2201433 (Migration)
[2022] AATA 3254
•9 August 2022
2201433 (Migration) [2022] AATA 3254 (9 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Anna Joyce Ryburn
CASE NUMBER: 2201433
DEPUTY PRESIDENT: Antoinette Younes
DATE:9 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 (155) (Five Year Resident Return) visa.
Statement made on 09 August 2022 at 2:05pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in protection visa application – name, citizenship and age – not undocumented, stateless Faili Kurd but Iranian citizen, older than claimed – discretion to cancel visa – advised by boat travellers and people smuggler to provide incorrect answers – correct answers and documents provided as part of citizenship application process – elapse of time – study, self-employment and integration into community – conversion to Christianity – non-refoulement – late claim of being witness to financial corruption and fraud by employer not accepted – conversion accepted as genuine, despite church activity limited by work – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 100, 101, 107, 107A, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
Singh v MIBP [2020] FCA 783
WKMZ v MICMSMA [2021] FCAFC 55Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the delegate was satisfied that the applicant did not comply with s 101 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 applicant appeared before the Tribunal on 20 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses. The Tribunal’s hearing was conducted with the assistance of an interpreter.
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.
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.
Section 375A Certificate
During the hearing, the Tribunal advised the applicant of the existence of a s 375A Certificate. The Tribunal advised the applicant that a Certificate dated 11 February 2022 has been revoked and a new Certificate dated 29 June 2022 has been issued.
Under s 375A, the Secretary of the Department of Home Affairs (Department) may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certification is that the Tribunal is prohibited from disclosing the document and/or information in it to the applicant. In Singh v MIBP[1], the Federal Court found that where the obligations in ss 359A and 375A come into conflict, s 375A is the leading provision but that the aims of both ss 375A and 359A can usually be served without conflict.
[1] Singh v MIBP [2020] FCA 783 at [56].
The grounds identified in the Certificate dated 29 June 2022 is that disclosure:
…would be contrary to the public interest because it would disclose lawful methods of preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal advised the applicant that the information contained in the material subject to the Certificate relates to internal methods of investigation. The Tribunal indicated that the Tribunal considered the Certificate to be valid for the reasons outlined in the Certificate.
The applicant was invited but did not make any submissions in relation to the Tribunal’s assessment concerning the validity of the Certificate.
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 of the Act.
Relevant law
Section 101 provides:
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 Act does not define the term “incorrect”. However, s 100 provides that 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”.
Section 98 provides:
Completion 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.
Section 99 provides:
Information 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.
Section 107A provides:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b)if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
By way of background, the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that [in] December 2010, the applicant arrived in Australia as an unauthorised maritime arrival (UMA) claiming to be an undocumented, stateless Faili Kurd, born in Iran. On 29 December 2010, he attended an entry interview with a Departmental officer with the assistance of an interpreter in the Farsi language. During that interview, the applicant claimed to be [the applicant], born in Iran on [Date 1], stateless, a Faili Kurd and of the Shia faith. He claimed not to have a passport, birth certificate, ID card or a driver’s license.
On the 14 February 2011, the applicant participated with the assistance of a legal representative and an interpreter in an interview with the Department. In a written statement dated 14 February 2010, the applicant claimed that:
i) He is a stateless Faili Kurd of the Christian faith, fearing persecution in Iran. He was born in Tabriz, Iran on [Date 1]. He fears that if forced to return to Iran, he would be at risk of harm physically and psychologically by the Basij due to being a Faili Kurd and of the Christian faith.
ii) His father was born in Baghdad, Iraq. In 1980, when his father was about [age] years old, the family was expelled from Iraq. That was during the time that Saddam Hussein was in power. Saddam Hussein expelled all Shia Muslims and Faili Kurds from Iraq and forced them to go to Iran. They were issued with a Green card by the Iranian authorities. This practice changed in the last few years when White cards are being issued. The card, either Green or White, is a document that recognises that one has been expelled from Iraq and forced to come to Iran. The card does not give any substantive rights. He was issued with a White card when he was born.
iii) As a Faili Kurd, he lived in fear of being harassed and threatened by the Basij in Iran. The first time he faced problems with the Basij was in about August/September 2007. Around that time, he fell in love with [Ms A] but he did not know at the time that two of her brothers were members of the Basij. The brothers found out that he was dating [Ms A] and they physically harmed both of them. He was taken by the Basij who warned him not to have any contact with [Ms A] again, otherwise he would be killed.
