the applicant has maintained these contrivances for such a significant amount of time, the Tribunal places considerable weight on this factor in favour of the visa remaining cancelled.

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

12. According to the Department, there are no further instances of non-compliance by the former visa holder. The Tribunal places no weight on this factor in favour of the visa remaining cancelled.

    the time that has elapsed since the non-compliance

13. The non-compliance occurred when the visa holder lodged his Class XA Subclass 866 Protection visa application in April 2012. It is now April 2023. This is a significant amount of time. The applicant has also demonstrated to the Tribunal that he has integrated into the Australian community, and is an individual who pays his taxes and otherwise abides by the laws of Australia. He also demonstrated to belong a strong circle of mutual solidarity among Iranian Australians through supporting statements provided by various friends confirming that the applicant has settled well into the community.

14. Therefore, this factor should be given significant weight in favour of the visa not being cancelled.

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

15. With no evidence of any criminal charges or convictions against his name, there is nothing to suggest that the applicant is not a person of good character. The Tribunal, therefore, gives this factor some weight towards the visa not being cancelled.

    any contribution made by the holder to the community

16. The applicant stated that his contributions to the community include his status as a taxpayer and a loyal friend to others. He did not claim to have volunteered in the community, but that he contributed to donating 200 to 300 Australian dollars on a monthly basis from his modest income for the welfare of stray or neglected dogs. The applicant was keen to press upon the Tribunal that he had much empathy and zeal for the well-being of dogs.

17. The Tribunal accepts the applicant makes a small but meaningful contribution to Australian society. The Tribunal accordingly places a small amount of weight on this factor in favour of the visa not remaining cancelled.

18. The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.

    Discretionary considerations

19. The Tribunal has gone on to consider other factors where relevant on the material before it or as raised under policy.

    whether there would be consequential cancellations of other persons’ visas under s140

20. There are no other persons whose visas may be cancelled as a consequence of the applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

21. Should the applicant depart Australia, it is open to him to apply for an offshore visa, but he would do so with no guarantee of success. The Tribunal places some weight on this factor in his favour.

22. Should the applicant’s subclass 866 visa remain cancelled, he would not be eligible to apply for another visa in Australia and face the possibility of being detained and then removed from Australia. The Tribunal places some weight on the factor in his favour.

23. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters (MOU). This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018, and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. The applicant, as an Iranian citizen who applied for a visa prior to the effect of abovementioned MOU. For this reason, he faces a strong likelihood of indefinite detention in Australia.

24. Indefinite detention includes a holding people in detention facilities. This is also referred to as ‘closed’ detention. As well as holding people in closed detention, the Australian government uses a form of detention referred to as ‘community detention’, where people live in the community but in a specified place determined by the government (known as ‘residence determinations’), under certain restrictions. Home Affairs statistics as of January 2023 indicate that 1061 persons, including asylum seekers are in closed detention and 516 in community detention. The average days in closed detention is 806. By country of origin, the largest numbers of person in closed detention are from New Zealand, Iran and Vietnam; while the largest numbers of person in community detention by cohort are from Iran, Iraq and stateless persons.

25. Regard has been given to the letter provided by the applicant’s medical practitioner dated 30 June 2021. It indicates that the general practitioner, [Dr E], has been treating the applicant since 2015 for lower back pain and a mental condition. He also confirms that Mirtazapine (an anti-depressant) and Norgesic (a muscle relaxant and pain killer) has been prescribed to the applicant.

26. A significant amount of psychiatric research on the impact of immigration detention on mental health concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. In particular the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[1]

    [1] CSV15 v MIBP [2018] FCA 699

27. The effect of either closed or community detention will have a deteriorating affect on his depressive symptoms through social isolation and restricted activities. The Tribunal has found this troubling given the extensive amount time that has elapsed since his arrival in 2010. The Tribunal places notable weight on the factor in his favour.

    Non-refoulement considerations

    Refugees Convention and complementary protection provisions

28. The applicant’s recent statement dated 27 February 2023 maintains the applicant is a Faili Kurd and that Australia owes him its protection obligations under s 36(2)(a) and s 36(2)(aa) on the basis:

    ·     The applicant holds political opinions in opposition to the Islamic Republic and he has participated in recent protests against the regime;

    ·     He has a history of previously experienced detentions, interrogations and torture by the authorities:

    ·     His ethnicity as Kurdish will heighten his risk of serious or significant harm with the authorities;

    ·     He rejects Islam and will be perceived as an apostate or as a Christian upon return; and

    ·     The applicant as a failed asylum seekers will be imputed with anti-government political opinion based on his Kurdish ethnicity; because he sought asylum in Australia; and because he is an involuntary returnee from a Western country.

