1622277 (Refugee)

[2017] AATA 3109

1622277 (Refugee) [2017] AATA 3109 (20 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622277

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Stuart Webb

DATE:20 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 20 June 2017 at 10:39am

CATCHWORDS
Refugee – Protection visa – Cancellation – Stateless Falili Kurd – Practice and Procedure – s375A Certificate information – Tribunal’s jurisdiction limited to the first named applicant’s claims – Non-compliance – Incorrect information supplied to the Department – Evidence of Iranian citizenship – Iranian National Identity card and Iranian Marriage certificate – Left Iran on false passports under false names – Claims nephew submitted fabricated documents to the Department – Documents viewed by the Department’s Document Examination Unit – Husband’s paternal side have Iranian citizenship by birth – Iranian citizenship through marriage – No other breaches of visa conditions
– Participates in anti-regime activities in Australia – Blacklisted by Iranian authorities – Unable to provide details of why she is a person of interest

LEGISLATION
Freedom of Information Act 1982 s37
Migration Act 1958, ss 46A, 101, 107, 109, 140, 375A, 424A, 473GB
Migration Regulations 1994, r 2.41 Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information pertaining to her citizenship status and her protection claims. The delegate considered that in the circumstances the applicant’s visa should be cancelled. 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 hearing was conducted at the same time as the applicant’s husband, [Mr A] (AAT Reference [number]). The Tribunal notes that the second named applicant, hereafter known as the applicant’s son, was also included in the review application of the applicant’s husband. The Tribunal notes that the delegate in this determination did not include the applicant’s son in the decision relating to this applicant, but included him in the applicant’s husband’s determination.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

5. The applicants appeared before the Tribunal on 12 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a [Mr B], a [Mr C], friends of the applicants, and [Ms D], who had provided interpreting services to the applicants at the family violence proceedings in 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The applicant provided the Tribunal with a copy of the delegate’s decision.

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

8. Presence of Certificates on the DIBP Files / Access to Information / Post Hearing Submission

9. The Tribunal alerted the applicant and her agent that the Department had issued a Certificate under s375A of the Migration Act for particular folios on the applicant’s file. The Certificate was issued in relation to information which it was deemed to prejudice the security, defence or international relations of Australia. The Tribunal notes that this matter relates to the cancellation of a protection visa application, which is a Part 7 matter. The s375A Certificate relates to Part 5 matters. The Tribunal finds that this Certificate is not valid. No submission was made about this Certificate by the applicant or agent.

10. The Tribunal alerted the applicant and his agent that the Department had provided information about a separate applicant. The Tribunal noted that the Department had issued a Certificate on this information. The Tribunal originally noted that the Department had issued the Certificate pursuant to the provisions of s375A of the Migration Act. The Tribunal has determined that the Department had in fact issued the Certificate pursuant to the provisions of s.473GB of the Migration Act. This provision relates to the discretion of the Immigration Assessment Authority (IAA) to disclose certain information. Again this does not relate to the work of the Refugee Division of the AAT considering a Part 7 matter. This Tribunal finds that this Certificate is not valid. The Tribunal discussed aspects of this information at the hearing and in the 424A letter. No submission was made about this Certificate by the applicant or agent.

11. The Tribunal notes that the applicant made a FOI application to the Department for documents relating to them on the file. A significant number of Folios were released to the applicant, though not all. The Tribunal notes that there are separate provisions of the Commonwealth FOI Act that govern the release of information. as detailed in a submission to the Tribunal, the applicant’s agent stated:

    However, there are several documents which have not been disclosed by the Department with respect to section 37(1)(b) of the Freedom of Information Act 1982

    FREEDOM OF INFORMATION ACT 1982 - SECT 37

    (As per relevant provisions)

    Documents fleeting enforcement of law and protection of public safety

    (1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

    (b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information in relation to the enforcement or administration of the law;

    Or

    [bolding in submission]

12. The Tribunal does not release the information on the Department file, this release of this information is conducted by the Department. The Tribunal has no power to affect a decision of the Department to not release information.