iv) The Basij hassled Faili Kurds and extorted money from them. They visited him every two to three months abusing and threatening him to have him deported unless he paid them money. In about July/August 2009, the Basij came to his house and arrested him and as he did not pay a bribe, they took him to an underground cell where he was physically abused. They said he was a foreigner who did not belong to Iran. They also accused him of not being a Muslim because he did not pray when he was there. He had to pay a bribe. He was harassed sometimes when he was at work at the [workplace]. They threatened to break the windows when his boss was out. He was scared because he did not want to be blamed for the broken window, so he made sure that he paid them to make them go away. Whenever he was approached by them subsequently, he paid money.
v) He was born into a family of Shia Muslims and his father was a dedicated Muslim. That was the reason for him being expelled from Iraq. Over time, when his father began to see all the “upheavals and injustices that took place in the name of Islam”, he lost his faith. About a year prior to his death in 1989, he renounced the Muslim faith and no longer prayed or went to the mosque as often.
vi) Living in Iran made him see all the injustices that were being inflicted in the name of Islam. In late 2009, while travelling on a bus to work, he sat next to a Christian by chance. The Christian told him about Christianity and the values it promoted. He became interested and the Christian gave him a Bible. In Iran, he never practised Christianity openly. He was too afraid to go to a church. However, he did pray privately. Since coming to Christmas Island, he has been able to see the kindness of the Christian faith. He began to pray every night. He has not been formally baptised, but he has put his name down to be baptised in Christmas Island.
vii) He left Iran as he was fed up paying the Basij about 70% of his earnings as well as being constantly threatened with harassment, torture and deportation. He also felt he was living in torment because he could not openly express his interest and belief in Christianity. He felt he was living a lie and he fears returning to Iran because of his recent exploration of Christianity. He fears that he would continue to face harassment, torture, and degradation at the hands of the Basij.
viii) His father was expelled from Iraq a long time ago and he has no family ties in Iraq. He does not know anyone in Iraq. He cannot speak Arabic and has no identity in Iraq. His mother told him that in the past his father had property in Iraq before he was expelled. A few years after being expelled, he returned to Iraq to try to reclaim the property but as there was no paperwork, his father was unable to reclaim the property.
On 18 February 2011, the applicant attended an RSA interview with a Departmental officer. The applicant reiterated his claims of being undocumented, a stateless Faili Kurd born in Iran, and of the Christian faith. He claimed to fear harassment, physical and psychological torture, and degradation in Iran.
Based on the above claims, on 3 March 2011, the applicant was found to be a person who engaged Australia’s protection obligations and on 8 July 2011, he applied for a Protection (subclass 866) visa.
The delegate’s decision record indicates that on 12 July 2011, the applicant completed and signed Part B and Part C of the application form, ‘Application for Protection (Class XA) visa – Form 866’. In responses to questions 1, 7, 8, 12, 13, 19, 20, 21, 23, 30, 41, 42, 43, 44, 45, 50 and of Part C of Form 866, the applicant gave his full name as [the applicant], his date of birth as [Date 1], he was born in Iran, he is a stateless Faili Kurd, he does not have nationality or citizenship of any country, he was expelled from Iraq, he travelled on a fake passport for which he paid a smuggler, but he does not know its whereabouts, he is seeking protection so that he does not have to return to Iraq or Iran. The applicant referred to the statement attached to the RSA in response to questions about his reasons for not wanting to return to Iran or Iraq.
The applicant was granted the Protection (subclass 866) visa on 14 July 2011.
Events subsequent to the visa grant
The delegate’s decision record indicates that on 11 August 2015, the applicant lodged an application for Australian Citizenship by conferral. In that application, he identified himself as [the applicant], born on [Date 1]. He indicated that he does not hold or has ever held citizenship of any other country and that he never held any national identity documents. On 12 March 2020, as part of the citizenship application process, the applicant was requested to provide identity documents. In response, the applicant provided a Statutory Declaration dated 6 July 2020 in which he indicates that:
·On his way to Australia by boat to seek asylum, he obtained advice from other travellers and from the smuggler about the Australian visa process. He was advised that being a Faili Kurd would strengthen protection claims and increased the chances of a successful visa outcome. He was also told it was better to make himself younger than his real age.
