2114313 (Refugee)

2114313 (Refugee) [2022] AATA 3257 (1 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  2114313
COUNTRY OF REFERENCE:                   Iran
MEMBER:Melissa McAdam
DATE OF DECISION:  1 August 2022
DATE CORRIGENDUM
SIGNED:8 September 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words “On 1 December 2016 the department delegate issued a notice of intention to consider cancellation of the applicant’s resident return subclass 155 visa” at paragraph 4 should be replaced with “On 1 December 2016 the department delegate issued a notice of intention to consider cancellation of the applicant’s class XA subclass 866 Protection visa”.
Melissa McAdam
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2114313

COUNTRY OF REFERENCE: Iran
MEMBER:Melissa McAdam
DATE:1 August 2022
PLACE OF DECISION: Sydney
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 01 August 2022 at 2:53pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – Federal Circuit and Family Court remittal – incorrect information in the visa application – attacks by the Basij – return visits to Iran – modified appearance and behaviour upon return – passport renewal – compelling circumstances – serious family illness – no non-compliance – discretionary power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97-105, 107-109
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with his obligations under s 101(b) of the Act. 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 application was previously decided by the Tribunal, differently constituted,[1] however on appeal to the Federal Circuit and Family Court of Australia the Court ordered that the decision be quashed and directed the Tribunal to determine the matter according to law.[2]
Section 107 Notice, NOICC
[1] AAT Case Number 1712734.
[2] [Source deleted.].
On 1 December 2016 the department delegate issued a notice of intention to consider cancellation of the applicant’s resident return subclass 155 visa (the NOICC), under s 107 of the Act, to the applicant. In the NOICC the delegate set out the following:
Particulars of the possible non-compliance:
I consider that there has been non-compliance with the following section of the Migration Act 1958:
Section 101.Visa application must be correct
A non-citizen must fill in or complete his or her application form in such a way that:
…
(b) no incorrect answers are given or provided.
…
[In] January 2012 you arrived in Australia as an illegal maritime arrival.
On 14 April 2012 you lodged an application for a class XA Protection visa. As part of this application you provided a Form 866C – Application for a Protection (Class XA) visa. You stated the following in Part C of the form (in italics):
Question 42. I am seeking protection so that I do not have to go back to Iran
Question 45. What do you fear may happen to you if you go back to that country? see statement of claims
Question 46. Who do you think may harm/mistreat you if you go back? see statement of claims
Question 47. Why do you think this will happen to you if you go back? see statement of claims
Question 48. Do you think the authorities of that country can and will protect you if you go back? You placed a tick in the box beside ‘No’.
Why not? see statement of claims
In the statutory declaration dated 7 April 2012, you made the following statement of claims:
……………
4. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to Iran. There were many incidents that happened to me and I will provide further information in relation to my protection claims during my interview with the officer of the Department of Immigration and Citizenship.
5. I fear returning to Iran.
…
8. I used to be [prominent] in [sport 1]. In either 2007 or 2008 I wanted to compete in [a specified] [tournament] but was not permitted to because of my [jewellery]. It is illegal to have [this kind of jewellery] or [appearance of this] kind. I had been in trouble because of my earrings before. I had an argument with one of the officials organising the event. He was from Sepah and when he saw my [appearance] he refused my entry. [Due to my appearance] they said I was worshipping ‘evil’.
9. I did not accept their reasons and we had a huge argument. As a result of this I was not only prevented from competing in the tournament but to compete all together. A few days after this incident I went to the my gym. It was a government gym, called [name]. I just started training when a few guys came and kicked me out although I was still a member. I believe they were Basij but they did not wear uniform.
10. This incident affected me very much. I was very depressed. My whole life was based on my athletic career. It was extremely important for me and when this was taken away from me I did not really know what to do. I stopped training all together.
11. I have been in difficulties with the Basij many times. They picked on me because I had a tan, had [jewellery] and like wearing fashionable clothes. I stood out because I worked out and they picked on me for this reason. I was arrested four or five times for similar reasons.
12. In 2009 after a religious ceremony, which we call Imam’s Khomeini departure. I was arrested because I wore a T-Shirt and showed my [jewellery]. They took me to a Basij station near my house and the next morning I was taken to the [named court]. Because of my [jewellery] I was charged with a few things like ‘disrespecting Sharia law’ and ‘disrespecting Imam Khomeini’ mourning and convicted to [number] lashes. They released me after doing that.
13. I am against this government but I did not dare to attend any demonstrations because of what happened to me. The authorities had already identified me as troublemaker I thought if they arrest me on a demonstration they would treat me extra harshly. My mother has gone through so much that I did not want to do this to her. I did not want her to have her only son arrested.
