ZUBAIDI (Migration)

[2019] AATA 6926

ZUBAIDI (Migration) [2019] AATA 6926 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahman Abdulrazak Hussien ZUBAIDI

CASE NUMBER:  1830161

DIBP REFERENCE(S):  BCC2016/2901752

MEMBER:Antoinette Younes

DATE:15 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 15 October 2019 at 2:35pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa application – Iraqi-born stateless person from Iran – claimed fear of harm from Iranian authorities – voluntary travel to Iran for extended periods on multiple occasions – engagement and marriage in Iran – delay in processing of fiancée’s partner visa – country information – Iranian exit and entry procedures – no adverse interest from authorities at airport – discretion to cancel visa – factors for and against cancellation – applicant currently in Iran with no visa to return to Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 107A, 109(1)

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s. 107A 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.

3. The applicant has left Australia and he appeared by telephone before the Tribunal on 9 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

7. 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.

8. 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?

9. 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.

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.107A of the Act.

11. Section 101 of the Act provides that:

    Visa 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.

12. Section 107A of the Act provides that:

    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.

13. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.  Relevantly, the decision record refers to the following:

    i)   The applicant arrived in Australia on Christmas Island on 15 May 2010 seeking asylum based on the claims of being an Iraqi born stateless person from Iran. On 13 June 2010, he attended an entry interview during which he outlined his reasons for leaving Iran. He stated that he travelled from Iran to Malaysia using a false Iraqi passport and from Malaysia to Indonesia using a false Omani passport. On 31 July 2010, he made a request for a Refugee Status Assessment (RSA). On 20 September 2010, the delegate found that the applicant was not owed Australia’s protection. The applicant requested an Independent Merits Review (IMR) and on 23 June 2011, the IMR delegate was satisfied that the applicant was a person to whom Australia has protection obligations and as a result, the applicant was invited to apply for a protection visa.  On 22 July 2011, the applicant lodged an application for a protection visa, subclass 866.  As part of the 866 application, the applicant completed a Form 866C.

    ii)     At question 41 of the Form 866C asking “I am seeking protection so that I do not have to go back to”, the applicant answered Iran/Iraq. 

    iii)   At question 42 of the Form 866C asking “Why did you leave that country?”, the applicant referred to his attached Statutory Declaration provided in support of the application. In the Statutory Declaration, the applicant stated that he was born in Iraq in 1979 and that his parents were expelled from Iraq to Iran because they were falsely accused of being Faili Kurds. He stated that his family are not Kurdish. He claimed that he possessed a white card as his identification and because of this he did not have any rights in Iran.  He is not an Iranian citizen but is of Arabic descent and has faced mistreatment. He claimed that he lived in Ahwaz, Iran and that one of his friends who was a neighbour was part of the Ahwaz Independent Movement (‘Movement’). He claimed that his friend was arrested in 2008 and imprisoned for two years but later released and continued to reside in the neighbourhood. The applicant claimed following those incidents in April 2010, the Etelat (Ministry of Intelligence of the Islamic Republic of Iran) came to the house looking for him because he was suspected of being involved in the Movement. He claimed that he went into hiding at the house of one of his friends in Ahwaz who arranged for him to leave Iran. He claimed that the Etelat came again looking for him after he left Iran stating that he was wanted because they had information that he was involved in the Movement.

    iv)   At question 43 of the Form 866C asking “What do you fear may happen to you if you go back to that country?”, the applicant referred to his Statutory Declaration.  In the Statutory Declaration, the applicant claimed that he feared the Etelat and the Iranian authorities. He claimed that if they were to accuse him of being involved in the Movement, he would be detained, interrogated and he would not be able to prove his innocence. He reiterated that he is not an Iranian citizen and he only has a white card which would put him at more risk because he has no right to protection from the Iranian authorities.

    v)    At question 44 of the Form 866C asking “Who do you think may harm/mistreat you if you go back?”, the applicant referred to his Statutory Declaration. In the Statutory Declaration, he claimed that he is not an Iranian citizen and he has no right to return to Iran. He further claimed that if he were to return with no documents he would be interrogated at the airport.  He claimed that although he was born in Iraq, he does not have Iraqi nationality and that his parents do not have documents from Iraq. He claimed that he does not have any documents from Iraq and he does not know anyone who could assist him or keep him safe. He stated that he does not wish to return to Iraq because he and his family were expelled from Iraq and because of safety concerns.