·When he arrived at Christmas Island, he told the Australian authorities that he was a Faili Kurd which is not true. He is from Iran as are his parents. He told the Australian authorities that he was 5 years younger than his actual age. He was born on [Date 2] in Tehran, Iran. His name is [Real name].
·The name [the applicant] was not the name he went by when growing up or living in Iran. He adopted that name to better fit the Faili Kurd identity he created.
The applicant provided copies of Iranian identity documents including, an Iranian passport, an Iranian National identity Card, an Iranian Military Service Exemption, and an Iranian Birth Certificate Booklet.
On 24 September 2020, the application for Conferral of Australian Citizenship was refused. On review, on 27 August 2021, the AAT (differently constituted) affirmed the decision. The AAT expressed serious concerns about the applicant’s credibility.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) and Response
The applicant was granted the Subclass (155) (Five Year Resident Return) visa on 3 July 2017. In light of the above events, on 20 October 2021, the Department sent to the applicant a NOICC to which he responded on 2, 3, and 13 November 2021. In essence, in his responses to the NOICC, the applicant conceded that there has been non-compliance with s 101 of the Act. However, he continued to claim fear in returning to Iran because he believed he would be killed or significantly harmed on the grounds of being a practising Christian, for abandoning Islam and for being considered an apostate. He has a criminal record in Iran for “fraternising with a woman …” with a suspended sentence of 80 lashes for that conviction. He has breached security regulations applicable to employees of [Employer 1] by travelling to a non-Muslim western country. As an employee, he witnessed crimes of fraud and corruption. He had a hard drive in a bag which contained confidential [Employer 1] material while in [Country], but the bag was stolen. The applicant claimed that witnessing fraud and corruption at [Employer 1] was one of the main factors that led to him taking on the identity of a stateless Faili Kurd.
In support of the responses, the applicant provided:
·Statutory Declarations of the applicant dated 6 July 2020, 18 August 2020, and 12 November 2021. Among other things, the applicant claimed that he has abandoned Islam and has become a practising Christian, that he has a criminal record in Iran for fraternising with a woman and a suspended sentence of 80 lashes in association with that conviction, that he has broken the security regulations applicable to employees of [Employer 1] by travelling to a non-Muslim western nation, that he is a witness to the crimes of fraud and corruption within the [employer 1] and of senior official figures who interacted with the [employer 1], and that he had a hard drive containing confidential material about the [employer 1] and the bag was stolen in [Country].
·Statement of the applicant dated 14 February 2010.
·ASIC Current Company Extract – [Company name] – Director [the applicant].
·NSW Government [Licence] - in the name of [the applicant].
·[Institution] Certificate III in [Subject 1], 22 February 2018, in the name of [the applicant].
·NSW TAFE Diploma of [Subject 2], 8 December 2016, in the name of [the applicant].
·NSW Government [Licence], [Company name].
·Certificate of Baptism, in the name of [the applicant], referring to his baptism on 31 July 2016.
·Letter to [Real estate agent] and Lease for [Business address].
·Form 80 Personal particulars for assessment including character assessment – signed and Dated by the applicant on 6 July 2020.
·Submissions of Ms Anna Ryburn of Ryburn Solicitors dated 2 November 2021. The submissions reiterated the applicant’s acknowledgement and apologies for the provision of incorrect information. The submissions contended that the applicant’s visa should not be cancelled because, among other things, there is a real risk that the applicant would face significant harm including being killed on the basis of his conversion to Christianity, the conviction in relation to [Ms A], and membership of a particular social group of failed asylum seekers.
The delegate concluded that the ground for cancellation arises and was satisfied that the visa should be cancelled.
The Tribunal’s review
The applicant provided to the Tribunal the Statutory Declarations dated 6 July 2020 and 12 November 2021 confirming that he had provided incorrect information about his ethnicity and age. He also provided a Statutory Declaration dated 22 June 2022, in which he reiterated the statements made in those previous Statutory Declarations and indicated that:
·He worked at [Employer 1]. He referred to photographs (within the Statutory Declaration) of him working in [Employer 1] which commenced operating in [year]. [Employer 1] changed structurally and became a [employer type 1] in 2012, two years after the applicant’s leaving Iran. [Employer 1] has since been decommissioned/disbanded in or about 2020 and staff were reemployed at [Employer 2]. The assets and business of [Employer 1] were incorporated into [Employer 2]. He included copies of his card with [Employer 1] and photographs of the building within which [Employer 1] operated.