14. In 2009 during the elections the government was cracking down on satellite dishes. They did not want people to follow the new and one day some people came to our house to collect ours. I don’t know who they were but believe they were either from Sepah or Ettealat. I tried to stop them and they started to beat me in front of my mother. My mother tried to help me buy they pushed my mum. Such incidents were very hard for me to bear. I am sick and tired of this government.
15. My problems with the authorities also caused my relationship to my fiancé to end. My fiancé and I were stopped several times by the Basij. When we told them that we were engaged they demanded that our families come to the station to confirm our relationship status. It created problems for our families and they started to have conflicts. One night my finance and I got arrested when we went out for dinner. I am not really sure who arrested us because they wore no uniform and showed us no badge. We were taken to a base but there was no sign outside. We were kept two days. I was beaten badly during these days. After this incident her family incident her family insisted to break up the engagement.
16. I believe if I return to Iran I will continue to suffer under the Iranian authorities as the situation in Iran is getting worse. They have made my life miserable and this will continue doing so.
17. The authorities in Iran cannot protect me because they are part of my problem. For the same reason I cannot relocate to another area in Iran because the authorities.
On 4 June 2012, your Protection visa application was refused. The delegate was not satisfied that there was a real chance that you would be targeted and subjected to persecution because of your actual or imputed political opinion in the reasonably foreseeable future if you were to return to Iran. As such, the delegate was not satisfied that you were a person to whom Australia owed protection obligations.
On 6 June 2012, you made an application for review of the decision at the Refugee Review Tribunal (RRT).
On 22 August 2012, your matter was heard at the RRT. You claimed that you were a member of three social groups, based on your political opinion as an opponent of the Iranian regime, your imputed political opinion as a failed asylum seeker and your membership of the particular social group of ‘young Iranians seeking a western lifestyle’. Regarding the definition of ‘young Iranians seeking a western lifestyle’, the tribunal member stated that ‘the most relevant shared characteristics can be summarised to be their youth, and their aspirations to lead a western lifestyle’. The tribunal member accepted that you feared harm because you were a member of two groups: based on your political opinion as an opponent of the Iranian regime and ‘young Iranians seeking a western lifestyle’. The tribunal member assessed that you were a refugee and therefore a person to whom Australia owed protection obligations. The decision was remitted to the department for reconsideration.
On 26 September 2012 on the basis of the tribunal member’s direction as well as meeting other relevant criteria, you were granted a Protection visa.
Following the grant of a Protection visa, the department has become aware of the following adverse information regarding your refugee claims. [In] 2012 the Iranian Embassy in Canberra issued you with an Iranian passport ([Number]). This passport was issued approximately [number] weeks after the grant of a Protection visa, based on your claimed fear of returning to Iran. You used this passport to make two (2) trips back to Iran:
- departed Australia [in] February 2013 and returned [in] April 2013; and
- departed Australia [in] May 2015 and returned [in] August 2015.
Notably, your first trip to Iran occurred approximately four and a half months after the grant of your Protection visa. You returned from Iran to Australia unharmed following both trips.
Upon your arrival into Australia [in] August 2015, you were interviewed by Australian Border Force officers at [a named] airport regarding your travel overseas. During this interview, you stated that you had returned from travel to Iran. You presented your Iranian identity card and the Iranian passport issued in your name to the officers. The passport contained Iranian entry and exit stamps which evidence your travel to Iran. However, in response to the question ‘Country where you spent most time abroad’ on your incoming passenger movement card ([number]) you wrote ‘[Country 1]’.
Given the grant of your Protection visa on the grounds that you faced a real chance of harm by the Basij forces in Iran, followed by you voluntarily obtaining a new Iranian passport and two trips back to Iran of approximately five months cumulatively, consider that you have provided incorrect answers to questions 42, 45-48 of your Protection visa application Form 866C.
In question 42 you stated that you did not want to return to Iran. This information is incorrect as I note that you voluntarily obtained an Iranian passport and returned to Iran soon (four months) after being granted a Protection visa. Given your two trips back to Iran of approximately five months cumulatively, I consider that you did not fear the Basij forces in Iran or returning to Iran.
In question 45 you stated in your statement of claims copied above that you feared if you returned to Iran you ‘will continue to suffer under the Iranian authorities as the situation in Iran is getting worse’. You stated that the Iranian authorities made your ‘life miserable and will continue doing so’. This information is incorrect as I note that you voluntarily obtained an Iranian passport and returned to Iran four months after being granted a Protection visa. You made two trips back to Iran of approximately five months cumulatively.
