2119223 (Refugee)

2119223 (Refugee) [2023] AATA 2681 (15 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sheri Enkeshafi (MARN: 0958723)
CASE NUMBER:  2119223
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:15 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 15 May 2023 at 2:17pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – claimed fear of persecution – engagement with the Iranian embassy in Canberra – voluntary return to Iran – mental health challenges – Complex Chronic Post Traumatic Stress Disorder – compelling reason to travel – sister’s diagnosis with cancer – source of fears – personal vendetta – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109, 425
CASES
Zhao v MIMA [2000] FCA 1235
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 Home Affairs 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 they had found the applicant to have provided incorrect information regarding his claims of facing harm in his home country of Iran. The delegate reached this conclusion on the basis of the applicant having engaged with the Iranian Embassy in Canberra to obtain a passport and then having travelled back to Iran where he remained for a period of six weeks.
The issue in the present case is whether the ground for cancellation, namely having provided incorrect information, is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
PROCEDURAL MATTERS
The Tribunal was put on notice of the applicant’s severe mental health challenges.
In a written submission made by [Mr A], Clinical Psychologist, who assessed the applicant across three interviews prior to the hearing and had the benefit of notes from his own earlier professional engagement in a treating capacity with the applicant, he wrote:
I would expect due to lapses of concentration, some impairment in autobiographical memory function and the normal variation in memories subject to repeated recollection, that further inconsistencies may emerge if his past is again explored…It would assist [the applicant]’s capacity to engage in visa assessment interviews to be alerted to questions that will be put to him prior to the interview and to be able to respond to them initially in written form through his agent. Where there are areas of history that are traumatic but whose further consideration serves no legally relevant purpose, it would assist [the applicant] to know prior to the interview that these events will not be further explored.
Challengingly, the applicant was professionally assessed to have an impairment including one such that included an impact on autobiographical memory function. The nature of the matter before this Tribunal, though, requires relying upon his memory of circumstances reaching back over a decade and in some cases several decades including recalling his own state of mind ten years ago.
[Mr A] noted facing this challenge despite being engaged with the applicant in a treating capacity during the time when he returned to Iran a decade ago. When asked to expand on, ‘the psychological elements that played a role in the applicant’s decision to travel to Iran,’ [Mr A] wrote, ‘responding to this question involves an exercise in reconstructing a psychological state from 10 years ago with little independent corroboration; my conclusions must therefore be cautious and qualified.’
Acknowledging the challenges of obtaining probative and relevant evidence from the applicant at a hearing, while noting that determining whether there are grounds for cancellation depends in large part upon the applicant’s state of mind over a decade ago, and taking into consideration that there is substantial relevant third-party independent evidence including from his long-time treating psychologist, I decided to first consider whether a favourable decision could be made on the papers as per s 425(2)(a).
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):
Section 101. Visa applications to 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.
The delegate rightly noted that by operation of s 99 of the Act, any information a non-citizen gives is taken for the purposes of s 101(b) 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.
In summary, the applicant’s written claims in his application form of fearing harm in Iran, are that two men who were in the security services raped him when he was [age] years old. He told his brother who confronted them but then his brother was maltreated such that he eventually suffered a serious mental illness. Thirty years later, during the 2009 protests, the applicant saw the same two men who had raped him. He rallied the crowd, and the crowd attacked them. This attack was filmed and uploaded onto the internet by a friend of his. The two men were not claimed to have been seriously harmed but they had their equipment taken from them. [Mr B] was subsequently arrested. The applicant’s mother, through her contacts learned that her son, was wanted by the authorities as well. The response was that the applicant should leave Iran. Since then, one of the men who had raped him and who had been attacked by the protestors is claimed to have raided his parent’s house four times in search of the applicant.
Following a detailed explanation of these events, the applicant wrote in the same statement of claims:
22. I cannot go back to Iran because I know that with my past history I will be killed.
23. I am against the Evil Islamic Regime of Iran.
24. Since this regime came to power I have lost everything. I was raped, shame put on me and my family and because of this shame I couldn’t get married.
