2303599 (Migration)

[2023] AATA 877

2303599 (Migration) [2023] AATA 877 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2303599

MEMBER:Jason Pennell

DATE:28 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 28 March 2023 at 9.25am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – granted in conjunction with application for protection visa – criminal convictions and imprisonment – conversion to Christianity and participation in house church – vague evidence of membership, participation and raids by authorities – unofficial membership and no open expression – protection visa refused and affirmed with no application for judicial review – membership and participation in Australia – written and oral supporting statements – country information – non-refoulement – no real chance of harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2)(a), (aa), 116(1)(g), 197C(3)

Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 5 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2.The delegate cancelled the visa under s 116(1)(g) of the Act and Reg 2.43 of the Migration Regulations 1994 (the Regulations) on the basis that the applicant has been charged with an offence against a law of the Commonwealth, a State, a Territory, or another country. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.The applicant appeared before the Tribunal on 22 March 2023 at 10.00am to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B].

4.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5.Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) of the Act and Reg 2.43 of the Regulations. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Applicants History/Background

6.The applicant was born In Teheran, Iran on [Date]. The applicant’s father passed away about 20 years ago and worked as [an Occupation 1]. The applicant’s mother continues to live in Tehran. The applicant has [brothers] who continue to live and work in Tehran. The applicant was married approximately [Number] years ago and has a son who is [Age] years old. 

7.The applicant was educated in Iran having attended [High School]. After school the applicant worked with his father for approximately 2 years after which he performed his military service for a further 2-year period. While performing his military service the applicant worked as [an Occupation 2] in and around Tehran. After his military service, the applicant obtained a Certificate in [Subject] at [a] College and owned and operated his own  [business] until his departure for Australia.   

8.The applicant’s evidence to the Tribunal was that when he was in Iran, he was introduced to the House Church through a close friend. His evidence was that his friend’s family conducted church services and bible groups at their home. As a result, of visiting his friend at home he became involved in the House Church. The applicant’s evidence was that he enjoyed the company of the other members of the Church and over time contoured to participate in the services and bible study groups. The applicant’ evidence was that the undercover police and intelligence services in Iran raided his friend’s House Church. As a result, he claimed it became dangerous. The applicant claimed that he initially tried to move to another city were his wife’s family lived. However, his brother helped him travel to [Country 1] where he discovered he could travel to Australia via [Country 2]. The applicant initially arrived in Christmas Island.

9.On 5 February 2018 the applicant was charged with the following offences (‘the offences’):

·Section 474.26 of the Criminal Code Act 1995 (Cmth) – did use a carriage of service to procure persons under the age of 16 years.

·Section 474.27A of the Criminal Code Act 1995 (Cmth) – did use telecommunications service to groom a person under the age of 16 years.   

·Section 474.27A of the Criminal Code Act 1995 (Cmth) – did use a carriage service to transimit communication that is indecent to a person who the accused believed to be under the age of 16 years.

·Section 474.19(1) of the Criminal Code Act 1995 (Cmth) – accessed material (being child pornography) using a carriage of service.

10.On 5 February 2018 a Notice of Intention to Consider Cancellation (NOICC) under section 116 of the Act was serviced on the applicant. As part of the NOICC the department advised the applicant that it appeared there were grounds for his bridging visa to be cancelled under section 116(1)(g) and Reg 2.43(1)(p)(ii) based on the offences with which the applicant had been charged. On 5 February 2018 a decision was made to cancel the applicant’s bridging visa and a notification of cancellation letter dated 5 February 2018 was given to the applicant by hand.

11.On 17 October 2018 the applicant was convicted of the offences and sentenced to a total period of 4 years jail.

12.On 10 March 2023 the department served a Notification of Cancellation (NOC) under section 116 of the Act. The NOC was sent to the applicant because of the department having assessed the applicant case and determining that it had not correctly notified the applicant of its decision to cancel his bridging visa. As a result, the department re-notified the applicant of its decision to cancel his Bridging E Visa.

13.The applicant’s immigration background is as follows:

Date	Details
[October] 2012	Arrived in Australia
05 December 2012	Granted a Humanitarian Stay (UJ-499) Visa
19 June 2013 to 26 April 2017	Granted various Bridging Visa’s
3 May 2017	Application for Safe Haven Protection Visa (SHEV)
16 June 2017	Associated SHEV Bridging Visa
5 February 2018	Bridging Visa E cancelled
13 December 2018	Applicants SHEV refused
20 February 2020	IAA Affirmed decision to refuse the applicant’s SHEV
10 March 2023	Notification of Cancellation of Bridging Visa E

Does the ground for cancellation exist?

s 116(1)(g) - prescribed ground

14.A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(p) is relevant as the applicant has been charged and convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.

