2112154 (Refugee)

2112154 (Refugee) [2021] AATA 5170 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2112154
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:30 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the visa-holder’s Subclass 866 (Protection) visa.

Statement made on 30 November 2021 at 11:35am
CATCHWORDS

REFUGEE – cancellation – Subclass 866 (Protection) visa – Iran– visa-holder had voluntarily returned to Iran on two occasions – incorrect information provided in protection application – homosexuality – fabricated claim – applicant is of no interest to authorities in Iran – drug offences – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101,102,103, 107, 109, 424AA,494B
Migration Regulations 1994, r 2.55, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the visa-holder’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa-holder had voluntarily returned to Iran on two occasions even though he claimed to face serious harm if he returned there, and that he subsequently deliberately withheld this information on passenger cards. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The visa-holder appeared before the Tribunal on 19 October 2021 and at a second hearing on 27 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from an Australian Federal Police officer, the visa-holder’s alleged gay partner and a person who was allegedly a gay sexual partner of the visa-holder.
The visa-holder was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the visa-holder’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The adviser claimed that the s 107 certificate was not valid for the following reasons:
a.The statutory requirements of s.107 were not met because the NOICC issued to the visa-holder on 17 March 2017 did not correctly state how the timeframe for response was to be calculated. This was based on the fact that a copy of the NOICC was sent by registered post to [ORGANISATION 1]), and the adviser argued that because [ORGANISATION 1] address was never ‘provided to the Minister by the recipient for the purposes of receiving documents’ (as per s 494B(4)(ii) of the Migration Act) and therefore the visa-holder was deemed not to have received the letter as he had not provided the address to the Minister (it had been obtained via the Police Liaison Unit once it was found he was in prison), and the NOICC as a consequence did not correctly state how the timeframe for response was to be ascertained.
The applicant was questioned about various efforts that the Department had gone to in order to service him with the NOICC. He was told about s 424AA and he was told about the existence of a [Suburb 1] and a [Suburb 2] address and that the Departmental computer ystem history said that he had provided the [Suburb 1] address to them. This would make the notification valid. He claimed that every address he moved to, he updated to Centrelink so he could be paid. Asked if he had a forwarding address for his mail when he changed address, he said he didn’t know this as he didn’t usually get mail. He got bank statements but changed his address with them and Service NSW. Asked about his email addresses that he provided to the Department, he said he used the same address from 2011-16. They could send it there.
He had [one email] and [a second email]. He said he couldn’t open them as he forgot the passwords. Asked how he forgot the passwords for both in 2016 as this was hard to believe, he said he forgot the [second email] address but he opened a new one instead of the other because he wanted a new one. It was put to him that the NOICC was sent to both these email addresses. He was asked if he hit the ‘forgot password’ function for his [second email] address and he said that he didn’t but didn’t know why he didn’t. It was put to him that the NOICC was sent to these addresses so the concern was that he had received the notification. To the best of the Tribunal’s knowledge, the Department didn’t get the mail addresses from Centrelink.
He asked when the notification was sent and he said he was in prison. It was put to him that it did get to prison and he had said that he received it and flushed it down the toilet. He also claimed that he couldn’t access his email addresses in prison. He was asked how the Department got the street addresses and he said that he didn’t know if it wasn’t from Centrelink. He said he couldn’t remember if he had provided them an address.
He was asked how they found out he was in prison in 2017 when they sent him the NOICC and the Tribunal said this may have been from Centrelink. The adviser was told about where the addresses came from and she raised concerns that people once released from immigration detention had no obligation to keep the Department updated of their address. She was advised that a copy of the screen shot would be provided.
Having explored the issue I do not accept the adviser’s claim to be a correct (or accurate) recounting of the notification process. Section 107 does not require that the notification process outlined in s 494B(4) must be followed. Rather, s 2.55 of the 1994 Migration Regulations is what covers the giving of documents relating to the proposed cancellation of visas and this simply requires the notification to be given to the last address (residential, email, fax, post box address) known to the Minister.
I am satisfied that the regulation was followed given the following actions:
a.NOICC dated 28 October 2016 sent to an address at [Suburb 1]. This was an address provided by the visa-holder on his incoming passenger card on [date] December 2014;
b.NOICC dated 12 January 2017 sent to an address at [Suburb 2], and to two email addresses. This address and the email addresses were obtained via a check with Centrelink, although one of the email addresses was also given on the same passenger card as above;
c.NOICC dated 17 March 2017 was sent to [ORGANISATION 1] and was received by the visa-holder who claimed that he tore it up and flushed it down the toilet as he was fearful of keeping the letter in case people found out about his homosexuality. The Department followed this up when it found he was [in prison] and another copy was dispatched to the visa-holder on 29 May 2017 at his request. He claims not to have received it, although a security manager was contacted and said he had not received a response to the notice from the visa-holder; and
d.The NOICC did correctly state the timeframe for response.
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?
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 sections 101 (b) and 102 (b) of the Act in the following respects:
Section 101 (b) non-compliance:
On 29 August 2011 the visa-holder lodged a Form 866 – Application for a Protection (Class XA) visa. At question 41 of part C of the Form 866, which states: ‘I am seeking protection in Australia so that I do not have to go back to’, the visa-holder answered ‘Iran’.
At question 42 of part C of the Form 866, which asks: ‘Why did you leave that country?’ the visa-holder answered ‘Please refer to my statutory declaration.’ In the statutory declaration he referred to he stated:
I left Iran because my idea was different from Muslim and I was homosexual. I didn’t like to be forced to believe Islam and I couldn’t accept to be taught to be Islamic religion people in my life. When my father forced to Pray, I didn’t want to do it. I had a problem with my father because of my non religion. Every time when I conflicted to my father because of religion, my mother helped me not to kick me out of home. And I couldn’t continue the military service because of psychological problem such as lack of sleep, stress. After 2 months training, I was exempted from the military service.
When I was in the secondary school, I found I was homosexual. On June 2010, I engaged a girl named [Ms A] as my mother suggested and I wanted to live as normal man. However, I was not interested and I didn’t have any feeling to females. At the end of 2010, I broke the engagement because I couldn’t continue to have relationship with her. Because I couldn’t explain my homosexual problem to her family, I excused them I couldn’t marry her because of my non religion. Her family was very angry.
In secondary school, I had a relation with a school mater [and] another relationship with a mater [in] high school. In 2005, I was arrested by Basiji because of drinking and I had to attend to the court to be sentenced to penalty of $100 instead of lash for the reason that it was my first time.
In 2010, I was arrested by Basiji when I was driving with girl named [name deleted]. We were taken to the Basiji station and released after my mother and her mother came to the station. It was during the engagement with [Ms A]. As the engagement was broken off, I decided to leave Iran because I feared being discriminated by Iranian authorities if I was found that I am homosexual in Iran.