25. I hate the Islamic Republic of Iran. This regime raped me when I was only 9 years old. I was tortured and burned for no reason. And now I am wanted by them because I participated on antiregime’s protest.
26. I am a strong believer of freedom and democracy. I had every right to protest against this regime.
27. If I return to Iran I am sure that I will be arrested, interrogated, tortured and eventually be executed.
I note that in the applicant’s statutory declaration dated 27 April 2023 he claims that it was when he was [age] years old. That there is a difference, is of concern but nevertheless, noting his previous and ongoing mental health condition and the nature of childhood trauma I accept that he was raped when he was a child as described. Importantly, though, the decision does not turn on when or whether this occurred, as what is at the heart of the considerations is whether he has had some trauma such that it has affected his mental health that in turn affected his judgement circa 2012/2013.
The Notice of Intention to Consider Cancellation (NOICC) provided a reworded summary of his claims. The Minister’s delegate then went on to detail the information that led to the grounds of cancellation, namely, the applicant’s return to Iran.
Evidence that is not in dispute was listed in the NOICC showing that the applicant departed Australia [in] March 2013 and returned [in] May 2013. It is not in dispute that the applicant returned to Iran during this period. He entered Iran on an Iranian passport issued to him in Canberra. It is relevant to note that the applicant first arrived in Australia [in] October 2010 having left Iran [in] September 2010.
The delegate determined that the applicant had provided incorrect information in his protection visa application on the basis that he claimed to fear returning to Iran as state authorities would kill him and yet, of concern to the delegate, was that he engaged with state authorities to obtain an Iranian passport and then entered Iran passing through immigration using a passport in his name.
The delegate made this finding in conjunction with country information that is relevant in understanding and considering whether the grounds for cancellation are made out.
A report by the United Kingdom (UK) Home Office dated October 2012, shortly before you travelled to Iran, indicates if you were of adverse interest to the Iranian authorities this would likely have prevented you being issued a new Iranian passport, or from being allowed to leave Iran once you had entered:
“Checks are carried out, at the time of passport issue, in relation to any other outstanding security issues, such as outstanding warrants, which could prevent either a male or a female from being issued the passport. This takes place at the time of the general passport application rather than when issuing any particular exit stamp. This is done using a specialised database, which is also the same system used at the airport when conducting the final verification of eligibility to travel at the security checkpoint.”
A later report by the UK Home Office dated 1 December 20173 expands on this, indicating passengers entering and leaving Iran are checked against two watchlists issued by the Ministry of Intelligence and Security and the Revolutionary guard, with those flagged either being arrested on the spot, allowed to pass through and surveilled, or have their passports confiscated on condition they attend interrogation. I consider if you were of adverse interest to the Iranian authorities as claimed, you would have been detected on your entry and/or exit, and would not have been able to freely enter and depart Iran on those trips.
As a result, the delegate determined that the applicant had provided incorrect answers to the following questions in his protection visa application form:
Question 43 Why did you leave that country?
Question 45 What do you fear may happen to you if you go back to that country?
Question 46 Who do you think may harm/mistreat you if you go back?
Question 47 Why do you think this will happen to you if you go back?
Question 48 Do you think the authorities of that country can and will protect you if you go back?
Specifically, the delegate found:
I consider your answers are incorrect because:
You voluntarily chose to go through an involved process engaging with the Iranian authorities, to apply for an Iranian passport when this was not necessary, as you already had an Australian travel document which would have allowed you to enter and exit Iran.
You were able to obtain an Iranian passport under the same identity you claim you were known by in Iran and of interest to the Iranian authorities, and used that passport to enter and exit Iran.
Within six and a half months of being granted a Protection visa in relation to Iran, you voluntarily chose to return to that country, and remained there for a period of over six weeks.
On your return to Australia [in] May 2013 when interviewed by a departmental officer at the airport and asked about your travel to Iran, you made no reference to having encountered any issues or harm from the Iranian authorities during that trip.