·During his employment at [Employer 1], he worked within the [named] department and his colleague [Mr C] worked within the same section. They were responsible for [details deleted]. [Mr C] worked at [Employer 1] for another two years after the applicant left. [Mr C] started his own [business] which he continues to run in Tehran.
·The hard drive which he took contained a list of clients and their [financial transactions’] information including the large sums of money [transacted] without documentation or [administrative procedure] and the “complete leniency extended to those same clients when they repeatedly [did not comply with the conditions of their financial transactions]”. When he was in [Country], he had the hard drive in his backpack together with his passport and other personal documents and effects. The backpack was placed with a pile of luggage to be transported to the boat in which asylum seekers were planning to travel on the journey to Christmas Island. The [Country] police were on the beach. He and other asylum seekers were caught and taken into immigration detention in [City].
·Subsequent to being released from immigration detention in [City], he was not able to locate or retrieve the backpack or the hard drive. When he was on the boat from [Country] to Christmas Island, he however saw one of [Employer 1]’s pens in the hands of one of the smugglers. The smuggler claimed that it was his own pen.
·He discussed with the smuggler that he had lost important material relating to his asylum case and he was advised to proceed with the Faili Kurd “fiction” because his documentary evidence was lost.
·He continues to be in danger because he was a witness to crimes of influential people. He runs a business seven days a week. He has not been able to attend church over the last six months due to his work on Sundays.
In Statutory Declarations of 24 and 28 June 2022, the applicant added to his earlier Statutory Declarations and indicated that:
· His brother had taken the applicant’s old desktop computer drive from home to a computer technician who located more photographs of the applicant at [Employer 1].
· His brother also found a report to the [employer 1]’s CEO concerning [a] communications system rollout, dated [April] 2010 which he had authored.
· His friend and colleague [Mr C] who was intending to give evidence at the AAT, on legal advice, has declined to sign a prepared statement or give evidence as that would be dangerous and not in his interest. [Mr C] told him about [a] reward offered by [Official body] concerning [Employer 2]’s financial network and sanction avoidance.
· In case of cancellation, he fears harm based on his Christian faith and being considered an apostate, fraternising with a woman, breaking [Employer 1]’s security regulations in travelling to a non-Muslim western nation, being a witness to crimes of fraud and corruption, and for being imputed with anti-regime political opinions for fleeing Iran and seeking asylum.
In submissions dated 28 June 2022, the representative confirmed that the applicant agrees he had provided incorrect answers to questions 1, 7, 19, 20, 23 – described as the ‘Faili Kurd fiction’ and parts of the responses to questions 42 and 43. The applicant apologised and corrected those answers during the citizenship application process. He does not dispute that there has been non-compliance. In terms of the discretionary factors, the representative noted that the delegate had failed to take into account the applicant’s fears of harm relating to [Employer 1], for “fraternising outside the Bounds of Marriage Relationship”, and for being a failed asylum seeker, all of which were claims before the original decision maker and the cancellation decision. The applicant considers his claims based on religion to be sufficient to enliven a finding that he is owed Australia’s protection obligations. The representative made submissions, as discussed below in relation to the discretionary factors and asserted that the applicant’s visa should not be cancelled.
The applicant provided a statement from his brother dated 23 June 2022, a copy of his brother’s birth certificate and Iranian national Smart Card, photographs of the applicant and others at “work at [Employer 1]”, letter from [Pastor D] dated 31 October 2021 noting that he has known the applicant since 20 March 2016 when the applicant visited the church and that the applicant was baptised [in] July 2016 at the church, [News source] article relating [a reward] offered by [Official body] to “individuals who provide information about the financial network of [Employer 2]”, an untranslated document, and a character reference from [Ms E] dated 13 June 2022.