At question 46 you stated at paragraph 11 of your statement of claims copied above that you ‘have been in difficulties with the Basij many times’ and that if you returned to Iran the Basij forces may harm/mistreat you because of your actual or imputed political opinion. This information is incorrect as I note that approximately four months following the grant of your Protection visa you voluntarily obtained a new passport from the Iranian authorities and made your first trip back to Iran. You made your second trip to Iran approximately two years and seven months following the grant of your Protection visa. You spent a total of approximately five months cumulatively in Iran. I consider that the information you provided in support of your Protection visa application was incorrect and you did not fear harm or mistreatment from the Iranian government authorities.
At question 47 you stated at paragraph 11 of your statement of claims copied above that you ‘have been in difficulties with the Basij many times’ and that if you returned to Iran the Basij forces would harm/mistreat you because of your actual or imputed political opinion. I consider that you provided incorrect information when you stated that ‘I believe if I return to Iran I will continue to suffer under the Iranian authorities as the situation in Iran is getting worse’. This information is incorrect as I note that following the grant of your Protection visa you made two trips back to Iran of approximately five months cumulatively shortly after the grant of your Protection visa. You returned from Iran to Australia unharmed following both trips.
At question 48 you stated in your statement of claims copied above that if you returned to Iran, the ‘authorities in Iran cannot protect [you] because they are part of [your] problem. For the same reason [you] cannot relocate to another area in Iran because the authorities [sic]’. This information is incorrect as I note that you voluntarily engaged with the Iranian authorities by applying for an Iranian passport and four months after the grant of your protection visa you returned to Iran. You have returned to Iran twice for approximately five months cumulatively. You returned from Iran to Australia unharmed following both trips.
In view of your subsequent actions post your Protection visa grant, I consider that you did not hold the adverse profile as claimed at the point of your Protection visa application. I consider that you have not complied with section 101(b) of the Migration Act 1958. Therefore your Protection visa is liable for cancellation under section 109 of the Migration Act 1958. It does not matter whether you deliberately or inadvertently did not comply.
Response to NOICC
On 22 December 2016 the applicant’s then Agent provided the following submission in response to the NOICC:
…
We wish to discuss the circumstances surrounding [the applicant’s] travel to Iran and explain that [the applicant’s] return to Iran for the reasons discussed below do not equate to the fact that his protection claims are invalid.
… The basis upon which the delegate's decision rests is that [the applicant’s] travels to Iran were contradictions to the claims of persecution and fear of Iran that [the applicant] stated within his protection visa application.
…
It is also necessary to address the information provided by the delegate in relation to [the applicant’s] arrival interview after having returned from Iran the second time ([in] August 2015). [The applicant] advised the Australian Border Force officers that he had returned from travel in Iran and also presented them with his Iranian passport and his Iranian identity card. However on the incoming passenger movement card, he had responded to the question 'country where you spent the most time abroad' with '[Country 1]'.
[The applicant] advised that he did not realise what the question was asking at the time. He interpreted the question to relate to where he had spent time in transit, which he answered honestly when he wrote '[Country 1]'. [The applicant] advises that his English is still not perfect and he continues to make mistakes sometimes. [The applicant] is remorseful for providing this incorrect information and advises that he has never tried to hide the information from the Australian authorities, which is supported by his answers in the interview with the Border Force officers. He does not wish to be dishonest in his communications with the Australian authorities to any extent.
Below we will address the compelling circumstances which surrounded [the applicant’s] return to Iran.
We submit that the delegate and the Department should not exercise their discretionary power to revoke [the applicant’s] protection visa under s109 as his return to Iran can be excused by compelling and compassionate circumstances that were beyond his control, and in light of which, [the applicant] acted reasonably.
As per his statement., [the applicant’s] mother suffered from extensive rheumatoid arthritis, and as a result of this she had been experiencing inflammations and infections since approximately 1388 on the Persian calendar (which equates to approximately 2009 on the Gregorian calendar). [The applicant] had been caring for his mother and was financially responsible for both of them whilst he lived in Iran. He was the sole carer for his mother as his only sister had married and lived with her own family. However due to the extent of his persecution by the Basij, he was forced to flee Iran and come to Australia.
In early 2013 [the applicant] was made aware of his mother's rapid deterioration in health after her [Relative A], who was like a father-figure to her became ill and passed away. His mother was hospitalised and kept in the Intensive Care Unit at the hospital. [The applicant] stated that he was fearful his mother may pass away and so he did all he could to see her in case that came to happen.
According to his statement [the applicant] contacted the Iranian Embassy in order to get a passport and they advised him to go to the website and use the forms online. [The applicant] did not have to personally attend the Iranian Embassy at all.