At question 43 of part C of the Form 866, which asks: ‘What do you fear may happen to you if you go back to that country?’ the visa-holder answered ‘Please refer to my statutory declaration.’ In the statutory declaration which he referred to he stated:
I believe if I return to Iran, I would face a real chance of being caught and persecuted by the Iranian government under Islamic law for reason of my homosexual identity.
At question 44 of part C of the Form 866, which asks: ‘Who do you think may harm you if you go back?’ he answered ‘Please refer to my statutory declaration.’ In the statutory declaration which he referred to he stated:
I believe if I return to Iran I would be at a real risk of facing serious harm by Iranian government under the Islamic law.
At question 45 of part C of the Form 866, which asks: ‘Why do you think this will happen if you go back?’ he answered ‘Please refer to my statutory declaration.’ In the statutory declaration which he referred to he stated:
I believe if I return to Iran I would be at a real risk of facing serious harm by Iranian government under the Islamic law.
At question 46 of part C of the Form 866, which asks: ‘Do you think the authorities of that country can and will protect you if you go back? It not, why not?’ he answered ‘Please refer to my statutory declaration.’ In the statutory declaration which he referred to he stated:
As a homosexual person, I can’t be protected by Iranian authorities. I will be caught and persecuted by them under Islamic law.
Evidence – Statement of Claims declaration
On 27 August 2011 the visa-holder submitted a statement of claims statutory declaration dated 22 May 2011 in support of his Protection visa application in which he stated his reasons for seeking protection. This was the submission that he referred to at questions 42-46 of the Form 866C.
I [am] a citizen of Iran and I do not have a right to citizenship or a right to reside in any other country. I am Persian/Turk and I don’t have religion. I was born on [date] in Tehran, Iran.
Evidence – Travel to Iran
The department received evidence that the visa-holder travelled to Iran on at least two occasions following the grant of his Protection visa. The evidence available to the department includes:
a.Departmental movement records indicating that he departed Australia on [date] March 2014 and returned on [date] June 2014. Information received by the Department states that he travelled to Iran during this trip;
b.Departmental movement records indicate that the visa-holder departed Australia on a second occasion on [date] October 2014 and returned on [date] December 2014. Information received by the Department states that he again travelled to Iran;
c.At the time of his arrival in Australia on [date] December 2014 he was found by an officer of the department to be in possession of both an Australian-issued Titre de Voyage [and] an Iranian [Passport]. His Iranian passport, issued by the Iranian Embassy in Canberra after the grant of your Protection visa [in] 2012, was found to hold entry and exit stamps confirming his return to Iran during the two [periods];
d.At the time of his arrival in Australia on [date] December 2014 an officer of the department made a check of the visa-holder’s phone records which indicated that he had been attending parties and clubs in and around Tehran. The phone search also revealed that he had purchased [drugs] from [Country 1] and that he was transferring the drugs to Sydney. He advised the officer the following:
i.He departed Australia on [date] May 2013 and travelled to [Country 1] in order to visit his mother and aunt who were also in [Country 1] at this time. He returned to Australia on [date] July 2013;
ii.He departed Australia on [date] November 2013 and travelled to [Country 1]. He returned to Australia on [date] December 2013;
iii.He travelled to [Country 1] on [date] March 2014 and visited friends. On [date] March 2014 he travelled from [Country 1] to Iran to visit his mother who has [Medical condition 1] and so was unable to travel. On [date] May 2014 he returned to [Country 1] to visit friends again before returning to Australia on [date] June 2014;
iv.He travelled to [Country 1] on [date] October 2014 before travelling onto Iran on the same day in order to visit his mother. He then flew back to [Country 1] on [date] December 2014 before returning to Australia on [date] December 2014; and
v.The drugs he purchased in [Country 1] were for personal use and that he had bought them for his friends who were buying them from him. While in Iran he attended no meetings of any sort, only went out with friends and spent time with his mother. He will not be returning to Iran as his mother will soon pass away.
Given the evidence at its disposal, the Department found that the visa-holder’s claim that he faced serious harm at the hands of the Iranian authorities for reasons of his homosexuality was incorrect as his multiple returns to Iran and activities while in Tehran were not indicative of someone who claims to have a well-founded fear for the purposed of the Refugees Convention.
Section 102 (b) non-compliance
Evidence – Information provided on Passenger Cards
At the time of the visa-holder’s arrival to Australia on [date] June 2014, he declared “[Country 1]” as the country where he spent most time abroad on your incoming passenger card
At the time of your departure on [date] October 2014, he declared “[Country 1]” on his outgoing passenger card to question “Country where you will spend the most time abroad”
Evidence – Travel to Iran
Departmental movement records indicated that the visa-holder departed Australia on [date] March 2014 and returned on [date] June 2014. Information received by the Department notes that he travelled to Iran during this trip. It has also been established that he departed [Country 1] on [date] March and travelled to Iran and stayed in Iran until [May] 2014 (approximately 10 weeks). He then travelled to [Country 1] before returning to Australia [in] June. Therefore making his total period of stay in [Country 1] approximately 2 weeks.
Departmental movement records indicate that he departed Australia [in] October 2014 and returned [in] December 2014. Information received by the Department notes that he travelled to [Country 1] [in] October before travelling on to Iran on the same date. He remained in Iran until [December] (two months). He then travelled to [Country 1] and remained there until [December] 2014 when he returned to Australia.
The Department considered that the visa-holder’s responses to the questions asked of him in the passenger cards were incorrect as evidence indicates that he did not spend most of his time abroad in [Country 1] as declared. As a consequence he had not complied with subsection 102(b) of the Act because he provided incorrect answers on his passenger cards, specifically in relation to the question which asked him to provide information about which country he spent most of his time while abroad. I consider that he knowingly completed these passenger cards with incorrect information so as to avoid scrutiny by the department in having returned to Iran.
Discussion at hearing
At the start of the hearing the advisor was told that the concerns about the validity of the s 107 notification of the visa cancellation and also the timing of the visa-holder’s advice of the intention to cancel the visa had been taken into account. The visa-holder appeared to have received a copy of the document after an exhaustive Departmental search for his contact details.
The visa-holder was asked about whether any documents other than those that had been provided and he said there was not. The visa-holder was also advised that three witnesses had been put forward, including his mother. The agreement that was arrived at regarding his mother’s evidence was repeated – that is, there was no need to call her and her written statement was sufficient.
Asked about his return to Iran and the responses he gave, he said that he wanted to see his mother for a last time after he found she had [Medical condition 1]. He agreed she didn’t subsequently die. Asked if he sought compassionate permission to leave Australia, he said that he didn’t and went to [Country 1] straight away and asked his brother to get his mother to meet them there but he said she was too sick to travel so the visa-holder went to Iran.
The visa-holder travelled to Iran on an Iranian passport that he applied for and received in 2012. Asked why he applied for an Iranian passport, he said that he had tried to go to [Country 2] in 2012 with his former partner and they told him that if he wanted to go to [Country 2] he needed an Iranian passport as they would not put a visa in an Australian non-passport travel document.