    vi)   At question 45 of the Form 866C asking “Why do you think this will happen to you if you go back?”, the applicant referred to his Statutory Declaration. In the Statutory Declaration, the applicant claimed that if he were accused by the Etelat of wrongdoing, it would be impossible for him to prove his innocence. He claimed that his parents were falsely accused of being Faili Kurds and they were expelled from Iraq. He has been accused of being involved in the Movement and he cannot ask any country to protect him because he is not a citizen of any country. He stated that his life would be at risk and he has no government to assist or protect.

    vii)  In response to question 46 of the Form 866C asking “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, he referred to his Statutory Declaration where he claimed that the authorities of Iran cannot protect him because the Etelat is part of the Iranian government.

    viii) The applicant signed the Declaration at question 65 of the Form 866C which states:

    I do solemnly declare:

    ·The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.

    …

    ·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

14. The decision record further indicates that Departmental records show that since the grant of the protection visa, the applicant has spent a significant amount of time outside Australia. The information shows that:

    i)   On 23 December 2013, the applicant departed Australia and he returned on 21 January 2014.

    ii)     On 17 May 2014, the applicant departed Australia and returned on 30 June 2014.

    iii)   On 23 December 2014, the applicant departed Australia and returned on 8 February 2015.

    iv)   On 19 October 2015, the applicant departed Australia and returned on 15 December 2015.

    v)    On 2 May 2016, the applicant departed Australia and returned on 3 June 2016.

    vi)   On 1 October 2016, the applicant departed Australia and returned on 25 November 2016.

    vii)  On 1 May 2017, the applicant departed Australia and returned on 4 July 2017.

    viii) On 9 May 2018, the applicant departed Australia and return on 8 August 2018.

    ix)   On his outgoing passenger cards, the applicant declared that the country where he would be staying abroad was Iran. On the incoming passenger cards on each of those occasions, the applicant declared that the country where he spent most of his time abroad was Iran. The applicant also declared on those cards that the purpose of his trips to Iran was either for a holiday or to visit family and friends.

    x)    On his return to Australia from Iran on 4 July 2017, the applicant was interviewed by the Australian authorities at Sydney airport and the applicant stated that he had been visiting Iran for two months to see his wife and children. In his possession, he had his Australian Titre de Voyage travel document which was valid to 7 October 2017 which contained visas to Iran and date stamps showing that he had entered and departed Iran on 20 October 2015 (exiting 14 December 2015), 3 May 2016 (exiting to June 2016), 2 October 2016 (exiting on 24 November 2016), and 2 May 2017 (exiting on 3 July 2017). The Iranian visa stamps which were issued for three months each indicate that the applicant was permitted entry to Iran between 14 October 2015 and 12 January 2016, 21 April 2016 and 20 July 2016, and 28 September 2016 and 27 December 2016. Departmental records indicate that the applicant’s previous dates of travel between 23 December 2013 and 8 February 2015 also show that he had returned to Iran during this time. In total, the applicant remained in Iran for a period totalling 410 days.

    xi)   On 20 August 2014, the applicant lodged an application to sponsor his fiancée, an Iranian national for a Prospective Marriage, subclass 300 visa. The applicant became engaged during his second trip to Iran on 17 May 2014. The address provided by the applicant’s fiancée in her subclass 300 visa application is listed as Ahwaz, the place in Iran from which the applicant claimed that he fled.

15. On 8 August 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC), to which the representative responded in submissions dated 23 August 2018.  Relevant parts of the submissions are discussed in this decision.

16. In the course of the hearing, the applicant accepted that he has returned to Iran on all the occasions referred to above and he confirmed that he is currently in Iran.  He indicated that he does not have a visa to return to Australia. 

17. Given the fact that the applicant does not have a visa to return to Australia, the Tribunal conducted a telephone hearing. Although there were some connection issues, the Tribunal is satisfied that the applicant had an opportunity to put his case in full.  The Tribunal also gave the applicant time to provide further submissions. 