[The applicant] stated that once he had his passport and he had travelled back to Iran in a matter of six weeks. Once in Iran, [the applicant] advised that his mother was still in hospital, but after a month she was released and he took her home to care for her. For the remainder of his stay in Iran, [the applicant] stayed at home with his mother, caring for her and keeping an eye on her health, only leaving the house when he was forced to, such as to get medicine for his mother or food for them to eat.
Even when he left the house, [the applicant] deliberately acted discreetly and attempted to avoid having attention brought to him by growing a beard, using sunglasses and clothes that he considered to help him blend in with the community. He advised that he did not go anywhere else while he was in Iran as he was anxious about being found by the Basij who had previously persecuted him.
When [the applicant] returned to Iran the second time, again, because of his mother's extremely poor health and his sister's incapacity to care for her, once again he was there only to care for his mother. In Iran, he again acted discreetly and did not visit any other place or person.
In accordance with [the applicant’s] statement, his travel lo Iran was due to his mother's exceedingly poor health and the fact that he thought she may pass away. Due to the strength of their connection, [the applicant] felt he was compelled to travel to Iran, despite the risks, to see his mother again. [The applicant] was anxious of being located by the Basij whilst in Iran, but he felt he had no other option but to travel and see his mother while she was battling her illness.
Despite the fact that [the applicant] returned unharmed, his travel to Iran does not eradicate any protection claims that he has for his protection visa. For instance, it would appear to be a stretch to claim that [the applicant], in dealing with the Iranian Embassy in Australia via phone once for a passport, had no adverse profile whatsoever, nor does he fear the Iranian authorities. We submit that [the applicant’s] experience with the Iranian Embassy does not reflect what may happen to him if the authorities become aware of his presence in Iran. Contacting the Iranian Embassy in Australia in a phone call does not equate to being in the custody of the Iranian authorities or the Basij in Iran.
Furthermore, whilst in Iran [the applicant] states thar be had to act discreet to the point where he grew facial hair and dressed in a way that he felt would attract the least amount of attention. He dressed this way and grew facial hair not because he wanted to, but because he felt he would not be safe if he acted and dressed in the way that he usually would. Moreover, [the applicant] rarely left the house and only did when it was absolutely necessary such as to get medicine or groceries. He stated that he did not visit another place or person. As a result of acting and living discreetly while in in Iran he did not experience any harm.
However, it would be unreasonable to assume that because [the applicant] as able to stay in Iran for two short periods of time whilst acting and living discreetly means that [the applicant] could return to Iran permanently and not face a real chance of persecution. Due to his efforts to act and dress discreetly he was able to avoid the Basij’s attention during his visit. It would be unreasonable to expect [the applicant] to return to Iran to live discreetly for the remainder of his life.
As per 5J(3 )(b) of the Act a person cannot be expected to conceal an innate or immutable characteristic of the person in order to eliminate their well-founded fear of persecution. We submit that [the applicant], in growing a beard, wearing sunglasses, and dressing in common clothes as forced to conceal innate feature such as his physical appearance and his preference in clothing style in order to protect himself from being identified by the Basij. It would be unreasonable to expect [the applicant] to return to Iran and to take measures to conceal his physical appearance in order to avoid persecution.
We submit that [the applicant’s] travel to Iran cannot found the basis of a decision to return him to Iran permanently because it was only due to the potential death of his mother, that he returned to Iran despite the risk of being found by the Basij. Furthermore [the applicant] only avoided harm by acting and dressing discreetly including growing facial hair, dressing in a conservative way and rarely leaving the house. [The applicant] cannot be expected to return to Iran and live discreetly to avoid harm as this suggestion is expressly prohibited s 5J (3) of the Act.
Furthermore if [the applicant] was made to return to Iran, not only would he be required to conceal his physical appearance to avoid persecution, he would also need to conceal his political opinion.
…
[The applicant] advises that, had he known that he could have obtained permission from the Department in respect to his travel he would have sought this permission. However he did not know about this option. [The applicant] asserts that he felt he had no option other than returning to Iran to see his mother in case she passed away.
…

The applicant also submitted a written statement in which he writes:
… I wish to provide the following statement as an explanatory statement for returning to Iran.
To get an Iranian passport. I had to contact the Iranian Embassy by phone. They directed me to use the internet forms. We had to provide a code. My mother had to contact Foreign Affairs to get the code. I then provided the code by email to the Embassy. I did not have to personally attend the Embassy or meet them. My passport arrived at my house after approximately two weeks.
My mother has had a terrible medical condition since 1388. She has Rheumatism (also known as rheumatoid arthritis) and internal infections due to the Rheumatism. At that time, she had to visit doctors every week.