I consider these facts, in light of the country information detailed earlier, indicate at the time you provided the above answer to this question, you were not of interest to the Iranian authorities, so did not flee Iran for that reason nor genuinely fear that if you returned to Iran the authorities would arrest and kill you because of your past history.
The applicant responded to the NOICC with the following:
9.       Although I have traveled undetected to Iran on [date]/03/2013 and departed on [date]/05/2013, I still fear the Iranian authorities.
10.      I am suffering from severe depression, and I take medication and receive treatment for my mental health.
11.      In early 2013, I have received news that my sister [Ms C] who I was very close to and was indeed like my second mother, has been diagnosed with cancer. I was devastated by the news and felt if I miss the chance to say goodbye, I would never forgive myself.
12.      I have a history of attempting suicide. I was dealing with severe depression when I was taking medication when I heard the news. I was not in my right mind when I decided to find a way to travel to Iran. My sister has died of cancer on [date]/11/2019.
13.      I knew that I couldn't enter Iran without putting my life at risk; therefore, I contacted my brother in Iran and asked him to help me. My brother found a smuggler who could help me enter Iran undetected; however, I could only stay for two months. The smuggler requested my details and ten Million Toman for this service and I agreed.
14.      I was homesick, depressed, and worried about my sister; therefore, I risked my life and decided to follow the instruction provided to me, such as ticket dates and entry gates.
15.      I have applied for an Iranian passport, and I obtained one [in] 2013. I do not know if the smuggler had any role with the Passport I have obtained or just assisted me in entering the country.
16.      My friends helped me to fill the relevant form for the Passport. In the passport documents, I did not declare that I had sought asylum in Australia. I only mentioned that I came here for work because I knew if they discover that I sought asylum, they will check my history or notify the authorities in Iran.
17.      I purchased a ticket [in] February 2013 to travel to Iran. I followed the instructions and entered Iran undetected. I was not asked to provide a fingerprint or any bio/facial data upon entry to Iran. My Passport was checked, and the officer who viewed my Passport didn't ask me anything and let me pass the gate.
The applicant provided further submissions to the Tribunal. The applicant argued in these submissions that the delegate did not consider his mental health at the time of his return to Iran nor at the time when he was asked to provide a response to the NOICC. He said that he was not mentally well at the time of his response and as such that the applicant made ‘mistakes in explaining my situation.’ Regarding his mental health since he arrived to Australia, he wrote:
2. I have attempted suicide twice, was admitted to a mental hospital in Australia, and stayed for approximately two months each time in Perth and Melbourne. I cut my wrist open and took sleeping pills to end my life. After being released, I developed this habit of hitting my head when anxious and stressed. I have been diagnosed with depression and anxiety for over ten years.
3. In May 2022, my suicidal thoughts surfaced. I received medical treatment for my mental health, including heavy numbing medication and antidepressants. My bedwetting had increased before going to Iran, and it has worsened since my visa got cancelled.
4. I have previously been under the observation of [Health service provider 1] and [Organisation 1]. My complex mental health history is attached to this statement.
…
7. My long-term memory has been affected in the past couple of years. I have a hard time recalling details. I cannot explain the incidents that occurred in my life in correct order. I struggle with focusing on one task.