In the brother’s statement of 23 June 2022, among other things, the brother referred to the applicant’s conviction in 1999 for “Fraternising Outside the Bounds of Marriage Relationship” on the basis of striking up a conversation in the park with local girls, for which the applicant received a suspended sentence of 80 lashes. The brother also referred to the applicant’s work at [Employer 1] and interest in Christianity.
FINDINGS AND REASONS
The applicant does not dispute that he has provided incorrect information in relation to his name, date of birth, and nationality.
On the evidence, the Tribunal finds that the applicant provided incorrect information in response to questions 1, 7, 12, 19, 20, 21, 23, 30, 41, 42, 43, 44, 45, 50 and of Part C of Form 866. In response to those questions, the applicant gave his name as [the applicant] instead of his correct name of [Real name]. He gave his date of birth as [Date 1] which is incorrect as he is five years older, that is his date of birth is [Date 2]. He claimed to be a stateless Faili Kurd which is incorrect because he is an Iranian national. In response to question 42 which asks why he left that country, among other things, he referred to payment of 70% of Faili Kurds’ earnings to the Basij who constantly threatened and harassed Faili Kurds. In response to question 43, he claimed that as a Faili Kurd, he lived in fear of harassment and threats by the Basij. The responses to questions 42 and 43 are incorrect because the applicant is not a Faili Kurd.
For those reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
· The correct information
The correct information is that the applicant is not a stateless Faili Kurd and that he is five years older than he had claimed. The correct information is that the applicant is an Iranian national who did not suffer any harm on the basis of his claimed statelessness or Faili Kurd origin.
The correct information is that the applicant was not threatened or harassed by the Basij due to being an undocumented Faili Kurd, or that he fears being tortured or deported from Iran for being an undocumented stateless Faili Kurd.
The correct information is that the applicant’s parents are Iranian citizens, and that the applicant’s father was not expelled from Iraq.
The Tribunal gives this aspect weight in favour of cancellation.
· The content of the genuine document (if any)
There is no issue relating to a genuine document.
The Tribunal gives this aspect neutral weight.
· Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted the protection visa based on his claims of being a stateless Faili Kurd who as a result has suffered harm in Iran and that he feared future harm on that basis. The applicant’s claims relating to Christianity were assessed by the delegate, who formed the view that the applicant’s involvement in Christianity in Iran was limited. Essentially, the delegate was satisfied that the applicant was owed Australia’s protection obligations on the basis of being a stateless Faili Kurd and not on the basis of any claims relating to Christianity.
The Tribunal is satisfied that the decision to grant the applicant the Protection visa was based wholly or partly on the incorrect information he provided in the application for a Protection visa.
The Tribunal gives this aspect weight in favour of cancellation.
· The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant claimed to be a stateless Faili Kurd who had suffered harm and would suffer harm on that basis. He also provided incorrect information about his age. In response to the NOICC and to the Tribunal, the applicant has conceded that he had fabricated the stateless Faili Kurd claims for protection, as well as the younger age. The applicant has expressed remorse and apologised. He stated that he provided the incorrect information because he feared harm on other grounds (his association with [Employer 1], Christianity) but was advised by the people smuggler to claim protection based on the younger age and stateless Faili Kurd.
In submissions to the Tribunal, the representative argued that the circumstances of non-compliance were due to the applicant’s fear of retribution at the hands of the Iranian authorities for the applicant’s divulging details of corrupt [financial transactions] to those in power and their “cronies” and due to fear of failure due to the loss of evidentiary material in [Country] which could have corroborated the applicant’s version of events.
The Tribunal views the provision of incorrect information in an application for a protection visa (or indeed any other visa) to be serious as among other things, it has the potential of undermining the migration program. Australia is a signatory to multiple international instruments such as the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, demonstrating Australia’s commitments to granting protection visas to those who are found to be owed Australia’s protection obligations. Moreover, the Act recognises the seriousness of the provision of incorrect information, by providing for cancellation of a visa in case of the provision of incorrect information. The applicant has essentially claimed that he provided incorrect information because he was advised by the smuggler, which the Tribunal finds unpersuasive.
The Tribunal gives this aspect weight in favour of cancellation.
· The present circumstances of the visa holder
The applicant is now [Age] years’ old. He is single and he has no children. He is in full-time employment in a small business that he established during the coronavirus pandemic. The applicant has lived in Australia for over 11 years. He has provided evidence confirming that and, during this time, he has completed courses in [Subjects]. He is a licensed [Occupation]. He has a reasonable command of the English language.