18. The Tribunal asked the applicant about his neighbour’s involvement in the Movement and the applicant stated that although he knew about the neighbour’s involvement in the Movement, he did not know the extent of those activities.  He said the Iranian authorities arrested the neighbour in 2005/2006 and he was imprisoned for 2 years.  The Tribunal pointed out to the applicant that in his Statutory Declaration provided in support of the application for a protection visa, he claimed that the neighbour was arrested in 2008.  The applicant stated that it has been over 10 years so his recollection is impacted.  The Tribunal is persuaded by the applicant’s explanation and has not used this inconsistency in an adverse manner to the applicant.

19. The applicant provided to the Tribunal a copy of his Titre de Voyage, medical notes of his wife and an untranslated document.  He claimed that he cannot stay in Iran because his Iranian visa will expire “next month”.  The Tribunal referred to his returns to Iran subsequent to the grant of the protection visa including the fact that he is currently in Iran.  The Tribunal indicated that the returns raise serious doubts about his claims for protection. The applicant stated that since the grant of the protection visa, he no longer feared the Iranian authorities.  He said the visa grant meant that he no longer had a reason to fear harm.  He said he is stateless but he is not a leader of any adverse organisation. The Tribunal is not persuaded by those explanations.  The applicant claimed that he holds an adverse profile in Iran and if he were to return, he would be harmed.  The Tribunal is of the view that the returns are strong evidence that the applicant has provided incorrect information in the manner described in the s.107 Notice.

20. In response to the NOITCC, the representative provided submissions that:

    ·The applicant travelled to Iran for compelling and compassionate reasons, including, to get engaged to Ms Mansouri with whom he had been “chatting” for a year prior to his first travels outside of Australia in December 2013. Ms Mansouri’s family belong to a tribe called Mazraah or Al-Mazraa’ah which is a strong tribe in Ahwaz. The applicant had to travel to Iran in December 2013 because her family threatened him with harm if he would not come to Iran and marry her as they thought he was wasting time by chatting for almost a year without doing much to express his love. Her family did not understand that it was risky for him to travel to Iran. The applicant spoke to his brother Mohammed who told the applicant that this can be managed with payment to a high ranking officer who was a major general work in at the Imam Khomeini airport. The officer supervised sections in the airport and promised to facilitate in return for money the applicant’s passage through the airports.

    ·The applicant married according to religious rules but they were not able to register the marriage in Iran because the applicant is a stateless person. The applicant lived in his cousin’s house 60 km away from Ahwaz and he was unable to go to the family home because he feared that he would be targeted by the Iranian authorities. The applicant was hiding and he would not have gone to Iran had not been for the officer assisting his travels.

    ·For the following years, the applicant travelled to Iran because his fiancée’s family and tribe kept on asking him to go to Iran. He applied to the Australian Embassy in Tehran to sponsor his fiancée but received a message from the Department on 20 August 2014 referring to changes to processing for family migration visa applications, essentially referring to the processing time being for “a number of years”. This meant that the applicant would not have been able to reunite with his fiancée unless he was able to acquire Australian citizenship. When the Australian Embassy in Tehran started processing the fiancée’s application, it was more than four years since its lodgement.

    ·The applicant was granted a protection visa as a stateless person who had a profile in Ahwaz. He presented to the Department a white card referring to his name as Rahman Abdulrazaq Subaidi with a date of birth of 22 April 1979. When he came to Australia, he was given the name Rahman Abduilrazaq Hussein Subaidi with a date of birth of 31 December 1979. He was also granted a Titre de Voyage referring to his nationality as being Iraqi. The applicant used his document during his travels and he was assisted by the officer.  In Iran, the applicant spent all his time in Mashrootah where his fiancée saw him.