13. The Tribunal discussed relevant aspects of this information that was not released pursuant to the FOI request at the hearing and in the 424A letter. This information was not subject to any Certificate.

14. The Tribunal held the hearing with the applicant on 12 April 2017. At the hearing the Tribunal discussed the information before it, including adverse information. The Tribunal noted that due to the complexity of the matter, including the evidence of the witnesses, the Tribunal would be required to write to the applicant post hearing. The Tribunal noted that this would provide the applicant the time to respond to information discussed at the hearing. The applicant and the agent were made aware of the adverse information at the hearing.

15. The Tribunal sent the applicant the s424A letter on 28 April 2017. This has a prescribed time requirement for the response to be provided. On the day the response was required the applicant’s agent wrote to the agent and asked for an extension of time. The Tribunal wrote to the agent and advised that the Tribunal would not make a decision in this matter until after 26/5/2017, and would consider all the information before it at that time.

16. On 26 May 2017 the applicant’s agent provided a ‘part response’ to certain elements of the invitation to comment on adverse information. The applicant provided some further documents. The applicant asked for a further extension until 9 June 2017. The Tribunal did not provide this further time, noting that the Tribunal had advised the agent that it would make the decision based on the information before it after 26 May 2017.

17. The Tribunal notes that in any event the Tribunal did not finalise this matter until after the requested 9 June 2017 date for the provision of further submissions. The applicant did not provide further submissions to the Tribunal with respect to the adverse information beyond the partial response of 26 May 2017, despite the opportunity to do so, the Tribunal noting that it would make its determination on the information before it. The Tribunal considers that an extended period was provided to the applicant to respond to the adverse information, and that she chose to do it only in a partial manner.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. 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.

20. 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.

    Relevant Information pursuant to s.107 Notice

21. The s.107 Notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) of the Migration Act. Section 101 states:

    Section 101: Visa applications to be correct

    s101. 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.

22. The s.107 Notice provided details of the applicants’ circumstances. It was send on 20 October 2016.

23. The notice identified that the applicant had provided information when she applied for a protection visa on 17 June 2010, in answers provided in the Form 866C[1] and a statutory declaration as provided with the application. When asked as to her citizenship, she had written that she was stateless, that she was born and had lived in Iran, and was an ethnic Faili Kurd.

    [1] Form 866C Q’s 19, 21, 42-46, 65

24. The notice identified that the Department had received evidence of the applicant being an Iranian citizen, including a National Identity Card (NIC), her shenasnameh (Iranian birth certificate) and Iranian Marriage Certificate which identified that the applicant was an Iranian citizen.

25. The notice identified that the applicant was granted a permanent protection visa on the basis that she was stateless, and that if she returned to Iran she would be killed by the Basij because she was a stateless Faili Kurd. The notice identified the finding the in the Refugee Status Assessment (RSA) dated 26 July 2010 that the applicant’s race and nationality (or lack thereof) were the essential and significant reasons for the finding that the applicant would face a real chance of serious harm on return to Iran.

26. The notice identified that if the correct information was known, that the applicant was a citizen of Iran, the delegate who determined the RSA would not have found the applicant was stateless, and would not face discrimination. It was noted that the applicant’s claim to face serious harm at the hands of the Iranian authorities was incorrect as this claim was based on the applicant being undocumented and stateless; whereas the applicant was in fact an Iranian citizen and were so at time of the protection visa application. The notice also identified that the fear of harm in Iraq was spurious, as the applicant was entitled to reside in Iran as an Iranian citizen.  

27. A response to the notice was given by the applicant. This included a statutory declaration from the applicant, statements made to the police regarding the activities of the applicant’s nephew; information regarding an application for an intervention order against the nephew; medical evidence about the applicant and her husband; and a letter from [a] Kurdish Association of [Australian state 1].

