2119223 (Refugee)

Case [2023] AATA 2681

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

  2. The delegate cancelled the visa on the basis that 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.

  3. 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.

  4. The applicant was represented in relation to the review.

  5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    PROCEDURAL MATTERS

  6. The Tribunal was put on notice of the applicant’s severe mental health challenges.

  7. 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…

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AGLC
2119223 (Refugee) [2023] AATA 2681
Case
[2023] AATA 2681
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a protection visa holder against the cancellation of his visa. The Minister's delegate had cancelled the visa on the ground that the applicant had provided incorrect information in his visa application, specifically contravening section 101(b) of the Migration Act 1958 (Cth) by giving incorrect answers. The applicant claimed to fear persecution in Iran due to a personal vendetta with two security officials who had allegedly raped him years prior, and whom he later incited a crowd to attack. The delegate formed the view that the applicant's subsequent voluntary return to Iran and engagement with Iranian authorities, including obtaining a passport from the Iranian embassy, demonstrated that his claims of fear were false.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect answers in his visa application, and if so, whether the visa should be cancelled. This involved assessing whether the applicant's actions upon returning to Iran were indicative of his initial claims of fear being untrue, or whether other factors explained his conduct. The Tribunal also considered whether the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and whether the delegate had properly engaged the cancellation power.

The Tribunal found that the notice issued under section 107 complied with statutory requirements. However, it concluded that there was no non-compliance with section 101(b) as particularised in the notice. The Tribunal gave significant weight to substantial independent evidence regarding the applicant's severe mental health challenges, including diagnoses of Complex Chronic Post Traumatic Stress Disorder and severe anxiety, which predated and continued after his return to Iran. It was noted that the applicant had made suicide attempts and was likely in a state of distress and labile emotion when making the decision to return, potentially impairing his capacity for rational judgment. Furthermore, the Tribunal considered the compelling reason for his return – his sister's diagnosis with cancer – as a factor that could lead a person to set aside personal risk. The Tribunal found that the circumstances of the applicant's return, including his low profile in Iran and the nature of the alleged persecutors, did not provide sufficient satisfaction that his original claims were false.

Consequently, the Tribunal set aside the decision under review. It substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa, finding that the discretionary power to cancel the visa did not arise due to the absence of proven non-compliance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 needThe 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 fearsThe 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 profileAccepting 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.DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Denis DragovicDeputy PresidentATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

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.