The applicant’s claims of struggling with his mental health are supported by way of contemporaneous records. While [in] Immigration Detention Centre there is a record of his health that explains:
[The applicant] presented on the 16th February very agitated, restless, crying, depressed, and demoralised. He stated he cannot cope within [the] detention centre. He stated that he worries about his intellectually disabled brother who allegedly displays highly physically abusive challenging behaviour towards his mother, and they are living in very dangerous circumstances in Iran. [The applicant] presents with symptoms of Complex Chronic Post Traumatic Stress Disorder. He has severe anxiety and is scared that he may not cope any longer; that he will have a mental breakdown and that he will harm himself badly as his mind is flooded with anxious fearful thoughts about his mother. During the session he spoke intensely; his speech was pressured and continuously pinched himself on the arm, at one stage he slapped himself on the head, as he was crying and pleading "please get me out of there, I am not coping there; I cannot be there any longer". I empathised with him, aimed to calm him down, reassured him that I will do my best to support him. [The applicant] is suffering considerably in the detention situation. His disempowerment within his restrictive environment is a daily trigger of past traumatic events he experienced in Iran during which he felt completely disempowered and psychologically dissociated. [The applicant] is retraumatised on a daily basis as he feels immense guilt of not being able to help his mother and the restrictive disempowering circumstances together with powerful feelings of guilt which triggers traumatic memories of his dangerous environment in Iran and his highly abusive severely traumatic relationship with his father during his childhood. [The applicant] has to be moved to Community Detention as a matter of priority. His complicated trauma history is such that his current circumstances are adversely affecting his very fragile mental health. He stated that the medication he was prescribed with, by [named doctor], has no effect on him what so ever. It seems the medication needs to be reviewed as a matter of priority.
A report was written by [Mr A], a highly regarded Clinical Psychologist, following three interviews with the applicant on the 17, 21 and 24 March 2023. It is important to note that [Mr A] has hand intermittent engagement in a professional capacity with the applicant since October 2011.
From [Mr A]’s 2011 notes, the relevant sections to this case include:
[The applicant] said he found immigration detention difficult from the outset, feeling closed in and suffocated. He wasn’t active even on arrival, not attending classes or sport. He said though that he initially had some optimism but lost this after his RSA rejection. He said he became increasingly dejected and was consumed by worries about his mother and brother and how they were coping without him…
At the first interview he was oriented and spoke fluently in Farsi. He was able with apparent effort to focus on the interview and provided relevant but brief responses. There was no formal thought disorder apparent. His expression tended to be fixed and he looked sad and downcast, and there was virtually no range of affect. There was some psycho motor retardation. He reported auditory hallucinations which were usually internal, which occurred daily particularly when he was feeling upset, and consisted of his father making humiliating remarks, his mother speaking to him, or his brother yelling slogans associated with the Iran Iraq war. He said that when he hears these he runs from the room. He had partial insight in that he understood his family were not present and that the voices didn’t correspond with his family actually conversing with him. He said he was sleeping about five hours with the assistance of a hypnotic and was eating reasonably. He was not involved in any purposeful recreational or educational activity and had little to do with other detainees.
This clinical picture has largely persisted over the interviews. There has been fluctuating but ongoing presence of thoughts to self harm by overdose or hitting his head against a window. The content of the auditory hallucinations has remained centred on his father making humiliating comments about him and his brother yelling slogans or blaming him for leaving Iran. [The applicant] has spoken to his mother by telephone who reassures him that he has made the right decision, but this does not allay his anxieties. At times in the interviews he became very distressed, crying and slapping his head with some force. He reported panic like symptoms particularly when thinking about his mother and brother. With respect to post traumatic symptoms, painful thoughts about his sexual assault in childhood and his imprisonment during military service are present daily. In the last interview he said that following his admission to [named] Clinic and changes to his medication he was hallucinating less often, no longer daily, but that his other problems persisted. He was sleeping about three hours, he suffered daily palpitations, and he again spoke about the distress he feels about leaving his mother and brother to fend for themselves.
…
He was admitted to a psychiatric hospital in mid 2011 in Perth after he took an overdose and cut his left wrist. He took a further overdose while he was in hospital. He said his intention was to die. He remained in hospital for 15 days. It appears that he has experienced suicidal intent of fluctuating intensity since then. He has suffered depression, anxiety symptoms and auditory hallucinations consisting of his brother or father yelling at him.
At the time of referral to [Organisation 1] in October 2011 he was receiving anti depressant, anti psychotic and hypnotic medication.