He was granted protection in 2011. He applied for an Australian travel document and received it at the end of 2011. Using this he travelled to [Country 1] where he visited his mother. On his Australian travel document he travelled to [Country 1] four times and once to [Country 2] on his Australian travel document. Asked why he then got an Iranian passport, he said that he tried to get a [Country 2] visa in Sydney but they told him he needed to get an Iranian passport. A friend then told him that he could apply for a [Country 2] visa from Brisbane and they gave him one in his Australian travel document.
Asked if he checked with the [Country 2] Embassy about the visas, he said that he did. He confirmed that he then went to the Brisbane consulate and received a visa. Asked if he checked the Sydney office’s visa advice with the [Country 2] embassy in Canberra or with travel agents, and he said that he had a [Country 2] friend who told him that he should apply from Brisbane. Asked if he then rang the consulate in Brisbane to see if they issued visas in Australian non-passport travel documents he said that he couldn’t remember.
He was asked why, if he travelled to [Country 2] on an Australian travel document, he needed an Iranian passport, he claimed that the NSW consulate said they would give him a visa in his titre de voyage. Asked if he checked with the embassy or other consulates regarding the rules, he said that he didn’t. It was put to him that he claimed he applied for and received an Iranian passport at the end of 2012 with the express purpose of getting a [Country 2] visa, so it was strange that he didn’t get the [Country 2] visa in that passport – this raised questions regarding the truthfulness of that claim.
He repeated his claim that his friend said it was easier to get a [Country 2] visa in Queensland so he should come there. Asked if his friend hadn’t told him this after he got knocked back from the consulate in Sydney, he said that he hadn’t. He only got told after he got his Iranian passport. He wasn’t scared of going to the Iranian embassy because he was safe in Australia and they didn’t know why he was here.
Asked if he knew what the rules were regarding using a travel document from the country in which he feared persecution or the rules about travelling there after he had been granted protection, he said that he didn’t. Asked how he travelled there, he said that he travelled to [Country 1] on his Australian document and then to Iran on his Iranian passport. He did this because he was scared and didn’t want anyone to know who he was.
He was scared because his ex-fiance had found messages on his phone that revealed his homosexuality and she told her mother and they went to the police. He didn’t know what they said to the police but he was very scared as homosexuality is punishable by death. It was put to him that he was taking a very big risk returning to Iran and he said he wasn’t thinking straight. It was put to him that he changed documents entering [Country 1] and Iran from Australian to Iranian. He had claimed that he would be killed if he returned to Iran and was granted protection based on this claim yet he had voluntarily returned to Iran twice. This raised serious questions about the truthfulness of his claim to fear serious harm in Iran.
There were also concerns that he didn’t seek an Iranian passport to go to [Country 2] at the end of 2012, but had always intended to travel to Iran. He said that he got away twice with travelling to Iran – it was like crime. You could get away with it sometimes but you would eventually be caught.
He was told about s 424AA and it was put to him that there were conditions to the grant of an 866 (protection) visa and these included that one should not travel on a passport from a country from which they sought protection otherwise the Australian government may consider they no longer need protection, and that one could not travel to the country from which they claimed protection unless they first sought permission to do so. The Tribunal had concerns that he was not really fearful of serious harm in Iran because he had voluntarily returned twice to Iran without asking permission from the Australian government and he had done it twice in such a way that there was no indication on his Australian travel document that he went to Iran.
He accepted that he had not sought permission from the Australian government before he travelled to Iran, but he claimed that he was not thinking straight and he had no family, friends or support to talk to. He was just smoking ice at home and was lonely, stressed and had no one to direct him. It was strange that if he was so directionless, stressed and smoking ice that he had the wherewithal to travel to [Country 1] on an Australian travel document then switch travel documents and travel to Iran on an Iranian passport. This showed a degree of forethought.
When he returned to Australia, he also said that he spent most time in [Country 1], not Iran. There appeared to be a deliberate attempt to cover the nature of his travel, perhaps because he knew the nature of it was wrong. The Tribunal was concerned that he wasn’t confused but he knew exactly what he was doing. He claimed that he didn’t enter Iran on his Australian travel document because they would have known that he was a refugee.
He said he wasn’t trying to hide things as he left [Country 1] on his Australian passport. He was asked if the Iranian authorities asked about his new, blank passport and he said they didn’t because it was common for Iranians to get new passports after their old one had been lost. He was also asked if the authorities said anything to him about coming from Australia and he said they didn’t know he came from Australia. Asked where his passport was issued, he said it was Canberra. It was put to him that the front page of the passport said it was issued from Canberra and so they would have known he had been in Australia if they had been interested in him. He said they didn’t look at it.
Asked again why it would have been a problem if he had entered on his Australian travel document and they knew he was a refugee, he claimed that they would ask why he sought asylum. It was put to him that country information indicated that the Iranian authorities weren’t really interested in Iranians returning to Iran unless someone had a political profile. That being the case, he was asked why he felt the need to enter Iran on a n Iranian travel document. He said he had to enter Iran on an Iranian passport because he was an Iranian citizenship. This held unless he was a dual citizen.
Asked why he didn’t check with the Australian government before he left for Iran given the alleged danger he felt himself to be in. he said that he didn’t want anyone to find out – he wasn’t scared. He didn’t want anyone to find out. He said that he wanted to see his mother and was in a bad situation in life. It was put to him that from the medical documentation he had given the Tribunal there didn’t appear to be life-threatening illness. He said she had [Medical condition 1] for the second time.
Under s 4242AA it was put to him that when he was stopped on return to Australia for the second time in 2014 he told the Australian authorities that he wouldn’t be returning to Iran because his mother would soon pass away. It was the second time he had gone to Iran, which would indicate that he had been given medical advice to this effect yet none was apparent from what the Tribunal had been given. This raised concerns about whether his mother had this illness or if she did, whether it was as serious as he made out. It had been seven years since he made that claim so he may have embellished the claim – the Tribunal also had to weigh up the fact that false medical documents could be easily provided.
He claimed that she had [Medical condition 1]. It was put to him that several doctors must have told him to have the degree of certainty that he claimed. He said he didn’t know she wasn’t going to die. He said he didn’t know how he could prove the documents were genuine. It was put to him that he could provide some computer-generated payment records from their health insurance company and he said he would.
He was asked why he hid the fact that he was in Iran from migration officials. He said he didn’t want anyone to know. It was put to him that he didn’t know he wasn’t allowed to travel back to the country from which he claimed persecution, he claimed he didn’t know himself why he tried to hide this fact. He stated that he lied on the form. He had made a mistake and was young and stupid but had learnt from this.
Asked if he went out socially in Iran, he said he went out with friends and relatives to restaurants. It was put to him that this must have been risky going out for four months in Iran. He said that he was careful because if he was taken to the police station it would be on their records. It was put to him that he went through the airport twice without anyone stopping him and he said that the Sepah controlled the airport, not the police. It was put to him that they would exchange information and he said that he didn’t know about this. he said that because there was no arrest warrant for him there was no problem for him.
He agreed that he was gay and said he had been in homosexual relationships in Australia. He had been in a relationship with [Mr B] since [Mr B] arrived here in 2012. He had other short relations. Asked if he had a social media profile that would indicate that he was gay, he said he had one but he deactivated it before he went to prison. He had [a Social media] account but couldn’t remember the password. He still had [this Social media] account but there wasn’t anything on it that would indicate he was gay. There was only one photo of himself on it.
He and [Mr B] grew up in the same area and they had sex but it was for fun as they were teenagers. [Mr B] came to Australia because he wanted to be with the visa-holder, and came by boat in 2012. They then lived together. [Mr B] didn’t apply for protection on the basis of being homosexual but on the basis of religion. He became catholic and he was still Catholic but he didn’t know if he was still. They went to a church [a] few times. Asked why he went, and he said he went there to sit with the boys. It was put to him that this was strange – he said [Mr B] took him to the church to change his ways.