28. The statement of the applicant said:

    I arrived in Australia in 2010 together with my husband and my [age]-year-old son. We risked our lives to flee from the persecution we suffered at the hands of the Iranian authorities. We were detained for approximately 10-11 months and thereafter resided in [a certain city]. We moved to [City 1] last year in or about July 2015.

    We were obviously to receive the allegations regarding our ethnicity and statelessness. I would like to confirm I was born in Ilam Iran on [date]. My Ethnicity is Faili Kurd and I do not have the right to reside in Iran or Iraq. Because of my ethnicity my family and I have been persecuted, assaulted, detained and denied basic human rights in Iran.

    I decided to flee Iran to ensure that my son was not exposed to the discrimination we suffered as Faili Kurds. I wanted to give him a life free of persecution and suffering and ensure that he did not go through what we experienced in Iran. There was no future for us in Iran. We had no right to work, to access health care, education and other basic human rights.

    I still maintain that I am a Faili Kurd and my family was expelled from Iraq to Iran and we do not have any identity documents in Iran or Iraq. We do not have citizenship of any country and cannot return to lean or Iraq.

    ID Documents provided by the Department

    I understand that copies of various identity documents have been provided to the Department purports to establish our identity as Iranian citizens. I am certain the documents were provided by my nephew, [Mr E].

    [Mr E] came to stay with us in February 2016 after he separated from his wife. [Mr E] stayed in my son's bedroom while we were trying to reconcile him with his wife. Two days later my son noticed that cash money he kept in his room was missing. When we discussed this with [Mr E] he became very aggressive and started yelling. He assaulted me and made threats that he would kill me. I feared for my safety so we call the police. We were asked to go to the station and in the meantime [Mr E] collected his belongings and left the house. He was later interviewed by the police and an Interim Intervention order was made against him on [date] March 2016. There was a Court Hearing on [date] May 2016. But it did not prevent [Mr E] from approaching us. He attacked me threatening to kill me and left the court house. As he threatened my husband as well he applied for an Intervention order which was granted. The final hearing is scheduled for [date] November 2016. If convicted, he may face 2 years' imprisonment and/or a hefty fine. The facts have been declared in my statement and the statements of my husband and son to the police. [Mr E] was charged with imprisonment for assaulting his wife about a year before this incident. We still have fears of his threats so we have installed security cameras around our house.

    It is for this reason that [Mr E] is very angry with us. He has promised to do everything in his power to destroy our lives (he texted my husband to that effect) and I am sure he is the one that provided the documents to the Department of Immigration. I am not certain what exactly he has provided but I know that with the help of his father who lives in Ilam, Iran and is my brother and does not have a good relationship with me would have fabricated documents to tarnish our reputation and claim for protection. I declare that these documents are not genuine but are fraudulent as I have never possessed any identity documents from Iran or Iraq.

    Our life in Australia       

    We have lived in Australia since 2010 and have been law abiding citizens, other than a few traffic infringements we have never had any legal issues.

    I suffer from numerous health issues. I have [medical conditions] and suffer from a bad back and I am on a Disability Pension. My Husband suffers from [medical conditions] and despite all that care for me. My son [is] completing his [apprenticeship]. He studies and works and has never been in trouble.

    My husband is not a well person either and suffers from a number of health issues. He will not survive in Iran.

    Our contribution to Australian society

    I am a member of the Kurdish society of [City 1] Australia and a Pejak supporter.

    My husband is also a volunteer of the Kurdish Society of [City 1] to promote Kurdish culture, language etc. and a Pejak supporter and activist. He has also been involved with political activities of the Society, We make formal complaints to the authorities, in Australia in relation to the treatment of the Kurds in Iran. My husband has done enough anti-regime activities to get us into serious trouble in Iran. My life would be in danger if I ever return to Iran. I know that my husband and I are blacklisted and the Iranian Embassy in Canberra has our names as opponents of Iranian regime. We will be arrested at the airport if we return to Iran.

    My son [has] taken advantage of what Australia offers him, completing High school and on his way to becoming [an occupation]. He also attends the Kurdish Society. Currently he works at [a business] as [an] apprentice.