My parents divorced when I was [age] years old. My sister and l (the only children of my mother) lived with my mother at her home in Tehran. When I was older, I was working and was financially responsible for my mother and I. My sister was married and living with her own family. This situation created a great bond between us and also made my mother reliant on me.
I left Iran in December 2011 due to problems with the Basij. At that time, my mother was still very sick but I had to leave due to threats to my life from the Basij. My mother supported me in
fleeing Iran even though she was deteriorating health-wise. She wanted me to be safe.
After exiting Iran, I was in contact with my mother at least twice a week for a long time and I was keeping track of her health.
In about the 10^th month of 1391 (approximately December 2012), my mother's [Relative A], who was looking after her and was very close to her, passed away and with this my mother's health suddenly deteriorated. As a result, she was hospitalised. My niece (my sister's daughter) told me over the phone that my mother was sick and hospitalised. She was in the Intensive Care Unit as the infection has reached her heart. I became very anxious and wanted to be with her.
I immediately began to organise everything for my travel to Iran and went to Iran [in] January 2013. I knew that I should not go to Iran as the law would not allow me but it was a very difficult time for me. Despite the risks, I had to see my mother in case she passed away. If I did not see her, I would never have forgiven myself. My mother was and still is very unique to me and I felt that I had to do anything I could for her. I was not aware that I could seek permission from the Department to travel to Iran. If I had known this, I would have sought this permission.
I quickly got my passport and within six weeks I went to Iran. My mother was still in the hospital and had deteriorated badly. I was very concerned that she could die and I knew she would like to see me before that. I desperately wanted to see her and do whatever I could for her. My mother and I have a very close relationship and she is extremely important to me.
I stayed in Iran for two months and ten days or about ten weeks (until [April] 2013).
After I was there for a month, my mother's health finally began to improve and she was released from hospital. I took her back home and for the rest of my stay, I was with her. I looked after her and make sure her health was still improving until she recovered from that episode. I rarely left the house unless I absolutely had to. Sometimes I had to leave to go and get medicine for her or buy food for us to eat.
When I had to leave the house, I was very anxious. I was concerned about being confronted with the Basij so I grew a beard and would use sunglasses and clothing that would blend well with the community. I had to live and move around very discreetly and luckily I did not encounter any issues at that time.
I had bought a return ticket for a ten-week trip, taking into account that I could only stay up to three months considering citizenship regulations. By the time I came back my mother had improved in her health.
About two and a half years after I returned to Australia my mother again became hospitalised. This was because she had fainted after seeing that my niece brother her leg and her bones were sticking out. She was taken to the hospital by ambulance. A few days later, while my mother was still in hospital, my sister and her husband faced serious business bankruptcy and had to suddenly put all their attention into their business and financial affairs. My mother was still in the Intensive Care Unit at hospital and my sister called me for help. My mother had no one else to care for her except us. I immediately organised for my trip and within about one week, I was in Iran to help care for my mother (on approximately [date]). For the first ten days I could only see my mother from behind the glass window of the Intensive Care Unit. She was in the hospital for another two months before she was allowed to go home.
I was only there to support my mother who was seriously unwell and in the Intensive Care Unit in the [named] hospital. I did not visit any other place or person. I only went back to Iran because my mother was so unwell that I thought she may pass away. I came back to Australia [in] August 2015.
My mother is still going through the ups and downs of her illness.
I have been a law-abiding member of the community during my five years in Australia. I have assisted the community organisation '[Agency 1]' in [Town 1] as a volunteer. I assisted the [Town 1] Police in their endeavours to give orientation to the new arrivals. I have certificates from these organisations that I can supply.
I have been in a relationship with an Australian girl … for the last six months. We spend most of our rime together either at her family home or my house. Her parents and my mother are fully aware of our relationship and we are intending to get married. We had set our marriage date for [a day in] January 2017. However, due to this letter, we have decided to delay this.
The applicant also submitted:
-Photographs of himself and his current fiancée.
-Certificates of appreciation from [Agency 1] in [Town 1], in recognition of the applicant’s volunteer work for the association.
-Copies of the applicant’s Australian Titre de Voyages and his Iranian passport.
-Numerous medical documents relating to the applicant’s mother illness.
Delegate’s Decision
The delegate found that the applicant had provided incorrect information in his Protection visa application and therefore had not complied with s 101(b) obligations.
The delegate assessed the discretionary considerations and decided to cancel the applicant’s visa.
Information to the Tribunal
Written Submissions, 2017
The applicant provided written submissions to the Tribunal from his representative at the time. He also provided a copy of his then wife’s Queensland Birth Certificate; a Qld Tenancy Agreement naming the applicant and his wife as co-tenants; and a letter from the applicant’s wife’s parents confirming that the applicant married their daughter [in] February 2017.