15.The applicant accepted that he had been charged and convicted of the charges detailed above. Accordingly, the Tribunal is satisfied that there are grounds for cancelling the applicant’s bridging visa under section 116(1)(g) of the Act and Reg 2.43(1)(p)(ii) of the regulations. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

16.In considering whether a Bridging E visa should be cancelled because of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to consider specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

17.The primary considerations are:

·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

18.The secondary considerations are:

·the impact of a decision to cancel the visa on the family unit.

·the degree of hardship that may be experienced by the visa holder if the visa is cancelled.

·the circumstances in which the ground for cancellation arose.

·the possible consequences of cancellation; and

·any other matter considered relevant.

19.The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

The Government’s view that the prescribed grounds for cancellation should be applied rigorously.

20.      The Tribunal notes that the government is of the view that prescribed grounds for cancellation should be applied rigorously. However, it is incumbent on the Tribunal to deal with every matter on its merits. Accordingly, in this case the Tribunal has considered the applicants claim in light of the secondary considerations as detailed below. Accordingly, the Tribunal places little weight in relation to this consideration.

the best interests of any children under the age of 18 in Australia who would be affected by the cancellation

21.      This is not a consideration in this matter. Accordingly, the Tribunal places no weight on this consideration.

The purpose of the visa holder’s travel and stay in Australia.

22.The applicant claims that the purpose of him traveling to Australia was because he feared being harmed in Iran by reason of his rejection of Islam and conversion to Christianity. The applicant claims that he cannot return to Iran because there is a real chance he will be seriously harmed or alternatively a real risk he would be significantly harmed upon his return to Iran due to his rejection of Islam and his conversion to Christianity.    

23.The applicant’s evidence to the Tribunal was that through a friend he had become involved in a House Church in Iran. He claimed that because the Iranian authorities had raided the House Church he was attending, he fled to another city in Iran and then to [Country 1] before traveling to Australia. 

24.On 3 May 2017, the applicant made application for a Safe Haven Protection Visa (SHEV) The applicant’s claims and evidence in support of his SHEV application were similar to his evidence to the Tribunal. In support of his SHEV application the applicant claimed that in or about 2012 he experienced some personal problems. As a result, he was unknowingly taken to a house church by a friend who thought he would benefit from speaking with the Minister. After meeting with the Minister, the applicant continued to attend the house church on a weekly basis and was unofficially baptised and converted to Christianity.  

25.The applicant’s evidence to the IAA was that while he was at the house church, it was raided by the authorities resulting in the Minister, his wife and some others being arrested.  The applicant’s evidence was that, with some others, he escaped and immediately fled Tehran. His evidence to the IAA was that he borrowed some money and clothing from his mother and travelled to West Azerbaijan province to hide. He claims that two days later the authorities raided his home and found Christian documents which were seized together with his identity documentation. The applicant claims he was assisted by a smuggler to cross the border into [Country 1] upon which his brother travelled to meet him and gave him his passport so that he could fly out of the country to Australia. He claimed that he was not able to fly out of Iran because he had been blacklisted.

26.Amongst other matters, the IAA did not accept the applicant’s evidence that he had engaged in Christian activities in Iran, was involved in a house church or converted to Christianity in Iran. As a result, the IAA was not satisfied that the applicant had a well-founded fear of persecution or that there was a real risk he would be significantly harmed if he was returned to Iran.   

27.The applicant’s evidence to the Tribunal; about his involvement in the house church in Iran was vague and lacking in any detail. He merely claimed that a friend had introduced him to the house church and that he continued to attend the church because he found the environment friendly and inviting. The applicant’s evidence was that he had not openly expressed his conversion to Christianity to his family or friends in Iran. Nevertheless, in his SHEV interview the applicant claimed that he had been ‘unofficially’ baptised while in Iran.[1] Save to say that he attended services and bible study groups the applicant did not provide any details of his involvement with the house church. There was no evidence that the applicant had proselytised the Christian faith outside the house church. In addition, there was no evidence that the applicant had experienced any harassment or discrimination in Iran from the authorities or from his family and friends because of him having attended the house church as claimed.

[1] Immigration Assessment Authority Ref No IAA18/06154 20 February 2019 @ [18].