It is reasonable to say that the applicant has integrated well into the Australian community and that he has established strong ties within the Australian community. The Tribunal was particularly impressed with [Ms E] who gave evidence in the course of the hearing speaking highly of the applicant and the unconditional support which the applicant gave her during challenging times.
The Tribunal gives this aspect significant weight against cancellation.
· The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has been co-operative with the Department, and he responded to the NOICC within the prescribed timeframe. He has been fully engaged in the cancellation process.
The Tribunal gives this aspect weight against cancellation.
· Any other instances of non-compliance by the visa holder known to the Minister
The applicant provided incorrect information about his identity in the application for the Resident Return visa and the application for Australian Citizenship by Conferral.
The Tribunal observes that the applicant did not correct the record until July 2020 when he was requested to provide identity documents in relation to his Citizenship application. He explained his fear and that he obtained legal advice. As that is privileged, it is inappropriate for the Tribunal to question the applicant about the exact nature of the advice.
The Tribunal is not critical of the fact that the applicant disclosed the correct information on legal advice. One might suggest that the applicant should have corrected the record earlier and the Tribunal does see merit in that view, but the fact remains he did disclose voluntarily and expressed apologies. He obtained legal advice as he is entitled to and he acted upon that advice.
Under the circumstances, the Tribunal gives this aspect neutral weight.
· The time that has elapsed since the non-compliance
The non-compliance occurred in 2011 when the applicant lodged the application for the protection visa. The Tribunal considers that lengthy period of time to be significant and there is evidence that the applicant has established himself well in Australia.
The Tribunal gives this aspect weight against cancellation.
· Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any breach of the law.
The Tribunal gives this aspect weight against cancellation.
· Any contribution made by the holder to the community.
The applicant has been in Australia for over 11 years. During this time, he has studied and completed courses to improve his career and employment opportunities. He currently runs his own business. [Ms E] gave evidence in the course of the hearing. She spoke highly of the applicant and the assistance that he has provided to her during significant periods of ill-health. She stated that the applicant was highly supportive and helpful.
The Tribunal is of the view that the applicant has made a positive contribution to the Australian community through his studies, employment, and close ties with individuals like [Ms E].
The Tribunal gives this aspect weight against cancellation.
Other factors
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
·Whether there would be consequential cancellations under s 140.
There is no evidence of any consequential cancellation under s 140 of the Act.
The Tribunal gives this aspect neutral weight.
·If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
There are no children who would be affected by the cancellation.
The Tribunal gives this aspect neutral weight.
·Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:
·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.
The Tribunal is mindful that the cancellation of a visa is legally distinct from removal[2] and that, prior to any removal, the Department might undertake an International Treaties Obligations Assessment which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that Australia would not remove a person in breach of international obligations. Consistent with the Full Federal Court’s authority in WKMZ, it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary.[3]
[2] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].
[3] WKMZ v MICMSMA [2021] FCAFC 55, at [151].
However, in this case, the applicant is making two significant claims and he has asked the Tribunal to make findings in relation to those claims. The Tribunal has done so in order to discharge fully its statutory obligations.
In the course of the hearing, the applicant gave evidence that he worked for [Employer 1] from around 2006/2007 when he was about [Age] years old until around 2009/2010. He explained that at first [Employer 1] was not a [employer type 1] but a [certain] institution. He said he took personal leave when he came to Australia, by telling his boss he had a family problem. He stated that he used USBs to download material from the desktop. He said he worked with about 6 others in the room and that there were security cameras in the room. The applicant described the [employer 1]’s security.
The Tribunal asked the applicant if he was allowed to use USBs and he said they were, but they were permitted access determined by their position. He said they maintained information such as [financial transactions] etc. He said he became concerned about information relating to [financial transactions] obtained without documentation or [administrative procedure]. He said he did not like the religious pretence in light of that conduct.
The applicant gave evidence that [Employer 1] was new and did not have up-to-date security mechanisms and systems, which meant that employees including IT personnel were not closely monitored. He said he chose information about certain clients. He said that [Employer 1] did not suspect his activities. He said he later uploaded the information onto his own hard drive which was taken by the smuggler.