Tribunal Hearing, 17 January 2020
The applicant appeared before the Tribunal, as previously constituted, on 17 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The Tribunal, as currently constituted, has listened to a recording of the hearing, and provides the following summary of the interpreted responses by the applicant during the hearing:
a.The applicant married in Australia [in] April 2017. His wife works in [a named occupation]. She knows about the applicant’s entire life and why he came to Australia. She is an Australian citizen, born here.
b.The applicant came to Australia because of his involvement with the religious police, the Basij in Iran. His problem with the government was not with the Constitution. He had not broken any law. His problem was with the religious authorities, like Basij and Sepah, and the bits they added to the law. He was quite involved in [sport 1], it was his profession. He was kicked out of the sport because of his [appearance]. They would arrest him pick him up and release him for having [jewellery]. Not only [jewellery]. Four of five times he was arrested for [jewellery], and also for tanning his body. He would be arrested because of his [jewellery], tanning and his hairstyle.
c.On the day commemorating the passing of Imam Khomeini he was taken to the watchhouse for two or three months and tortured and his parents did not know where he was. He was taken to the watch house for two or three days. He was not put in jail.
d.He was tortured on the day commemorating Imam Khomeini’s passing. He had used alcohol and was arrested by the religious police for drinking alcohol and going against the religious law. He was taken to a place and received [number] lashes. They did not leave scars. There are two types of beating, light where they put the Holy Koran under your arm and just strike you lightly; and strong where you are tied up and splashed with salty water and lashed harshly so that your back bleeds.
e.He was not drunk but his breath smelled of alcohol. He had been driving with his then fiancée at the time. The Basij saw them together and took them to a place where they were separated to see how they were related. The applicant told them they are friends who are supposed to be married. Because it was the day to commemorate Imam Khomeini’s death, on which everyone was supposed to be mourning, the Basij was stopping cars. If boys and girls are together on the street the Basij will stop them. It was in 1388, so in about 2009. The Basij pulled the applicant over and told him to open the car boot. The Basij said he could smell alcohol on the applicant.
f.It was eleven years ago and he is trying to recall it as best he can.
g.The Basij looked at the applicant’s girlfriend as if she was a prostitute because she was with a man and they made comments to her. This made the applicant angry so he started making comments at them.
h.He was handcuffed and he and his girlfriend were put in separate cars. People in the applicant’s car hit him on the back and on the head. The drove for about 45 minutes to a place. He could hear his girlfriend screaming in another place. He learned later that they had sexually assaulted her. This was one of the reasons they could no longer get married. It was not a decision the applicant made, it was just what she told him she wanted, that it was better if they did not get married after what happened.
i.He and his girlfriend were caught in the afternoon. The next day he was taken to the court and the applicant admitted drinking so they told he had to have [number] lashes. He was lashed that same day.
j.After two or three months he had a trial. His family paid some money to bribe people and the applicant was released and told to report back to the court when summonsed. He went to the court on a number of occasions but things would not proceed so that he would have to come back a subsequent time.
k.From 1386 to 1387 the applicant did his compulsory military service. A year or two later the applicant started getting harassed by the Basij because of how he looked. Every now and then the Basij would come and beat him and take things from his house. This happened in front of the applicant’s mother. Her illness became worse because of this. Because of his concern for her he decided to get away. She has an infection in her blood and stress and tension make her worse. Because of all the injustices he experienced he wanted to leave Iran. He knew he was not the type of person to fit in by force, and it was affecting his mother badly.
l.He did not want to be a Muslim, or have a beard, or got to mosque but they were forcing him too. He knew that because of the way he looked and behaved he would keep being harmed in Iran. He knew people were going to Indonesia and then Australia. The applicant had a passport because he had completed military service. He had no trouble getting a passport in Iran. He went to Indonesia. His passport was taken from him.
m.In Australia his sister called him and told him that their mother was dying. From when he was 5 or 6 years old she had looked after him by herself. Straight away he rang the Iranian embassy to tell them he lost his passport and he applied for a new passport. He knew he was breaking the rules but he was worried he would not see his mother again.
n.His sister does not care so much. When he was back in Iran his mother’s joints would get frozen after just a little movement. While the applicant was in Iran he would wash his mother and feed her. [The applicant started crying].
o.The applicant was not known by the government or on any government system. Nobody knew he was in the country. He spent weeks in the hospital. He stayed there. In the hospital system in Iran relatives can stay there to help care for the patient. When she was released from hospital he took his mother home and he stayed at home looking after her. He did not show himself outside much. When his mother had recovered enough she told him to please go. The authorities went to her home a couple of times later to ask about the applicant.
p.The applicant is living and working like a normal human in Australia. He came here to bring his mother here and look after her. He would never have gone back to Iran if he had his mother with him here.
q.He got married three years ago but did not register the marriage because he did not want the Australian authorities thinking he was just getting married for a visa. He is becoming a Christian but has not raised his baptism because he did not want the Australian authorities to think he got baptised for a visa. His wife wants children but he says no because his situation is uncertain. His wife will leave because she has no future with him.