[Mr B] became Catholic since he came here. Their gay relationship was secret and he never mentioned this to the authorities. It was put to him that this was the reason [Mr B] came to Australia, to be with his alleged gay lover and yet he never mentioned his homosexuality. The visa-holder claimed that this was the way gays were in Iran, they kept things secret. It was put to him that it was strange that he was the alleged gay partner of the visa-holder, and he could have corroborated [Mr B]’s story and told him that his own claim to be gay had been accepted so there was nothing to fear.
The visa-holder said that [Mr B] was on a bridging visa and afraid that a gay claim would get out. The visa-holder pointed out there had been an Immigration data breach in which people’s claims were made public. It was putt o him that the data breach occurred in 2014 and there was no indication that anyone in Iran had accessed that information before it was taken down. It just included names not claims.
It was put to the visa-holder that their relationship in Iran must have been close given [Mr B] came on a boat to Australia in order to live with him. Their relationship began around 2077 before he left Iran – they went everywhere. He was asked if he ever mentioned [Mr B] in his claim given he mentioned two other people’s names and he said that he hadn’t because [Mr B] had made the visa-holder promise not to mention him but had now given his permission to do so. The member said he found it hard to believe that, given the intensity of the relationship and the fact [Mr B] came to Australia to be with the visa-holder, there was no mention by either of them of this fact. Indeed, neither mentioned the other at all and [Mr B] never even claimed to be gay. The Tribunal was concerned that this claim was made up.
The visa-holder claimed that they could have lied from the start and he could have told [Mr B] to say he was gay when he came to Australia but he didn’t. The visa-holder was asked if he had any photographic evidence that they were in a loving, homosexual relationship while living in Australia. He said he had heaps of photos with [Mr B] but they were with the police. It was put to him that there must be photos on [Mr B]’s phone – the visa-holder said that he would have but [Mr B] lost his phone in the last two months.
He had not downloaded them onto his computer as neither of them had one, nor did they email any photos to each other. He had lived with [Mr B] from 2012-2014 as partners. They had their own accounts as they drew from Centrelink. The Tribunal was trying to establish if they lived as partners rather than housemates. He was asked to provide utilities bills or leases in their names and he said he would. It was put to him that they had no photos they could share, he had never mentioned [Mr B] as a gay partner in his protection visa application and [Mr B] had never even claimed to be gay. There were significant concerns that he was not gay and so there would be no problems in returning to Iran.
He claimed he had jail records that [Mr B] visited him. They had their names tattooed on each other in 2012 and he didn’t do this with other friends. They would live together again when he got out of detention. [Mr B] wanted to keep it secret while he was on a bridging visa. It was put to him that visa-holder s were told that information was kept confidential. He had named other Iranian gay partners because they weren’t serious relationships and he didn’t want to break his promise to [Mr B].
It was put to him that his willingness to return to Iran twice raised serious concerns about the truthfulness of his claim and he noted again that he risked capital punishment but he got away with it. He was currently in immigration detention. It was put to him that it had been several years since he had returned to Iran and provided incorrect answers on his passenger card, but if it was found that he was not gay then given this was the foundation of his claim it was still important.
He had also been found guilty of supplying [drugs] and had done jail time since he had been in Australia. Asked if he had contributed to broader Australian society, he said he had studied some English but nothing apart from that. Asked if anyone would be adversely affected by his removal, he said it was his partner [Mr B]. Asked when he had been his partner, he said they were partners until he went to Iran and then had a break until [October] 2015 when they got back [together].
He was also asked about his role as a witness in an upcoming trial and why it should be factored into the review. He said that he wanted to move away from crime and help the police. He had information about a murder and would be required to give evidence. Asked if he could give the evidence from Iran, he said evidence could be given by video from anywhere someone was.
It was put to him that if he could give the evidence from Iran why it would affect his removal, and he claimed that he could not be protected in Iran and there was already a contract out on him. Asked how he knew this, he claimed the crime group were not normal people and they were contact killers. He would be found wherever he went. He was from Tehran.
Asked how many people there were in Iran, he said it was the same as Australia, about 25/26 million. He said these people were looking for him in Australia and Iran. Someone told [Mr B] that they were looking to pay $20,000 for his address. They had already sent people to his family house in Iran looking for him. They had people all over the world. He was asked if they knew he was in immigration detention and he initially said they didn’t. Asked how they knew enough to find his home address in Tehran but didn’t know he was in immigration detention in Australia. He then said that he didn’t know if they knew he was in detention.
Asked if they had done anything to [Mr B] and he said they hadn’t. It was put to him that if they wanted to harm him, then they could do something to [Mr B] instead given their closeness. It was strange that nothing had happened to him, such as abducting [Mr B]. It was strange that contract killers would stay away from [Mr B]. He said he didn’t know what they were thinking and could be following [Mr B].
Asked how they knew his parent’s address in Tehran, he said that he didn’t know. He said that they could have paid someone for this information. Asked why they hadn’t picked up a family member as a way of stopping him from giving evidence, he again said that they wanted him. It was put to him that it was strange that a contract killer group would go to his family’s house, ask where he was and when told he wasn’t there would just leave. For such a ruthless gang looking to stop him testify they appeared to have done nothing to pressure his loved ones. He claimed they didn’t know how close [Mr B] was to him.
He was asked how nobody appeared to know [Mr B] was his partner given they had allegedly been partners for nine years in Australia. He said they had a mentality that they had to keep it secret. It was put to him that they had allegedly come to Australia to express their homosexuality and claim protection and yet they didn’t openly express it. He claimed that [Mr B] was not permanent in Australia. Asked if [Mr B] had his claim accepted or rejected, he said that he had his protection visa accepted. He then said [Mr B] was on a bridging visa but his situation wasn’t sure. He was asked if [Mr B] had his application accepted, and the visa holder said it was rejected and [Mr B] was put into detention but came out.
The visa-holder didn’t know exactly what [Mr B]’s status was. It was put to him this was strange they are partners. He said that [Mr B] had gone to the High Court twice and lost and went to detention and had a [medical] condition and they released him while his case was being heard. He was still fighting but had been rejected twice. It was put to him that [Mr B] had been rejected, but even given this, while living with his gay lover [Mr B] continued to hide his alleged homosexuality from Immigration authorities. This didn’t give the Tribunal much confidence that he or [Mr B] were actually gay.
[Mr B] was then called as a witness by telephone. He said the visa-holder was a lovely person whom he missed. They are gay partners and were together in Iran (first as friends). He came to Australia after two years. The visa-holder was one of the reasons [Mr B] came to Australia and he also had problems with the government in Iran. He knew some people in detention so he never mentioned his homosexuality to anyone – it was unacceptable in Iran so they didn’t tell anyone in Australia.
Asked what claim he made for protection in Australia, he said that while he currently didn’t believe in any religion at the time he made his claim he was Catholic. Asked if he was baptised Catholic he said he wasn’t. He knew Catholic and Protestant when he came to Australia and he said he was Catholic. He was baptised but didn’t know which faith he was baptised into – it was during detention.
He didn’t go to church at all because he was depressed. His application was not accepted because they didn’t believe he was Catholic. He was currently on a bridging visa and he had been released from detention and was now applying for protection based on medical grounds because he had [surgery]. He was found not to be a refugee and appealed to the AAT but his appeal was out of time. He then sought a Ministerial Intervention to apply for a protection visa again.
Asked if he had any photos of him with the visa-holder, he claimed that all of his private photos with the visa-holder were on his phone but he lost the phone two weeks ago. He had not reported this to the police. He didn’t report it to the police because he lost his phone more than 10 km from where he lived and he thought they would fine him. He did not have a computer. Asked why he never mailed the photos to himself or posted them on a private [Social media] page, he said that he used to have a laptop where he stored the photos but he was in a share house and when he was taken to detention his laptop was stolen by his housemates. The detention staff didn’t care about him and didn’t allow him to report it to the police.