21. The applicant was granted the protection visa based on his claims of being stateless with no right of return to Iran (or Iraq).  He also claimed to fear harm on the basis of his neighbour’s involvement in political activities and because he was personally accused of being involved.  Those claims were central to the grant of the visa.  The applicant said that he is not an Iranian citizen and he only has a white card which would put him at more risk because he has no right to protection from the Iranian authorities.  As raised in the course of the hearing, there is no evidence before the Tribunal of the existence of the white card. The applicant gave evidence that he had the card whilst he was in detention on Christmas Island.  He said he never provided the card because he was never asked. This is in contrast to the submissions that the applicant presented to the Department a white card referring to his name as Rahman Abdulrazaq Subaidi with a date of birth of 22 April 1979.

22. As mentioned in the delegate’s decision record and confirmed by the applicant in the course of the hearing, there is no evidence of a white card belonging to the applicant held in Departmental records, raising doubts about the applicant’s claim that he is also known by another version of his name and a different date of birth. As referred to in the delegate’s decision record[1], there are stringent checks undertaken by the Iranian authorities at airports in Iran which means that it is highly unlikely that the applicant would have been able to pass through the airport on those many occasions that he travelled to Iran.

    1.At pages 9 and 10 – e.g. Exit and Entry Procedures, Australian Department of Foreign Affairs and Trade, 30 August 2011.

1. In its most recent report of 7 June 2018, the Department of Foreign Affairs and Trade (DFAT) COUNTRY INFORMATION REPORT IRAN, noted the following:

   Exit and Entry Procedures

   5.20Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, Asia and the United Arab Emirates. The government does not generally require citizens to possess an exit permit for foreign travel. However, in some cases citizens do require special permission to obtain a passport (see also Passports). This includes: minors under the age of 18, who require the permission of their father/ custodian; males of any age who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; married women, who require their husband’s permission. Once in possession of a passport, this group are free to leave the country without obtaining an exit permit to do so. Those whose skills are in particular demand (such as staff at the Iranian Atomic Energy Organisation) and/ or who were educated at government expense are reportedly required to post bond to obtain an exit permit. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of, or exemption from, military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit, and two passport photographs.

   5.21Authorities routinely impose travel bans on citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes, crimes committed abroad, and outstanding sentences awaiting enforcement. Civil and political activists are particularly likely to face travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are prohibited from leaving the country. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether or not any Iranian citizen can leave the country by air.

   5.22DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, however, smuggling people into or out of Iran is a crime punishable by up to ten years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country.

2. The applicant’s claim that he was able to travel to Iran through the assistance of an officer who was bribed, is not convincing. On the evidence before it, the Tribunal is satisfied that had the applicant been of adverse interest to the Iranian authorities as he had claimed, he would have come to the attention of the Iranian authorities on entry and exit from the airport in Iran. Moreover, the fact that the applicant has travelled on multiple occasions to Iran and in fact is currently in Iran, suggests that he does not have a genuine fear of harm for his life. His explanations about his fiancée and the pressures from her family, as well as his explanation in the course of the hearing that he no longer feared harm because he had Australia’s protection, are unconvincing. The Tribunal is satisfied that the repeated voluntary returns to Iran following the grant of the protection visa are strong and persuasive evidence that the applicant did not have an adverse profile as claimed. The applicant remained in Iran during his returns in total for over 400 days. He claims that he lived in his cousin’s house 60 km away from Ahwaz and that he was unable to go to the family home because he feared that he would be targeted by the Iranian authorities. He claimed that he was hiding and he would not have gone to Iran had it not been for the officer assisting his travels. The Tribunal finds it implausible and given the length of time was over 400 days, that the applicant was essentially in hiding during his time in Iran.

3. For the reasons given above, the Tribunal has given significant weight to the fact that the applicant has returned to Iran on multiple occasions where he has remained in total for over 400 days.

4. In consideration of the evidence as a whole, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. The Tribunal is satisfied that the applicant provided incorrect answers to questions 41, 42, 43, 44, 45, and 46 in the Form 866. In essence, the Tribunal finds that when the applicant applied for the protection visa, he did not fear harm for any reason by the Iranian authorities (or any other authority such as the Iraqi authorities) and he did not have an adverse profile for any of the claimed reasons.

   Should the visa be cancelled?

5. 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).

6. 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 r.2.41 of the Regulations. Briefly, they are:

   ·     the correct information

7. The applicant claimed that he holds an adverse profile for a number of reasons including being stateless. He claimed that he feared that he would be harmed in case of his return to Iran.  As discussed above, the Tribunal has found that those claims are incorrect.