28.The country information[2] reports that Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches.’ While it’s impossible to provide precise figures, its reported that Iran has a growing Christian population with an estimate of between 300,000 and 350,000 Muslim converts to Christianity.[3] Its reported[4] that many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity while others see adopt Christianity (albeit surreptitiously) as a form of antigovernment protest. A large percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. It’s reported that some converts travel to Turkey to be baptised, then return to Iran and practise in private.[5]

[2] DFAT Country Information Report Iran 14 April 2020 @ p.32

[3] ibid

[4] ibid

[5] ibid

29.Its reported[6] that house churches exist across Iran, particularly in major cities, and tend to follow evangelical Protestant teachings. They are generally situated in more affluent and liberal parts of major cities (including north Tehran).[7] They vary in size, style and structure. It’s reported[8] that most are small and informal and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi). It’s reported[9] that to avoid detection house, church congregants regularly change houses.

[6] ibid

[7] ibid

[8] ibid

[9] ibid

30.Its reported[10] that the leaders of the house church congregations in Iran face a higher risk of arrest and prosecution than regular members. Small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment.[11] However, members of larger congregations who engage in proselytisation activities and have connections to broader house church networks may face official repercussions, including arrest and prosecution.[12] While some members of house churches have been arrested, it is not common and they are generally released.[13] 

[10] DFAT Country Information Report Iran 14 April 2020 @ p.33

[11] ibid

[12] ibid

[13] ibid

31.The country information[14] reports that despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts. It’s reported that a Christian convert who maintained a low profile and did not openly proselytise are not of interest to the authorities and would not face harm.[15] That is converts who keep their beliefs private are not of interest to the authorities. In contrast, those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination.[16]

[14] ibid

[15] ibid

[16] ibid

32.The applicant claims that the house church he was attending was raided by the authorities. However, he did not provide any detail of the raid including its timing, the number of police/officials in attendance, how he managed to escape the raid and the number and identity of those arrested. In circumstances where the applicant was a not a leader of the house church, was not officially baptised into the Christian faith, had not informed his family and friends of his conversion to Christianity and was not proselytising his Christian faith, the Tribunal does not accept that he had converted to Christianity in Iran as claimed.  As such, the Tribunal does not accept that there was any chance of the applicant being seriously or significantly harmed in Iran. In addition, the Tribunal finds that there is no real chance or real risk the applicant will be seriously or significantly harmed if he is returned to Iran because of him having attended a house church in Iran as claimed.

33.The applicant claims since he has been in Australia, he has rejected Islam and has converted to Christianity.  The applicant provided a statement by the reverend [Dr C] of [Church 1] that stated the applicant had been baptised at [named Church] [in] August 2013. [Dr C] states that he had no doubts about the applicant’s sincerity in choosing to become a Christian. In addition, the applicant provided a statement from [Rev D] of [Church 2] that stated the applicant had been involved in [Church 2] from 2015 to 2018. The applicant involvement included attending church on Sunday mornings, bible classes and assisting with working bees and other maintenance tasks. [Mr A], a member of the [congregation], appeared before the Tribunal and conformed that the applicant had been active member of the church community. His evidence including the fact that the church offered a rehabilitation and support program to assist the applicant in the wake of his criminal charges. [Mr B] also appeared before the Tribunal in support of the applicant. He confirmed that the applicant had converted to Christianity and claimed that the applicant desire was to re-establish himself to be able support his wife and family. Based on the evidence presented to the tribunal, it accepts that the applicant has been baptised and has converted to Christianity in Australia.

34.However, the country information[17] reports that Iranian who convert to Christianity abroad (including those who publicise their conversion online) are unlikely to face adverse official attention upon their return to Iran, provided they have not come to the attention of the authorities for political purposes and that they maintain a relatively low profile and not engage in proselytization activities.  Nevertheless, its reported that Christian converts face a high risk of societal discrimination if their conversion becomes widely known, particularly if they are from a strict Muslim family. This may involve ostracism and a person’s family or discrimination in employment.[18]

[17] ibid

[18] ibid

35.In this case the applicant has not previously come to the attention of the authorities for any political reason. In addition, he previously attended the house church discreetly without advising his family and friends. The applicant has not engaged in proselytization activities in the past and there was no indication that he intended to engage in such activities in the future. In such circumstances and based on the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed and that there is no real risk he will be significantly harmed if he is to return to Iran as a Christian convert.