In mid December 2011 he was admitted to [a] Hospital for two days. He was admitted to [named] Clinic from the 30.12.2010 until 5.1.2012 where he was noted to suffer from depression, panic attacks, the effects of a traumatic childhood, and suicidal thoughts. He was provided with anti psychotic, anti depressant and anxiolytic medications. The opinion was that he suffered from depression and an anxiety disorder rather than a psychotic illness.

Key extracts from [Mr A]’s 2023 report are:
a.“In late 2012 or early 2013 [the applicant] learnt that his sister had been diagnosed with [cancer]. He told me that his sister pleaded with him to return because the prognosis was poor. [The applicant] told me that he knew he had to return despite the risks. [The applicant] said he was not well at the time, and wanted to see his mother and brother whom he was missing intensely, but that the primary motivation for the trip was to be with his sister. He said his wish to see his sister overrode anxieties he had about returning to Iran.
b.“[The applicant] said he was anxious about authorities learning of his presence in Iran; he stayed indoors during the day; he sometimes shopped in the evening. He didn’t meet with family friends. While anxious, [the applicant] said his overriding preoccupation was with his sister.”
c.[Mr A] was specifically asked to respond to the ‘psychological elements that played a role in the applicant’s decision to travel to Iran.’ His response was:
[87] Responding to this question involves an exercise in reconstructing a psychological state from 10 years ago with little independent corroboration; my conclusions must therefore be cautious and qualified.
With regard to independent evidence, I have the following:
- The finding made in the visa cancellation decision that [the applicant] carefully planned his return to Iran over a number of months and in doing so engaged with the Iranian authorities. In Iran he had contact with authorities when entering and leaving the country and when registering his marriage.
- My assessment of [the applicant] while in immigration detention about 15 months prior to his return to Iran which observed that:
‘He said he became increasingly dejected and was consumed by worries about his mother and brother and how they were coping without him’; that he was experiencing the auditory hallucinations of ‘his brother yelling slogans or blaming him for leaving Iran’ and that regarding leaving Iran, ‘[the applicant] has spoken to his mother by telephone who reassures him that he has made the right decision, but this does not allay his anxieties’.
‘[H]e has not [been] able to occupy himself productively in detention. This has left him prey to intense worries and conflict regarding leaving his mother and brother’
‘For about seven to eight months he has suffered from a major depression, panic symptoms, distressing memories of childhood and adult trauma, and auditory hallucinations which appear to be secondary to his depression and emerge out of intense conflict in relation to his family circumstances’.
- An assessment by a treating clinician on 16 February 201222 that found that [the applicant] ‘worries about his intellectually disabled brother who allegedly displays highly physically abusive challenging behaviour towards his mother, and they are living in very dangerous circumstances in Iran…he feels immense guilt of not being able to help his mother’. He was diagnosed with symptoms of ‘complex chronic posttraumatic stress disorder’.
- As described, subsequent assessments of [the applicant] indicating that his depression and posttraumatic condition have been unremitting over the past ten years.
[88] I believe on the basis of this evidence it can be reasonably concluded:
- that prior to his departure [the applicant] knew that making arrangements to return to Iran and entering and departing from the country would bring him to the attention of the Iranian authorities, and, if indeed they had an adverse interest in him, that that could have led him to coming to harm;
- that he suffered a severe mental illness at the time of his decision to return to Iran. I do not believe, however, as a consequence of his mental state at the time, that he was deprived of his ability to understand what his return to Iran involved; it is likely, however, that the decision was made in a state of distress and intense labile emotion;
- that the decision to return to Iran was influenced by guilt and conflict he had experienced since arriving in Australia about leaving his family. Assuming that his sister was ill at the time, it is likely that when he learnt of her illness his distress about his separation from his family was heightened further. It appears that [the applicant] had a very strong, almost filial, attachment to his sister which may have been forged in the context of family violence and lack of parental nurturance when he was a child.
[89] Accordingly, on this question my opinion is as follows.