8. The correct information is that the applicant does not have an adverse profile for any of the stated reasons and that he did not fear the claimed harm.

9. The Tribunal has given this consideration significant weight in favour of the cancellation of the visa.

   ·     the content of the genuine document (if any)

10. Although, in submissions responding to the NOITCC, it was claimed that the applicant had presented to the Department a white card referring to his name as Rahman Abdulrazaq Subaidi with a date of birth of 22 April 1979, the applicant gave evidence that he did not provide a white card.  He stated that he had the card when he was on Christmas Island.

11. In relation to the Marriage Certificate provided in support of the application for a Prospective marriage, the Tribunal noted in the course of the hearing that the document does not mention a number of details such as place of issue raising some doubts about the document.  He said the document was prepared by the Sheik.

12. The Tribunal has some doubts about the document but has decided to give neutral weight under this consideration.

    ·     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

13. The applicant was granted the protection visa essentially based on the claims that he has an adverse profile as a result of which he feared harm in returning to Iran.  The Tribunal has found that those claims are incorrect.

14. The correct information is that the applicant does not have an adverse profile in Iran for any of the claimed reasons and he did not fear harm in returning to Iran.

15. On the evidence, the Tribunal is satisfied that the visa was granted wholly or partly on the basis of the incorrect information relating to the applicant’s claims. 

16. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

17. The non-compliance occurred when the applicant provided incorrect information in the application for the protection visa in his answers to questions 41, 42, 43, 44, 45, 46 and 65 in Form 866C.  In those responses, the applicant provided incorrect information relating his claims for protection. 

18. The Tribunal considers the provision of the incorrect information to be serious. 

19. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     the present circumstances of the visa holder

20. The applicant is currently in Iran and he does not have a visa to return to Australia. He has a partner in Iran and he confirmed that he does not have any children. He provided evidence that his partner is unwell and the Tribunal gives weight in favour of the applicant in this regard. 

21. Despite returning, he maintains that he has a well-founded fear of persecution in Iran for the reasons claimed during the protection application process.  For the stated reasons, the Tribunal has found that the applicant has provided incorrect information when making those claims.  The Tribunal gives this aspect significant weight in favour of 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

22. The applicant responded to the NOITCC and he has continued to assert that he has not provided incorrect information in the way described in the s.107 Notice.

23. The Tribunal gives this aspect weight in favour of cancellation.

    ·     any other instances of non-compliance by the visa holder known to the Minister

24. There is no evidence of other instances of non-compliance. 

25. The Tribunal gives this consideration neutral weight.

    ·     the time that has elapsed since the non-compliance

26. The breach occurred in July 2011 when the applicant lodged the application for the protection visa.  He however has spent over 400 days in total in Iran since the grant of the visa. He is now in Iran.

27. Although the breach occurred over 8 years ago, given the nature of the breach and the fact that the applicant is in Iran now, the Tribunal gives this consideration limited weight in his favour.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

28. There is no evidence before the Tribunal of any breaches of the law. 

29. The Tribunal gives this consideration neutral weight.

    ·     any contribution made by the holder to the community.

30. The applicant worked in Australia but there is no other evidence of contribution.  

31. The Tribunal gives this consideration limited weight in the applicant’s favour.

32. While these 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.

33. The Tribunal acknowledges that there are mandatory legal consequences as a result of cancellation including difficulties in obtaining any further Australian visas. The Tribunal appreciates that the applicant was in Australia for a substantial period of time but for the stated reasons, the Tribunal is not satisfied that his circumstances as accepted by the Tribunal mean that the visa should not be cancelled.  The applicant has maintained his claims that he fears harm in Iran due to an adverse profile.  However, for the stated reasons, the Tribunal is satisfied that those claims are incorrect.  On the evidence, the Tribunal finds that Australia would not be in breach of any international obligations in case of the cancellation.

34. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal has concluded that there are aspects in favour of the applicant but there are aspects weighing heavily in favour of cancellation. The applicant has provided significant incorrect information when seeking protection from the Australian authorities.

35. In conclusion, the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.