Asked if he had any photos of them he said he had sent some to the lawyer. The member said that he had seen the photo and it looked like two guys at the beach or a pool and didn’t indicate any particular closeness. The witness asked whether the Tribunal wanted bedroom photos and he was advised the Tribunal didn’t want sex photos needed some photos that indicated a close personal relationship of two people in a loving relationship in order to give weight to the homosexuality claim.
The Tribunal was concerned that they weren’t in a homosexual relationship given that he had never mentioned their relationship in his protection claim. Asked if they had a joint bank account or a private [Social media] account, he said they had neither but they still hid their relationship as they were scared of family in Iran. Asked why he didn’t have a private [Social media] page, he said he didn’t know but they broke up for a year.
Asked if his previous claim to be Christian was accepted as true, he said they didn’t. He was asked why the Tribunal should accept his homosexuality claim given he had previously claimed to be Christian and this was not accepted and now he no longer claimed to believe in Christianity. He said that these things were in the heart.
There was a discussion about the validity of the notice. The first issue was about whether the Tribunal had jurisdiction over the matter and the applicant’s adviser and the Tribunal agreed that it did. The second issue was whether the NOICC met all the statutory requirements of s 107 of the Act and if they didn’t, then there was no s 109 power to cancel the notice. Asked what provision the adviser claimed hadn’t been met, she claimed that in effect the notice had to state the correct time the visa-holder had to reply.
If the incorrect deeming of the timeframe for reply was not met then the notice was not valid. The visa-holder had not provided the Department with an address for the purposes of receiving correspondence so whether he received the letter or not was a moot point. She was asked whether the email addresses to which the document had been sent would have fulfilled the requirements, she said she was unaware that some had been sent to emails other than to ascertain whether the mail address was still current.
The adviser said that their willingness to accept the visa-holder’s mother not being called as a witness was based on the fact that the Tribunal accepted her written statement. The hearing had indicated that the Tribunal had concerns about the nature and severity of her medical condition and it should therefore ask her questions about this. The Tribunal stated that the greater issue was the subterfuge that the visa-holder had practised in going to Iran twice, rather than spontaneously going to see his mother. The nature of her illness was secondary to his travel.
The adviser also said the mother had claimed that people had visited her house and the Tribunal said that a close family member had written a letter about the alleged visits and the Tribunal was concerned about the credibility of these visits, something that the visa-holder’s mother would not be able to speak to. She would likely only repeat what she had written, that people had visited her house, and hence the Tribunal would give appropriate weight to the written evidence.
After a natural justice break, the visa-holder was asked whether he was living in Brisbane when he got his [Country 2] visa he said he was in Brisbane but couldn’t remember what dates. Asked when he applied for his [Country 2] visa from Sydney, he said he thought it was the beginning of 2012. It was put to him that he was refused at the beginning of 2012, and he was asked when he got his Iranian passport issued. He said he got it and a friend in Brisbane said that it was easy to get a [Country 2] visa and he didn’t even need his Iranian passport. He couldn’t remember when he went to [Country 2] but it was on the travel document. He was asked to provide a copy of this post-hearing. He couldn’t remember exactly when he got his Iranian passport.
It was put to him that he was refused a [Country 2] visa at the start of 2012 but got his passport in December 2012, nearly a year later. He couldn’t remember if he travelled to [Country 2] after this. He was asked why he delayed getting an Iranian visa if his purpose was to go on holidays with his alleged gay lover. He said he didn’t remember when he travelled to [Country 2].
The adviser submitted that the visa-holder presented an Iranian passport because he felt this was safer than an Australian travel document and he didn’t believe that there was an arrest warrant. He was not a returning failed asylum seeker and the Tribunal should look to his state of mind. The visa-holder had given a response that his mother would die soon based on what he believed – his mother had given routine medical documents about [details deleted]. Her evidence in her statement was that she had pre-existing health conditions and she believed there was a chance she would die. She was even less well the second trip he went on and didn’t need to speak to a doctor to form the opinion that she was going to die.
Asked if he had brothers and sisters in Tehran, he said he had a brother and a sister. His brother was always at home with his mother and his sister was married but looked after his mother at times. It was put to him that his mother had family support and she didn’t appear at death’s door. Yet, he spent four months in total there. If his mother was terminal then he could have just gone in quickly and surreptitiously, yet he stayed for two months at a time and socialised while he was there. This was not risk-averting behaviour. He was back from overseas and his friends wanted to take him out. He was asked what would have happened if he was stopped at a police checkpoint and his identity was checked.
For someone who claimed to be of interest, his actions in Tehran didn’t appear to be in line with someone in fear. He claimed he was young and didn’t know what he was doing – he just took the risk. If his friend texted him to go to dinner he went. It was put to him that he had misled the Australian authorities (via the passenger card) because he knew there were consequences – yet he claimed that he did things in Iran without allegedly thinking of the consequences. The Tribunal was concerned that there was no risk in Tehran.
Asked why he didn’t tell the authorities that he went to Iran on his passenger card, he said he didn’t want people to find out. It was put to him he claimed that he did things without thinking of the consequences, yet he thought of the consequences when he didn’t tell the authorities where he went on his passenger card. He said he didn’t know the passenger card was very serious. Asked why he didn’t tell the truth if it wasn’t serious. He said he didn’t want to get questioned about it.
The adviser claimed that regardless of whether he took risk avoidant behaviour he had practised it for years by not being open about being gay. He also took precautions in Iran by not dating men and therefore he wasn’t exposed to risk of harm. The authorities had no reason to have adverse interest in him when he entered and left however his sexuality would eventually expose him to harm.
Regarding his relationship with [Mr B] in Australia, cultural context needs to be taken into account even in Australia. Having grown up in Iran where they could have been executed for being gay, [Mr B] still didn’t feel being open about his homosexuality with the Iranian community in Australia in case he returned. As a consequence of being a closeted gay man it is reasonable that there may be no evidence of their relationship. They wouldn’t have a social media page that was only private. Many long-term defacto partners also have separate bank accounts. Their evidence corroborates each other. And should be accepted.
The Tribunal asked the visa-holder why, if he didn’t want their relationship to be known by the Iranian community, they continued to hang around the Iranian community in Sydney (a city of 5 million people). It was a big city and they both spoke English and there was a large gay community in Sydney where they could love each other openly. The Tribunal found it hard to believe. He claimed they didn’t speak English behaviour and they were stuck in the Iranian community through work and didn’t want to share their private life. They attended English language classes. Asked why they didn’t immerse themselves in the English-speaking community, he said this was another mistake in his life. He learnt English in prison and was a changed man now. The adviser said there were many aspects to a person’s identity and it wasn’t unusual for those granted asylum to maintain links to their linguistic community.
A second hearing was conducted to take evidence from a police officer who was unavailable at the first hearing. The visa-holder also asked for evidence to be taken from another witness. Detective [name deleted] was asked about the need for the visa-holder’s physical presence in the criminal proceedings the following year. The police officer said the visa-holder had provided a statement in a murder trial and involved the direct admission of one of the accused murderers and had made contemporaneous notes of the confession so his evidence was crucial. It was far preferable for him to be in court to give the evidence.
They would have to apply for an audio-visual link if he was not in Australia and the judge was the only one who could confirm this being approved. He was asked about the criminal gang he was giving evidence against was well financed and was domiciled in [a named country] currently although he was an Australian citizen. He had reach back into Australia but wasn’t the subject of an Australian arrest warrant. He was unaware whether the criminal had any reach to or connection with Iran. The police officer also said the visa-holder was worried about Iranian police corruption and that the visa-holder’s cooperation with police may be known. The member told the police officer that he had given evidence in a [trial] in the NSW Supreme Court via video link from his laptop in [an overseas country] and was asked whether this was an option open to the visa-holder the police officer said it would be up to the court and whether it was technically feasible from Iran.
The adviser asked the officer about the risk to the visa-holder if he was in Australia. He said the accused were members of [gangs] and the police had concerns about his safety in the community and they would potentially change his name and get him to move states. In immigration detention it may be difficult to get him appropriate protection so their preference was for the visa-holder to be in the community where they could support him.
The adviser said the visa-holder approached the police in January 2020 and they took a statement in April 2020 and he got no sentencing benefit. The officer was asked if he knew what the visa-holder’s immigration status was at the time and he said he didn’t know where the visa-holder was placed however he did mention that he may need some assistance with his immigration in the future. He thought it may relate to his prison sentence and he may be deported as a result. The police officer said he wasn’t told about what his status was or what assistance he may need.
The adviser asked the officer what giving evidence may do to his risk of re-offending, he claimed that being moved from the general prison population this would go with him forever and would be an incentive not to re-offend. The Tribunal put to the police officer that his September 2020 statement said that the visa-holder advised them that the reason his visa was cancelled because he missed the timeframe for appeal which was not the actual reason it was cancelled. Asked how it would play out in court if he offered information and expected something in return, the officer said juries were warned about evidence from informants. This was also revealed during disclosure that a letter had been provided. There was another jail informant and they had surveillance of the accused so there was a continuance of information.
The visa-holder was asked when he got back with [Mr B] and he said it was [date] October 2015 and he agreed that he was in an exclusive relationship with him from then. The visa-holder was asked about a statement he had provided to the Tribunal prior to the current hearing from someone by the name of [Mr C] and was asked if he had mentioned this person previously – he said he mentioned it to his adviser. It was put to him that he had mentioned someone called [Mr D] but never mentioned [Mr C]. He had not been able to contact either of them. He was asked why he mentioned [Mr D] (who he saw quite regularly) but not [Mr C] (who he claimed to have seen three times a week). He didn’t know and didn’t think about it.
It was put to him that in the letter from [Mr E], the author claimed that they saw each other three times week until July 2016. He claimed that the relationship with [Mr C] was for fun. It was put to him that he had said he was exclusive with [Mr B] but was having sex three times a week with [Mr C] so someone wasn’t telling the truth. He said perhaps he didn’t understand what exclusive was and thought it was like having a wife but seeing someone else. It was put to him that there was a concern that he was not in relationship with any other male.
The visa-holder was asked if he had any other evidence such as photos or correspondence with [Mr C]. Without corroboration then the Tribunal could only rely on oral evidence from someone and would have to give it appropriate weight. He did not have any photos on his phone because he didn’t want [Mr B] to find out about [Mr E]. The adviser said that there was evidence of contact between the visa-holder and [Mr C] on [an app], as well as explicit photos. Asked if they were photos of the visa-holder she said they weren’t. She said that given the secret nature of their relationship then it was reasonable that there was no corroboratory evidence.
[Mr C] was then called as a witness. He was asked if he wanted to add anything to his statement and asked what the Tribunal wished to know. He claimed they met via [an app] in 2015 and just prior to [July] 2016 [the applicant] ghosted. [Mr C] had no photographic evidence of [the applicant] and himself and heard later that he was in jail. He wasn’t aware if [the applicant] was in another relationship. He didn’t keep any evidence. Asked if [an app] kept a record of discussions, he said he didn’t think it did as it refreshed every few days. They never contacted by email. Asked why he referred to [the applicant] as an Arab, he said [the applicant] was from Iran so he was an Arab. It was pointed out that Iranians were not normally Arabs.
Asked if he shared his houses with others, he said that he did. They knew he was in prison but they moved out from the house later. They never forwarded any mail to him. He was still in contact with the people in [Suburb 2] (he lived there 2015/16) and was asked if he could provide a copy of their lease so the Tribunal knew when they moved out.