[90] It is a matter of ordinary human experience that people are capable of putting aside personal risk, even threat to life, to pursue something of great value to them. In the refugee context it is not uncommon that a person suffering persecution delays leaving the country or never leaves because of ties to family or a cause. [The applicant]'s return to Iran may indicate he had no fears for his safety; conversely, he may have haboured strong fear but nonetheless decided the risk was less important to him than the opportunity to visit his ailing sister, and his mother and brother. It is possible that the news that his sister may have a terminal illness magnified his pre-existing guilt about abandoning his family and compelled him to return. Based on assessments made about a year prior to his return to Iran and his subsequent mental state, it is likely he made the decision at a time when he was very mentally unwell, and possibly not able to weigh the options in a rational and composed way. I set out these possibilities for consideration with the important caveat that I do not have the ability to determine what [the applicant]'s exact decision-making process was prior to his return to Iran; and I cannot distinguish between the possibilities that he returned despite fear of the authorities or without any substantial fear.
Regarding the applicant’s response to the specific issue of whether he had provided incorrect information, he wrote:
20. I never exaggerated my political profile. I have never claimed that I was a political activist. I never claimed that the regime blacklisted me. I have been against the Iranian regime throughout my life. I showed my opposition to the regime, such demanding change and freedom by attending protests in 2009. I was afraid of getting arrested, and that is why I fled. I was unwilling to remain there and possibly get arrested and tortured. In my protection claims, I declared that I believed I was a person of interest when I fled, mainly because my friend who took photos was arrested in addition to other information I had.
21. I left Iran legally with my passport, and the officer who assessed my protection claims was aware of how I left Iran.
22. Many people who attended protests against the regime and felt threatened were able to leave Iran legally, and I was one of them. I have never claimed to be blacklisted by the regime.
23. I have a complicated relationship with my brother. My brother is not mentally well, but I wanted to believe him when he talked about finding someone to help me return to Iran. I trusted my brother, who went to prison for confronting those who raped me. My brother's friend told him the smuggler had connections operating at the airport and was well-connected. However, I cannot verify whether there was a smuggler or anything was done. All I knew was I could enter the country undetected, passing through a specific gate and assuming they would let me in. I paid my brother 10,000 toman after arriving in Iran, which was what I thought was the assistance in returning through the Imam Khomeini airport. This would have worth about US$3,000.
24. I wanted to see my sick sister, mother, brother, the rest of my family. It might sound like an easy decision for many people to stay put even if their family members are sick back home, but for me, it was not. I was very emotional and depressed, therefore, decided to go back for a visit. My family could never come to visit me.
…
27. My brother told me the smuggler gave him a date for my entry and described the gate I had to use to enter the country. I followed my brother's instructions, and nothing happened to me. I was not asked to provide biometrics at the airport.
28. I was shaking when I got on the flight and was not feeling good during the flight. When I arrived, I had a panic attack. I went to the toilet and hid myself. My friend [Mr B], was travelling with me and he assisted me.
29. I was in Iran from [date] March 2013 to [date] May 2013. I mostly spent time with my sister in Tehran and did not travel to any other cities.
Considerations of whether there was non-compliance
At the heart of the issue to be considered is whether the applicant’s return to Iran and his engagement with the Iranian embassy in Canberra undermines the veracity of his original claims such that it leads me to reach a real state of satisfaction that the evidence he had provided in his written statement was incorrect.
The concept of a real state of satisfaction was explained in Zhao v MIMA, in which the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[1]
While that case was concerned with cancellation under s.119, the Court’s comments are equally applicable to s.109 cancellation.
[1] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]
There are four relevant considerations that I will turn my mind to individually.
a.The applicant had considerable documented mental health challenges at the time of his decision to travel back to Iran that may have impaired his ability to balance any risk that may have existed versus the benefit he sought from travelling back to Iran
b.He claimed to have had a compelling reason to travel that outweighed any risk he claims existed to his life
c.He was afraid of returning to Iran in large part because of a feared animosity arising from his actions against two security officers and not necessarily the entire security apparatus
d.The applicant when inside Iran kept a low profile
Mental health challenges
It is important to consider whether the applicant had the capacity and was in a state of mind such that he would be able to fully understand the risks that he would be undertaking by returning to Iran if his claimed fears were true.