The Tribunal asked the applicant why he is concerned, and he said people are talking and perhaps the security has been advanced. He referred to his friend who worked at [Employer 1] and that, when approached to give evidence, his friend declined out of fear and concern for his safety. The applicant said even though that person is his friend, he is worried that his friend might have reported him.
The Tribunal pointed out that the claim relating to [Employer 1] was not made when he arrived in Australia in 2010 or during later processes when there were multiple opportunities to raise the claim, including when he was interviewed. The applicant said he did not have proof at the time and the smuggler told him to change his name and make the Faili Kurd claim. He said he could not even prove that he had worked at [Employer 1]. He also said that his family told him not to say anything.
In relation to the untranslated document provided to the Tribunal, the applicant explained that the document is “part of the core [employer type 1]” basically showing the cities to demonstrate that he was associated with [Employer 1].
The Tribunal pointed out that given that he has provided incorrect information previously, it might suggest that the claim in relation to [Employer 1] is also fabricated. He said when he was on the boat, he was thinking about which way to go and he chose the Faili Kurd pathway on the smuggler’s advice.
In relation to the claim of Christianity, the applicant described his involvement in the faith until his baptism in 2016. The Tribunal referred to the statement in which he claimed to have put his name down for baptism at the detention centre and asked why he waited until 2016. He said he wanted to get more information about Christianity in the community. He referred to his involvement with [Pastor D] who also comes to the applicant’s [business].
The applicant stated that he is acting like a Christian, such as through helping others, and although he currently does not go to Church regularly, this is due to his [business] which operates 7 days a week.
[Pastor D] gave evidence referring to the applicant’s baptism and attendance at Church, which is currently limited due to the applicant’s business. The Tribunal asked [Pastor D] if he believes the applicant to be a genuine Christian and [Pastor D] noted the difficulties in assessing the genuineness of one’s faith.
The applicant’s brother gave evidence about the applicant’s involvement with [Employer 1], mostly consistent with the applicant.
The Tribunal accepts that the applicant worked for [Employer 1] in IT and that during this time, he downloaded information on USBs. As outlined above, the Tribunal was not persuaded by the applicant’s explanations relating to the incorrect provision of information. His explanations about the delay in making the claim of his fear based on his employment, are not convincing. For example, to say that he did not have proof is not convincing when he did not have proof of being a Faili Kurd.
As put to the applicant in the course of hearing, the claim relating to [Employer 1] is significant and could have given rise to legitimate protection claims, at least as meritorious as the stateless Faili Kurd claims.
Given those concerns, the Tribunal does not accept that any information downloaded by the applicant during his employment at [Employer 1] is sensitive or that it is indicative of corrupt behaviour, or that he has any fear on that basis.
In relation to the Christian claim, given the consistency in raising this claim, [Pastor D]’s evidence, and in consideration of the evidence as a whole, the Tribunal accepts that the applicant is a Christian convert, although due to his business, his attendance at Church is limited. The Tribunal views one’s faith as being fluid and a journey.
The Tribunal observes that DFAT’s Country Information Report Iran dated 14 April 2020, notes the following:
Religiously-Based Charges
3.73 Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
3.74 Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
3.75 While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytization.
3.76 Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
3.77 DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
The Tribunal is satisfied that there is a real chance that the applicant would suffer serious harm if he were to return to Iran, on the basis of his conversion to Christianity. Accordingly, the Tribunal finds that there are non-refoulement obligations and that forced return would mean breach of those obligations.
The Tribunal gives this aspect weight against cancellation.
·Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The applicant would also be subject to Public Interest Criterion 4013 which would prevent the applicant from being granted a further visa for three years.
The Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia.
101. The Tribunal gives this aspect neutral weight.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
102. There are no other relevant matters.
103. The Tribunal has carefully considered the applicant’s circumstances and the non-compliance. As discussed during the hearing, the Tribunal views the provision of incorrect information very seriously. The applicant accepted that he has provided incorrect information about significant aspects of his claims. It is the Tribunal’s task to weigh up all the relevant considerations. The Tribunal has considered the material before it individually and cumulatively. There are limited aspects in the favour of cancellation, essentially relating to the non-compliance. On balance, the Tribunal is satisfied that the evidence weighs against cancellation.
104. The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
decision
105. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Antoinette Younes
Deputy 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.
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.
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