100. The visa-holder said that he never asked the police for assistance with his sentence or with his immigration. It was put to him that the police officer said he had asked possible relief for his immigration issues. He said he wouldn’t have given the information in the first place and when they told him that he may need to give evidence in court, he told them his visa was cancelled and he may be deported and if he was still here he would come to court. It was put to him that this was different to what the police officer said and the Tribunal would need a statement from the police in support of this.
101. The adviser said that even if the email addresses were valid, the notices wouldn’t have met the requirements as they would have reflected the time for reply for a hard copy response.
Analysis
102. Overall, I found the visa-holder to lack credibility as a witness. To begin with, he accepted that there was non-compliance as outlined in the NOICC in that he did not comply with s 102(b) of the Act when on two occasions he incorrectly wrote on his passenger card that he had spent most time away in [Country 1] when in fact he had spent most of his time on these trips in Iran. He had been granted a protection visa on the basis of fearing serious harm from the Iranian authorities because he was homosexual.
103. I do not accept that the visa-holder returned to Iran for the sole purpose of visiting his very sick and allegedly terminally ill mother and that he did so impulsively without worrying about the consequences of doing so. Nor do I accept that the reason he didn’t come to the attention of authorities is because he was lucky and didn’t engage in homosexual activity while in Iran.
104. To begin with, the reason for the visa-holder obtaining an Iranian passport shortly after being granted a protection visa is unconvincing. He claimed that he wanted to go on holiday to [Country 2] with his gay partner but was told in early 2012 that a [Country 2] visa could not be placed in an Australian titre de voyage that he was issued [in] 2012 and he would have to get an Iranian passport as he was an Iranian citizen. He then said a friend told him that he could get a [Country 2] visa issued by the consulate in Brisbane in his titre de voyage and he did this.
105. Yet he didn’t get an Iranian passport until [2012] and the [Country 2] visa was issued in his titre de voyage [in] 2013 from Canberra. It makes little sense why he would wait so long to get his Iranian passport if his purpose was to go to [Country 2], and he had to have his Iranian passport in order to get there. Then, having his passport he would wait another four months to get a [Country 2] visa and then in his Australian travel document and not in his Iranian, which was allegedly the only reason he got an Iranian passport in the first place.
106. This raises questions in the mind of the Tribunal as to the real reason why he sought to obtain an Iranian passport. I note that the visa-holder has provided medical documents in support of his claim that his mother was gravely ill and that this necessitated his return to Iran. I am however cognisant of the fact that country information indicates that paper-based documents such as bank letters and real estate documents are relatively easy to claim by fraudulent means.[1]
[1] DFAT Country Information Report-Iran, 14 April 2020, p 72.
107. The visa-holder was asked to provide some more robust documents such as computer printouts of their Iranian health insurance records that may have given the Tribunal more confidence regarding the truthfulness of his claim regarding his mother’s medical situation. Post-hearing the applicant provided some photos of untranslated documents that he claimed came from the hospital and that no payment was required because the health insurance had taken care of it. I can lend these little weight in testifying to the severity of her condition given they are photos of documents that are untranslated. The Tribunal requested computer printouts from the health insurance company so the record of payment for treatments could be checked however none was forthcoming.
108. The visa-holder also claimed to Australian authorities in December 2014 that he would not return to Iran again as his mother would soon pass away. Yet she is still alive seven years later, which is either indicative of a miraculous recovery or fabrication/embellishment on the part of the visa-holder.
109. I am satisfied that it is the latter. For someone who claims to have acted spontaneously in visiting his country of claimed persecution in response to his gravely ill mother’s condition, he spent two periods of two months in Iran, and socialised publicly with friends while there. In a pre-hearing statement he claimed that he knew he was not allowed to return to Iran yet he still did so. It is reasonable to believe that if his mother was in the medical situation he claimed that she was, that he would have engaged the Department to see if he could be granted permission to leave.