While in immigration detention the applicant was diagnosed with Complex Chronic Post Traumatic Stress Disorder. This differs from PTSD in that, ‘People with complex PTSD tend to experience the core symptoms of PTSD as well as disturbances in their thoughts, behaviours and emotions including,’ relevant to the applicant, it is common for someone with complex PTSD to, ‘to lose control of their emotions, such as in explosive anger or persistent sadness.’[2] In addition, the applicant was diagnosed with severe anxiety.
[2] >
According to the evidence reference earlier, during the period leading up to the applicant’s decision to travel to Iran he was admitted to a psychiatric hospital in mid-2011 ‘after he took an overdose and cut his left wrist.’ While at the hospital, ‘he took a further overdose…He said his intention was to die.’ During this time,he was diagnosed as suffering from depression, anxiety symptoms and auditory hallucinations consisting of his brother or father yelling at him.
[Mr A] wrote in his report that at the time of the applicant’s referral to [Organisation 1] in October 2011 he was receiving anti-depressants, anti-psychotics and hypnotic medication. According to [Mr A] he was once again admitted to hospital and then to [named] Clinic, [a] private mental health service.[3]
[3] [Source redacted]
Within this complex psychological context, the applicant was confronted with the news that his sister had [cancer] and that she wanted him to return, a claim that is supported by evidence discussed further below. The applicant was then confronted with the choice of deciding whether to return to Iran or not.
To suggest that any decision made to return would be irrational if there was a risk to his life and therefore doing so undermines past claims of fearing harm is simply wrong. As [Mr A] rightly notes:
It is a matter of ordinary human experience that people are capable of putting aside personal risk, even threat to life, to pursue something of great value to them. In the refugee context it is not uncommon that a person suffering persecution delays leaving the country or never leaves because of ties to family or a cause.
Compounding such an error of reasoning by the delegate is not considering the persons’ mental state and their capacity to make sound judgements.
It is clear from the material available to this Tribunal that the applicant was facing severe mental health challenges. It is questionable whether being in such a state could allow him to make full reasoned decisions. As [Mr A] notes, ‘it is likely he made the decision [to return] at a time when he was very mentally unwell, and possibly not able to weigh the options in a rational and composed way.’ The caveat that [Mr A] uses, ‘possibly’, arises from the difficulty of determining the applicant’s decision-making process.
As [Mr A] noted, one cannot ‘distinguish between the possibilities that he returned despite fear of the authorities or without any substantial fear.’
He also notes that, ‘I do not believe, however, as a consequence of his mental state at the time, that he was deprived of his ability to understand what his return to Iran involved; it is likely, however, that the decision was made in a state of distress and intense labile emotion.’
This view aligns with the diagnosis of complex PTSD in that the applicant is unable to control his emotions at times and may act impulsively.
Separately, even was he able to reason unencumbered by mental health burdens, that the applicant made at least two attempts on his life, and possibly more is suggestive of a state of mind that would not care if a real chance of serious harm awaited him upon return to his home country.
As a result of there being substantial and multifaceted mental health issues playing a role in the applicant’s life at the time, including potentially influencing not only his decision-making ability but potentially weighing in favour of taking a risk that would end his life, weighs against there being sufficient evidence to be able to reach a real state of satisfaction that his decision to return to Iran and engage with the Iranian embassy indicates that his claims in his application form were false.
Compelling need
The applicant claimed that his sister had [cancer] and that when he learned of this, she had expressed a desire to him for him to return to Iran to see her. He wrote in his response to the NOICC, ‘I was devastated by the news and felt if I miss the chance to say goodbye, I would never forgive myself.’