29. Firstly, the Tribunal has considered the applicant’s claims as on being forcibly or involuntarily returned to Iran as a failed asylum seeker.

30. In DFO19 v MICMSMA [2023] FCAFC 38, the Full Federal Court dismissed application for judicial review of decision by the Administrative Appeals Tribunal.[2] DFO19 claimed, among other things, to face harm as a failed asylum seeker. He said during the Tribunal hearing that he ‘cannot return voluntarily’ to Iran. In considering whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran under s 36(2)(aa) of the Migration Act 1958 (Cth), the Tribunal considered the prospect of both involuntary and voluntary return. It concluded, the Iranian government would not revisit its practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the date of a Memorandum of Understanding between Iran and Australia facilitating return of Iranians who arrived in Australia after this date with no legal right to stay (MOU). The Tribunal considered the Department would not return him involuntarily. If he persisted in not returning voluntarily, he would not return and as such would not face a real chance of serious harm (for the purposes of s 36(2)(a)) or a real risk of significant harm. The Tribunal in that matter also considered the circumstances if he were to return voluntarily, taking account of the circumstances he would face, if found he did not face a real chance of serious harm or real risk of significant harm. The FFC found not jurisdiction error.

    [2] DFO19 v MICMSMA [2023] FCAFC 38 Federal Court of Australia, Banks-Smith, Jackson and O’Sullivan JJ, WAD 304 of 2020, SAD 145 of 2020, 15 March 2023

31. The relevant claims and circumstances of the DFO19 and the applicant were similar as both arrived in Australia before the above-mentioned MOU was signed. For these reasons, the applicant does not face the prospect of facing a real chance of serious harm or a real risk of serious harm of being an involutory returnee and therefore, being subjected to the kinds of interrogations on arrival that failed asylum seekers. On the basis the Tribunal is not obliged to consider claims divorced from all practical reality, the Tribunal places very little weight Australia’s non-refoulment obligation under ss 36(2)(a) and 36(2)(aa) in so far as the applicant has no practical likelihood of being returned.

32. Secondly the Tribunal has considered whether Australia has any protection obligation to the applicant as voluntary returnee.

33. In this review of a cancellation of a Protection visa, the Tribunal notes that the applicant outlined to it that he had a number of incidents with authorities which involved maltreatment. The Tribunal noticed there were similarities arising from these past incidents in his claims from 2012. The significant difference is that past incidents in his original set of claims revolved around his claimed, but now admittedly contrived, stateless Faili Kurd status. It is open to the Tribunal to make adverse credibility findings about these later claims regarding past harm incidents. Nonetheless, the Tribunal has been able to overcome these misgivings and it accepts the following:

    ·     In 2003 the applicant and some friends travelled to Iraq without a travel document. On return, the applicant was detained and accused of being a member of the People’s Mojahedin Organisation of Iran (Mojahedin-e-Khalq Organization or MEK) - a militant left-wing populist outfit organising and advocating for the overthrow of the Islamic Republic of Iran;

    ·     In 2007, the applicant as a [Occupation 1] was booked for speeding at Hamedan while driving between Tehran and [District 1]. The applicant had his licence suspended for 45 days and fined; and.  

    ·     In 2009, the applicant attended a green movement protest at [District 1] at which he marched and sloganeered. The applicant was detained for ten days and interrogated during which his nose was broken.

34. However, the Tribunal has identified one notable embellishment from these late claims. It accordingly does not accept the applicant was released on bail as a low-level protester in 2009 or that his father provided a land title as surety should the applicant breach the bond. Neither does it accept the applicant breached such bail or that there is any documentary evidence to support this claim or that the applicant is a person of interest arising from his breach of bail, as claimed.

35. The Tribunal accepts the applicant to be a Faili Kurdish from predominately Kurdish Ilam province in western Iran.

36. The Tribunal has had regard to a 2018 joint report from the Danish Immigration Service and the Danish Refugee Council on Iran found that Kurds who assert their ethnic and religious identity are a target, as well as Kurds who engage in or are associated with political activities. Kurds who promote or are perceived as promoting separatism are also targeted, as are those who are affiliated with women’s rights. The Tribunal has also had regard to the UK Upper Tribunal guidance case of HB,[3] which is approved in the UK Home Office Guidance, issued in January 2019. It stated that even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment (of the IPCC).