110. I also note that the visa-holder has two siblings in Tehran, one of whom (his brother) who he claims looks after his mother. Given this, it is again difficult to understand the urgency in his need to return, or the length of time he spent there. Perhaps if she was terminally ill this may be understandable, however this would appear not to be the case. Overall, his actions are not those of someone who fears serious harm at the hands of the Iranian authorities.
111. Although the visa-holder claimed that he wasn’t involved in any homosexual activity when he went back to Iran, he also claimed that an ex-fiance had found messages on his phone that revealed his homosexuality and they had gone to the police about this before he had left Iran. While the visa-holder claimed not to know what they said, this very uncertainty regarding what the police had been told regarding his sexuality would have meant that such a return was potentially dangerous regardless of whether he undertook homosexual activities while he was there or not.
112. This willingness to return to Iran surreptitiously (knowing that he was not allowed to travel there if he was on a protection visa as he admitted in his pre-hearing statement) and to lie about it on his passenger card then raises the question as to whether he has a well-founded fear of persecution based on his homosexuality. The Tribunal is satisfied that the visa-holder is not, and never has been homosexual and that he fabricated this claim in order to be granted a protection visa.
113. To begin with, the visa-holder claimed to have been involved in a physical and emotionally close relationship with another man, [Mr B], in Iran and that [Mr B] came to Australia by boat after the visa-holder in order to be with the visa-holder. They subsequently lived as partners in a share house, broke up for a year but have been reunited and remain as partners since then.
114. There are a range of reasons why I disbelieve this claim. To begin with, the visa-holder never mentioned the existence of [Mr B], let alone claim a relationship with him, in his protection visa application. This was despite the fact that in his protection visa application he named two other young men with whom he claimed to have had physical relationships in Iran. I do not accept that he had promised [Mr B] not to mention their relationship as this relies entirely on his oral testimony which I have found lacks credibility.
115. [Mr B] appeared as a witness however I place little weight on his evidence. Not only did he not mention in his protection visa application that he was in a relationship with the visa-holder in Iran and had come to Australia to be with him, he never even claimed to be gay. I do not accept that he was scared that it would get out, given that visa-holders are advised that the information is confidential.
116. I also note that [Mr B]’s claim to have been Catholic was not accepted by the delegate. The Tribunal is concerned that [Mr B] is willing to advance claims that are not true and this impacts on his credibility. I also note that despite claiming to have been in a years-long relationship they have no photographic, social media, financial or communication evidence that they have any romantic connection at all.
117. I have taken into account the photos the visa-holder provided that indicated the visa-holder had a tattoo saying ‘[Mr B]’ on his [body], while [Mr B] had one saying ‘[name]’ on [body part]. I assume they are permanent tattoos, however I lend them little weight as a measure of their sexuality. There are any number of on-line sites that promote the best type of tattoos for friends to get[2], including each other’s name.
[2] See for example 155 Best Friend Tattoos to Cherish Your Friendship (with Meanings) - Wild Tattoo Art
118. I also took evidence by phone from a person called [Mr C] and also took into account a written statement from the same person. Again, I lend them little weight as evidence the visa-holder is homosexual. To begin with, the visa-holder had never previously mentioned any relationship with someone called [Mr C] even though [Mr C] alleged that they saw each other three times a week for sex for an extended period. The visa-holder had however mentioned someone called [Mr D] who he claimed he saw ‘quite regularly’.
119. [Mr C] also said that they were in a relationship with the visa-holder until the time of [Mr C]’s birthday in [2016], yet the visa-holder claimed that he and [Mr B] were in an exclusive relationship from the time they allegedly got back together at the time of [Mr B]’s birthday in [2015]. I do not accept that this inconsistency was because the visa-holder misunderstood the term ‘exclusive’. In a written statement he made on 14 October 2021 he said that he and [Mr B] were living in an exclusive relationship from the time [Mr B] got out of detention. This demonstrates a correct understanding of exactly what the nature of an exclusive relationship is and hence I do not accept that the inconsistency with respect to the timing of his alleged relationship with [Mr C] can be put down to a misunderstanding of the term ‘exclusive’.
120. Because of these reasons I am satisfied that the visa-holder was also not homosexual nor had he ever been and that this claim had been fabricated. Given this I find that there was non-compliance with s 101(b) given the answers he provided in the PV application.
Conclusion on non-compliance
121. For these reasons, the Tribunal finds that there was non-compliance with s 101 (b) and s 102 (b) of the Act by the visa-holder in the way described in the s.107 notice.
Should the visa be cancelled?
122. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the visa-holder 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).
123. In exercising this power, the Tribunal must consider the visa-holder’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 r.2.41 of the Regulations. Briefly, they are:
· the correct information