The applicant provided a translation of a burial permit dated [in] November 2019 for [Ms C], who he claimed was his sister. The particulars of the document include the cause of death which was listed as [deleted]. There is no mention of [cancer] but this is not a reason to doubt that in 2013 she did not have cancer.
In considering the news from his family, the applicant wrote in his response to the NOICC, ‘I was homesick, depressed, and worried about my sister; therefore I risked my life.’ This is verified by [Mr A]’s contemporaneous notes from 15 months prior to the applicant’s return to Iran in which he recorded that the applicant, ‘said he became increasingly dejected and was consumed by worries about his mother and brother and how they were coping without him’.
As noted at [37] by [Mr A], ‘people are capable of putting aside personal risk, even threat to life, to pursue something of great value to them.’ In this instance, the third party contemporaneous evidence alongside the applicant’s own evidence suggests that he had a compelling reason to visit Iran and to weigh the competing factors of his sense of obligation and desire to see his family against his belief that he faced a threat to his life.
That the applicant had a compelling reason to return weighs against there being sufficient evidence to be able to reach a real state of satisfaction that his return to Iran and his engagement with the embassy to obtain a passport is indicative of the claims he had made in his application being false.
Source of fears
The applicant noted in his statutory declaration dated 27 April 2023 that he had not claimed that he was ever on any watchlist that would have triggered his arrest as he departed Tehran’s international airport. I accept this to be true. Instead, at the heart of the applicant’s claims was a personal vendetta that appears to have developed between him and two officials within the state security apparatus. These individuals, whom he claims raped him, and he in turn instigated a mob attack upon them, may have access to the state security apparatus in their roles, but it is not clear that they acted such that the state had incorporated any claims against the applicant into the official system.
The only indication from the security apparatus that there was some imminent harm to the applicant was information conveyed to the applicant’s mother through the wife of an official. The official did not say what he knew or where the information came from. That the applicant was not stopped at the airport when he first left and upon arrival and departure in 2013, suggests with certainty that the security services operating at the airport did not have him on their watchlists.
This may mean that he had provided false information about his life being at risk. Or, alternatively, it could mean that he was not of a high enough value to be put onto a watchlist, that the risk to the applicant identified by his mother’s informant was not official but extra-judicial or that the authorities who wanted him did not have an existing system to share their information with the security structures at the airport. These are possibilities that arise only on the assumption that the claims of the applicant’s brother of organising a smuggler to arrange for his return were not true and that the applicant’s brother had not, in fact, done anything, as the applicant indicated may have been possible. There are many possibilities for why the applicant may have been warned that his life was in danger and yet when he passed through security three times he was not detained. This weighs against there being sufficient evidence to be able to reach a real state of satisfaction that the applicant’s return and his engagement with the Iranian embassy is indicative of the applicant having provided incorrect information.
Low profile
Accepting that there may be many reasons for why the applicant was not caught passing through immigration leads to enquiring as to why he was not caught while living in the community. It was approximately three years since the applicant had left Iran and so it is fair to assume that he would have been remembered on the streets in his community.
The applicant claims that he kept a low profile while in Iran. I accept that this was the case. Nevertheless, it would be reasonable to assume that someone outside of his family saw him at some stage.
It is possible that word would have got around and had his claims been true then the two men who he claims had an interest in him would have found out and acted against him. But it is also possible that those he crossed paths with didn’t pass on to others that they saw him or those they did pass on the information to others didn’t know the two men in security. That the applicant remained in Iran for six weeks without detection, rightly arouses concern, but the applicant’s explanation and the profile of the feared persecutors, two individuals rather than, for example, societal persecution based upon an easily identifiable trait, is such that I cannot reach a real state of satisfaction that the applicant’s claims in his application form were incorrect.

For the reason that the circumstances of the applicant’s return do not lead me to reach a real state of satisfaction that the applicant had provided incorrect information in his application, when considering the factors discussed above from [30] onwards, both individually and cumulatively, I find 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.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, 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.
Denis Dragovic
Deputy President

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.

[2023] AATA 2681

15 May 2023

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