Post-Hearing Submission, 2020
On 30 January 2020 the applicant’s representative provided a further written submission regarding cultural difficulties the applicant had in presenting his claims at the hearing.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:
that he had provided incorrect answers to questions 42 and 45-48 in his Protection visa application Form 866C
Question 42 of Form C is expressed in the following terms “I am seeking protection in Australia so that I do not have to go back to:”. The applicant wrote “Iran” in the corresponding answer field.
Question 45 of Form C states “What do you fear may happen to you if you go back to that country?” In the Statement of Claims he referred to in the answer field he has written that he feared if he returned to Iran he “will continue to suffer under the Iranian authorities as the situation in Iran is getting worse”; and that the Iranian authorities made his “life miserable and will continue doing so”.
Question 46 of Form C states “Who do you think may harm/mistreat you if you go back?” In the Statement of Claims he referred to in the answer field he has written that he has “been in difficulties with the Basij many time” and that the Basij forces may harm/mistreat him.
Question 47 of Form C states “Why do you think this will happen to you if you go back?” In the Statement of Claims he referred to in the answer field he has written that he has “been in difficulties with the Basij many times” and that “the situation in Iran is getting worse”.
Question 48 of Form C states “Do you think the authorities of that country can and will protect you if you go back?” In the Statement of Claims he referred to in the answer field he has written that the authorities in Iran can’t protect him because they are part of the problem.
The applicant’s protection claims
The applicant’s initial claims in his Protection visa application amounted to being forced out of his chosen professional sport because of his [jewellery]; being stopped, harassed, briefly detained and hit by the Basij on occasions because of his [jewellery] and other aspects of how he looked; being detained on occasions with his then fiancée for being together in public; being hit, and his mother pushed, by Sepah when they came to his home to remove the satellite dish; being stopped and questioned by Basij when with his mother due to her youthful appearance and having to prove their relationship; and being detained and hit by the Basij for drinking alcohol on a religiously important date. He further claimed to have been once punished with [number] lashes and that his longest detention was two or three days. He explained he left Iran to avoid further mistreatment from the Basij due to his appearance and behaviour and to try to find a safe country for his mother who was seriously ill.
The applicant’s claims and his presentation of his story was found credible by the Delegate who interviewed the applicant in regard to his Protection visa application.
During his RRT review application the applicant repeated these claims, in writing and in oral evidence. The RRT found the applicant credible and truthful in his account.
As part of his RRT application the applicant’s representative further submitted that the applicant would be at risk of harm in Iran as a failed asylum seeker from the west. The RRT accepted this submission.
During his cancellation review process he described his problems with the Basij as religious ones due to his appearance and behaviour, not political problems. During his hearing he described being stopped, harassed and detained for short periods and being lashed on one occasion. There is some confusion in the interpreting in which the applicant’s response is interpreted as saying he was detained for two or three ‘months’. This followed an exchange between the applicant and the interpreter in which the interpreter interrupted the applicant, then a further delay while the interpreter explained at length to the then presiding Member that she had interrupted the applicant and told him to speak about specific things. After this the interpreter then interpreted the applicant’s actual response. The interpreter’s reference to ‘months’ is very inconsistent with all of the applicant’s previous evidence, and all his immediate and subsequent evidence following this interpreted passage, that his watch house detention was two or three days. The Tribunal therefore considers it likely that the interpreter made an accidental mistake in interpreting the applicant’s response as two or three ‘months’ instead of two or three ‘days’.

Apart from this confusion the applicant’s presentation of his history largely accorded with his previous accounts of how he had looked and what he had encountered in Iran and why he left there. He at times appeared to conflate or confuse isolated events but was consistent about the detail of things that were done to him during his time in Iran. Given the passage of time the applicant’s difficulties differentiating events is plausibly due to a deterioration in his ability to recall and separate the numerous times he faced harassment from the Basij in the few years prior to his departure. The applicant did add a further incident regarding the sexual assault of his then fiancée but no new claims regarding his own situation. The Tribunal considers it reasonable that the applicant may have wished to respect his ex- fiancée’s privacy and reputation by not previously revealing her sexual assault.
