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1810335 (Refugee) [2018] AATA 3927

Tribunal: Member Nicole Burns

The Department of Immigration and Border Protection (the Department) granted a Protection visa to the applicant in 2010. On 12 March 2018, the Department cancelled the visa because they found the applicant had provided incorrect answers with his Protection visa application.[1] The applicant applied to the AAT for a review of this decision.

In his original claim for a protection visa, the applicant stated he had left Iran in 2009 on a false Iranian passport with assistance from a smuggler and he feared persecution from the Iranian authorities because was a stateless Faili Kurd.

The applicant later applied for Australian citizenship and when the Department was assessing the application, they discovered he had returned to Iran in 2013, which cast doubts on his claims to genuinely fear persecution from the authorities in Iran. The Department found a number of inconsistencies in the applicant’s evidence regarding his visit to Iran. The evidence was not supported by country information and the advice from relevant Australian diplomatic officials.

On review, the AAT considered the evidence about the applicant’s visit to Iran in 2013 using a false Iraqi passport and found a number of inconsistencies. This included the applicant’s religious marriage certificate and his untranslated Iranian birth certificate, which indicated that the applicant’s nationality is Iranian and that the applicant was issued a genuine Iranian passport by the Iranian Embassy in Canberra. The Department also conducted an identity assessment in February 2015 and concluded that the applicant was not stateless and likely to be a citizen of Iran.

Based on the evidence before it, the AAT was not satisfied that the applicant returned to Iran in 2013 on a false Iraqi passport, but considered that he returned on an Iranian passport. The AAT was also not satisfied that the applicant departed Iran with a false Iranian passport in 2009, and considered that he departed on his own Iranian passport.

For these reasons the AAT found that the applicant was an Iranian citizen at the time he made his application for protection and not stateless. The AAT found that the applicant had provided incorrect answers in his protection visa application form.

The visa is not automatically cancelled once there is satisfaction that incorrect information was provided on the visa application. The decision maker then must decide whether the visa should be cancelled after considering a set of prescribed and other circumstances.[2]

The AAT outlined circumstances that supported the cancellation of the visa including the applicant’s status as an Iranian citizen, not a stateless person, that the applicant’s protection visa was granted partly on the basis of incorrect information, and his ongoing serious criminal matters. The AAT also considered whether cancellation of the visa, and his removal from Australia, would lead to a breach of Australia’s non-refoulement obligations. Taking all the evidence and country information into account, the AAT found that the applicant did not face a well-founded fear of persecution on return to Iran, or a real risk of significant harm if removed from Australia to Iran. The AAT concluded that the applicant’s removal from Australia would not be in breach of its non-refoulement obligations.

Having regard to all of the relevant circumstances, the AAT concluded the applicant’s visa should be cancelled and affirmed the Department’s decision.

Read the full written decision on AustLII.

 

[1] Section 109(1) of the Migration Act 1958

[2] This refers to the prescribed circumstances as set out in r.2.41 of the Migration Regulations 1994 and other circumstances set out in Departmental policy.