124. The correct information is that the visa-holder is not, nor ever has been homosexual and that he is of no interest to authorities in Iran because of it, or of any perception that he is gay. He has already accepted that he knowingly disguised the fact that he had spent the majority of his time overseas when filling out his passenger card on two occasions.
· the content of the genuine document (if any)

125. This prescribed factor is not applicable in this case.
· 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

126. The original decision to grant the visa-holder a protection visa was based on an acceptance of the visa-holder’s claim that he was homosexual and the serious harm that he would suffer as a result of this from Iranian authorities. The Tribunal has found that claim to have been fabricated and as such the original decision to grant the visa was based on an incorrect claim knowingly fabricated by the visa-holder.
· the circumstances in which the non-compliance occurred

127. The visa-holder claimed that his return to Iran was necessitated by the critical (and from what he told an Immigration official when questioned on return to Australia, terminal) illness of his mother in Iran. I place some weight on the fact that his mother may have had medical issues in Iran, however this is offset by the length of time he stayed in Tehran, his willingness to socialise with friends while there despite claiming to be afraid of what the police may have been told regarding his sexuality by an angry ex-fiance before he left Iran, and his willingness to hide this fact from authorities via incorrectly filled out passenger cards. Overall I give this little weight in the visa holder’s favour.
· the present circumstances of the visa holder

128. The visa holder claims to be in an exclusive homosexual relationship with a person by the name of [Mr B] (a failed asylum seeker) and that he would be affected if the visa-holder were returned to Iran. I have found the visa-holder to have fabricted his claim to be homosexual and therefore [Mr B] is simply a friend. His roots in this country do not appear to be deep, and on return to Iran he would be able to reintegrate back into Iranian society. Given he has friends and siblings there.
129. I have taken into account the fact that he is a key witness for the Crown in an upcoming murder trial (scheduled to commence in [2022]) and that this may require special safety precautions put in place for him as a result. There is no indication that the accused party involved has any connections in Iran that could harm the visa-holder, and I have not accepted as true the claim that people had already been asking the visa-holder’s family in Iran as to his whereabouts.
130. I also note that while it is preferable that he remain in Australia until he gives his evidence, whether it could be given from overseas would ultimately be up to the court to decide. As a consequence I give this consideration some weight in the visa-holder’s favour in considering whether the visa should be cancelled.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

131. The visa holder did not engage with the Department during the cancellation process. Whilst he did acknowledge that he had incorrectly filled out the passenger cards during his hearing, he did not concede that incorrect information was provided by him with respect to his claimed homosexuality and consequent interest in him on the part of Iranian authorities. On balance I give this little weight in the visa-holder’s favour.
· any other instances of non-compliance by the visa holder known to the Minister

132. No other instance of non-compliance is known to me. I give this some weight in the visa-holder’s favour.
· the time that has elapsed since the non-compliance

133. Over seven years has elapsed since the non-compliance in regards to s 102 (b) and ten years since the non-compliance with regard to s 101(b). This is a reasonable amount of time however the visa-holder has been in prison in Australia for drug offences for more than five years during that period. Given this, as well as the fact that his protection visa was only granted in the first place based on a fabricated claim of homosexuality, I give this little weight in the visa-holder’s favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches

134. Since arriving in 2011 the visa-holder was convicted of a serious drug offence relating to the commercial supply of ‘[drug]’ for which he was sentenced to approximately eight years’ jail and was released into detention [in] August 2021 on parole having served [time] in jail. He had been detained since June 2016.
135. This offence occurred after the non-compliance and I give this no weight in the visa-holder’s favour as a result.
· any contribution made by the holder to the community.

136. Whilst he has not provided any evidence of a broader contribution to the Australian community, I have noted his offer to act as a key witness in an upcoming murder trial. Although he has not received any sentence reduction for being a witness, I also note that he raised his Immigration problems with the Australian Federal Police. This reduces the sense of altruism that may otherwise have been claimed as a result of his action.
137. As a consequence I give this consideration some weight in the visa-holder’s favour in considering whether the visa should be cancelled.
138. 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.
139. The likely consequences of a decision to cancel the visa are as follows:
a.        He would become an unlawful non-citizen and liable to be detained (he is already in detention at the time of the hearing) and removed from Australia, and
b.        He would be limited in the types of visas he could apply for.
140. He has no family members in Australia so there would be no consequential cancellations as a result of this decision.
141. I consider that the likely or possible consequences of the visa cancellation outlined above are reasonable, given these administrative sanctions are the consequence of the visa-holder obtaining a protection visa by providing false information. I therefore give little weight to the consequences of the visa cancellation decision. I also note that the individual can avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia. He has a valid Iranian passport and has already travelled to that country on two occasions since being granted his protection visa.
142. An International Treaties Obligation Assessment (ITOA) has not yet been completed, however based on the information available to me I do not accept that there is a real chance   that the visa-holder would be persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion. I do not accept that the visa cancellation and subsequent return of the visa-holder to Iran would breach any of Australia’s non-refoulement obligations.
143. I accept that the Iranian economy is in difficult circumstances due to the US sanctions regime on the country, although I am satisfied that the visa-holder would be able to subsist given he has previously spent a total of four months in that country since the grant of his protection visa, where he lived with family and was able to socialise with friends. He has previously worked as [occupation] in Iran and given the presence of family it is reasonable to believe that he would be able to work and be accommodated with the assistance of his family.
144. While I accept that the visa-holder’s removal to Iran would represent a major disruption to his life, the reality is that he would never have been granted a protection visa in the first place if he had not lied about his sexuality and alleged harm in Iran. Ialso note the fact that he has spent approximately half his time since he arrived in this country in priosn for drug offences. Given the gravity of his actions and having regard to the prescribed circumstances in r 2.41, additional policy considerations and all of the visa-holder’s circumstances, I have decided hat the visa-holder’s visa should be cancelled.
CONCLUDING PARAGRAPHS
145. The Tribunal has decided that there was non-compliance by the visa-holder in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
146. The Tribunal affirms the decision to cancel the visa-holder’s Subclass 866 (Protection) visa.
Rodger Shanahan
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.

102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.

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.

[2021] AATA 5170

30 November 2021

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