    [3] HB (Kurds) Iran CG [2018] UKUT 430 (IAC), (heard 20-22 February and 25 May 2018 and promulgated 12 December 2018), available at >

    The applicant has never joined a political party or organisation while in either Iran or Australia. He does not have a profile in Iran or Australia as a supporter of Kurdish specific causes whereby he will be considered as a separatist or a person of concern. The Tribunal does not discount the suspicions Kurdish Iranians are held by many in authority whereby the applicant has a likelihood to be interrogated, detained, suffer significant physical ill-treatment, torture or long-term imprisonment. The Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not a real chance or real risk as voluntary returnee. 

37. The applicant was raised as a Shia Muslim, which is typical of Faili Kurds. He claims that he rejected Islam and the Koran in 2009 and that he explored Christianity while in Australia. He has not claimed to be an apostate to another religion, including Christianity. The Tribunal acknowledges the country information from the 2020 DFAT report which states; while apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shia members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytization. The Tribunal has also had regard to the DFAT assessment that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT further assesses that atheist who are open about their non-belief face a moderate level of official and societal discrimination.

1. The Tribunal is not persuaded that the applicant’s current religious outlook and public expression about Islam, including his very limited social media activities, amounts to him coming to the attention of the Iranian authorities as a voluntary returnee. His lack of religiosity will not be conspicuous by his lack of fasting or attending mosque or his dress code as claimed, as such practices are common in Iran, even among Shia Muslims. Accordingly, the Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not a real chance or real risk based on his claims as a secular former Muslim or as non-Muslim Iranian or as a person imputed as an apostate from Islam to Christianity, or as a proselytising Christian in returning voluntarily to Iran.

2. However, the Tribunal acknowledges and accepts that the applicant holds genuine anti-government political opinions.

3. The Tribunal is, nonetheless, not persuaded that the applicant faces a real chance of serious harm, or a real risk of significant harm based on his political opinion claims. The Tribunal does not discount the likelihood that he has been monitored by employees of Iranian diplomatic missions or by those who monitor local media or online activities by Iranian security forces. This includes his image being captured by Australia’s Special Broadcasting Service (SBS). However, the applicant has been an infrequent and late participant in such protests and his social media posts are not extensive or over sustained period.  

4. DFAT reports that Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation. Social media accounts of well-known figures and celebrities attract particular scrutiny. Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times. The Tribunal accepts a wider net has been cast against protesters by the authorities as larger anti-regime protesters have proliferated throughout Iranian cities since the publication of the last DFAT report.

5. In the applicant’s accepted circumstances, as a voluntary returnee and based on his accepted but low-level sur place activities in the recent past, do not amount to him suffering a real chance or a real risk arising his anti-government political opinions coming to light and leading to serious or significant harm.

6. The Tribunal accepts the applicant will sufficiently be motivated to participate in anti-government protests in Iran as many Kurdish citizens of Iran have in recent times. Yet, even under those circumstances, the Tribunal does not accept the applicant has a real chance of serious harm for a nexus reason or a real risk of significant harm based on his political opinion activities in returning voluntarily to Iran.

7. When cumulatively considering the applicant’s circumstances as voluntary returnee, the Tribunal places some but not a significant amount of weight in Australia’s obligations of non-refoulement in favour of the review applicant.

   Rights of the Child

8. One of the principles under Australia’s obligations is for decision makers to consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. The PAM3 Guidelines state that “if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children”.

9. There are no children affected in this matter is an Australian citizen. Accordingly, the Tribunal places no weight on this factor in favour of the visa not remaining cancelled.

   any other relevant matters.

10. There are no further relevant matters to consider.

    Conclusion

11. 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.

12. The non-compliance under s 101(b) in this matter was deliberately and knowingly dishonest and serious in nature. The applicant does not have any dependants. The principle of non-refoulement through forcible removal is not applicable to the applicant’s circumstances and his chances of serious harm and risks of significant harm are remote and not real or substantial.

13. Nonetheless, there has been a significant amount of time that has passed since the non-compliance occurred. Moreover, the Tribunal has assessed the adverse impact of indefinite detention on the applicant and his mental health in the context of his otherwise good character, as a significant reason in favour of the Protection visa not remaining cancelled.

14. In summary, the Tribunal evaluates that there are more factors in favour of the visa being reinstated when weighed against those countervailing factors against its reinstatement.

15. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Brendan Darcy
    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.