In sum the applicant has consistently maintained that his problems in Iran were due to his appearance and non-conforming behaviour together with the zeal of the Basij intruding into his personal life. The applicant has never claimed to have an anti-government or political profile in Iran that triggered any adverse attention from other state authorities, such as the police or the Intelligence services (the Ettela’at). His one problem with the Sepah e-Pasdaran merely involved them taking his home satellite when there was a general crackdown on domestic satellites. He stated repeatedly he had not been involved in any anti-government protests or other anti-government activity in Iran.
The applicant also has always maintained that he departed Iran not because of any imminent threat but to escape the pattern of harassment, interference and short detentions he had been subjected to from the Basij from time to time. He also has expressed his fears on return of again being subjected to these sporadic abuses. He has not indicated that he is of adverse interest to the Iranian authorities because of any political or anti-government profile, or that he would be arrested upon arrival in Iran. He merely explained that he did not want to be subject to further abuses from the Basij while in public, due his appearance and non-conforming behaviour.
In the Tribunal’s view the applicant has not appeared to exaggerate or bolster his claims for protection despite potential scope to do so. He has consistently maintained them in a relatively low-key manner since his arrival in Australia.
The applicant’s claims of being subjected to adverse attention from the Basij because of his appearance and behaviour is supported by the available country information, referred to by both the Department Delegate and the RRT, during his visa application process.
The Tribunal is therefore not satisfied that there is anything about the way the applicant has presented his claims and information, over the course of both his Protection visa application process and his visa cancellation process, which indicates the information he provided in his Protection visa application, including his responses to questions 42, 45, 46, 47 and 48 of Form 866C, is not credible or is incorrect.
The applicant’s returns to Iran
The applicant has returned twice to Iran since being granted a Protection visa. The first time was in February 2013, about three and a half months after the grant of the visa. The second time was in May 2015.
The applicant has submitted extensive medical evidence regarding his mother which confirms she suffers from rheumatoid arthritis and osteoporosis, and that she was hospitalised from [January] 2013 to [March] 2013, and again from [May] 2015 to [June] 2015. The reports indicate that the hospitalisations were due to infections caused by the rheumatism and the escalation of her illness and severe mobility disorders.
Since his arrival in Australia the applicant has repeatedly emphasised his close relationship to his mother and his primary and sometimes overriding concern for her well-being and future. It is therefore quite plausible that despite journeying to Australia to escape harassment from the Basij he would want to return to Iran temporarily when his mother was hospitalised and there were fears for her future.
Each time he has provided information about his reason for his returns to Iran he has asserted it was because of his mother’s serious illness. This includes information he was recorded as providing spontaneously at the airport upon his return to Australia. The Tribunal also notes that the applicant’s two returns to Iran coincided with serious declines in his mother’s health and her hospitalisations. He did not return to Iran at any other time.
As described by the applicant it was the ongoing situation of being randomly harassed and detained by the Basij when in public, because of how he chose to look and act, that he found intolerable in Iran, not a predictable and imminent threat of arrest or violence. The nature of the applicant’s claims do not reveal there was an immediate direct risk to him, on return to Iran, from the Intelligence or police. It therefore presumably did not pose a high level of risk to him to fly to Iran, be with his mother in hospital and care for her at home, over a two month period. This is particularly so in light of his evidence he modified both his appearance and behaviour to avoid attention from the Basij.
During the cancellation proceedings it has been suggested that the applicant’s approach to the Iranian Embassy, and his application for a new Iranian passport, indicate he provided incorrect information about his fears of the authorities in Iran. The Tribunal disagrees with this suggestion. The applicant had identified the Iranian authorities as unable to protect him in Iran because they were part of the problem, meaning that they would not stop the Basij, a street level paramilitary force which is a part of the state apparatus but low in its hierarchy, from harassing him. It is not apparent from the applicant’s Protection visa information that he was implying that the Iranian authorities, in terms of the government more broadly, posed a direct threat to him. In the Tribunal’s view it is not markedly contradictory for a person who complains of occasional but ongoing harassment from the Basij in Iran to approach the Iranian authorities to obtain a travel document.
The Tribunal is therefore not satisfied that the applicant’s two returns to Iran, in 2013 and in 2015, indicate that the information in his Protection visa application regarding his experiences in Iran and reasons for departure are incorrect.
Conclusion on non-compliance
There are no other indications before the Tribunal that the applicant provided incorrect information in his Protection visa application.
For the reasons given above, the Tribunal is not satisfied that the applicant did provide incorrect information in his Protection visa application.
The Tribunal therefore finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Melissa McAdam
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 3257

1 August 2022

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