36.The applicant claims that the reason for him traveling and remaining in Australia was because he fears that he will be seriously or significantly harmed in Iran because of his rejection of Islam and conversion to Christianity. However, the Tribunal , has found that there is no real chance or real risk of the applicant being seriously or significantly harmed upon his return to Iran. As a result, the Tribunal places little weight on this consideration in the applicant’s favour.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

37.The applicant evidence was that if his bridging visa was cancelled, he would not be able to work to be able to support his family in Iran. The Tribunal accepts that the applicant holds a genuine fear that he cannot work to provide funds to his family so that they are able to afford a better life in Iran. However, the applicant evidence to the Tribunal was that he is a trained [Occupation 3] and that in Iran he owned and operated his own [business]. There is no evidence to suggest that the application would not be able to work in Iran or that he would not be able to recommence work as [an Occupation 3] for the purposes of supporting his family upon his return to Iran. The applicant has shown himself to be hardworking and resourceful with a strong work ethic which will enable him to earn an income in Iran. The Tribunal accepts that he may be able to earn more money in Australia to help support his wife and his son. However, the Tribunal finds that any hardship he may suffer upon hisreturn to Iran because of not being able to earn enough money or because of him having to start again would be limited and able to be overcome because of his own resourcefulness and his ability to apply himself to the task at hand. As such, the Tribunal gives this consideration no weight in the applicant’s favour against cancelation of the applicant’s visa.

Circumstances in which ground of cancellation arose.

38.The cancellation of the applicant visa occurred because of he was charged and convicted of the offences as detailed above. Given the nature of the charges the Tribunal gives this consideration no weight in the applicant’s favour against cancelation of the applicant’s visa.  

Past and present behaviour of the visa holder towards the Department

39.There is no evidence that the applicant has been in breach of his visa conditions save for the basis upon which the delegate has cancelled the applicant’s visa. The Tribunal places little weight on this consideration in favour of the applicant against cancelation of the applicant’s visa.

Whether there would be consequential cancellations under s 140

40.The circumstances of this case are such that no person’s visa would be consequentially cancelled under s.140 of the Act. The Tribunal places no weight on this consideration.

Any mandatory legal consequences.

41.The applicant was granted a Bridging visa E in association with the lodgement and consideration by the department of SHEV application. A decision by the Tribunal affirming the delegate’s decision would mean that the applicant’s Bridging visa would cease. The applicant is currently in detention. Nevertheless, if the applicant’s Bridging visa is cancelled, he would become an unlawful non-citizen and may be liable to remain in detention under s.189 of the Act. The applicant has no other pending visa applications. As such if the Tribunal affirms the delegate’s decision, the applicant may be affected by s.48 of the Act.

42.The tribunal notes that in light of the SHEV decision the applicant protection visa process has been completed and he is unable to make any further application for protection. In addition, the Tribunal notes that there is no pending application for judicial review of the SHEV decision. In such circumstances there is no impediment to the applicant returning voluntarily to Iran.

43.The Tribunal gives this consideration no weight by reason of the fact it is a matter of the operation of the Act.   

Any international obligations

44.In this case it was submitted that if the applicant is returned to Iran there would be a real risk, he would face persecution amounting to death and other forms of serious and significant harm. As such, it was submitted that any act to forcibly remove him to Iran would amount to a clear breach of Australia’s non-refoulment obligation. It was noted that Iranian authorities do not currently accept non-voluntary returnees.[19]   

[19]  Department of Foreign Affairs and Trade, Country Information Report 14 April 2020 at [5.27]

45.If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act and must be removed as soon as practicable (s 198 of the Act).

46.Recent amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

(a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

(b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)  none of the following apply:

(i)  the decision in which the protection finding was made has been quashed or set aside.

(ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

(iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

47.Section 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non‑citizen requests removal.

48.However, in this case the applicant made a valid SHEV application on 3 May 2017 which was finally determined by the IAA on 20 February 2020. The IAA found that Australia did not owe the applicant protection visa obligations under s.36(2)(a) and s.36(2)(aa) of the Act. In addition, in these reasons, the Tribunal has considered the applicant’s claim that he will be harmed if he is returned to Iran as a Christian convert. For the reasons above the Tribunal has determined that there is no real chance or real risk the applicant will be seriously or significantly harmed if he is returned to Iran as a Christian convert as claimed.  In circumstances where no protection finding has been made  in favour of the applicant, s 197C doesn’t apply. As such, there is no impediment to the applicant’s removal nor any issues with non-refoulment obligations.

49.

50.As such, cancellation of the applicant bridging visa may lead to prolonged detention if the applicant refuses to voluntarily depart the country.  However, the Tribunal has found that the applicant does not have a real chance or a real risk of seriously or significant ham if he is returned to Iran. In such circumstances, the applicant can return to Iran voluntarily at any time. The Tribunal gives this factor some weight towards cancelling the visa.

Any other relevant matters.

51.There are no other relevant matters

52.Considering the circumstances, the Tribunal concludes that the visa should be cancelled

DECISION

53.The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell
Senior Member