    We have done our best to educate our son and make him a successful and hardworking Australian. We are proud of him and are certain that he will be an asset to Australian society.

    In the event our visa is cancelled, there will be severe consequences for me and my family if our visa is cancelled given we do not have rights to reside either in Iran or Iraq. The Australian Government will have nowhere to send us back to. This may result in long detention. I am not well and would not be able to be kept in detention. My son is only [age] years old and will not survive. He has suffered in his childhood and still has nightmares remembering our journey to Australia and the months of detention. He will not be able to deal with another disaster and cancellation of our visa will destroy him mentally and physically. This is exactly what [Mr E] is after and has promised to bring upon us.

    I would like to reiterate that we are stateless and do not have the right to reside in any countries. Being Faili Kurds we have been persecuted in Iran and we have been expelled from our home, country of Iraq. Neither country will accept us as returns and we will be in great danger if we were to return or Iran especially given our political activities,

    My situation has changed drastically. As a permanent resider of Australia, I have taken advantage of my freedom and have been and have been actively involved in the activities against the regime in Iran. I will be arrested, imprisoned and possibly killed if I am forced to go back.

    S.109 Cancellation decision

29. The delegate outlined the information that had been provided by the applicant in her Form 866C lodged on 17 June 2010, including the answers as provided at questions 19, 21, 41-46 and 65 of that form. The delegate also included information from the Statutory Declaration provided with the application form, with the claims of the applicant.

1. The delegate noted the evidence as provided to it regarding her NIC, shenasnameh, marriage certificate that identified the applicant as citizen. The delegate noted that such documents were provided only to Iranian citizens. The delegate determined that the applicant was an Iranian citizen, and had contrived the claim that she was stateless. The delegate considered that the applicant had provided incorrect information in support of her protection claim.

2. The delegate determined that had the applicant provided the correct information at the time of her protection assessment the RSA delegate would not have come to the conclusion that the applicant was a stateless person and as such suffer discrimination and hardship in Iran. The delegate considered that the applicant’s claim that she faced serious harm at the hands of the Iranian authorities is incorrect as this claim was based on the applicant being undocumented and stateless; whereas the applicant was in fact an Iranian citizen and was so at time of her protection visa application.

3. The delegate determined that the applicant had provided incorrect information in her 866C application form.

4. The delegate considered the submissions, supporting documents, and the statement of the applicant.

5. The delegate noted the submission that the documents as held by the department which stated that the visa holder is a recognised Iranian citizen, as well as confirming the visa holder's place of birth as Iran, were fabrications, submitted by an aggrieved relative. The delegate noted the information that her nephew had fabricated the images of the documents and sent them to the department. The delegate noted that the documents:

   consist of high quality photographs of many documents regarding not just the visa holder, but other members of her family as well. These documents reflect the Iranian citizenship status of three generations of the visa holder's family, family booklets showing place of birth, national identity cards, legal documents, and health insurance and banking documents. According to a departmental Identity Assessor, these documents appear consistent with genuine article. Given the large number of documents, as well as the range of them — from identity to banking and health care — I consider that it is implausible that anyone would have the wherewithal to arrange to have so many images created within a couple of weeks from when the visa holder ejected her nephew from her house to when the documents were presented to the department on 18 March 2016. The issue dates on these documents — which predate her arrival in Australia — do not support the visa holder's accusations that these documents have been fraudulently altered and/or manufactured.

6. The delegate considered the evidence that the applicant was an Iranian citizen was credible, and although it was stated that the provision of the material to the department was a vindictive act, this did not mean that the documents were fraudulent. The delegate considered it implausible that so many documents could be fabricated in the short period between the disagreement, 27 February 2016 and the lodging of the documents with the Department on 18 March 2016.

7. The delegate did not consider that the reference to Iraq in q41 of the Form 866C was relevant as the applicant was an Iranian citizen.

8. Having determined that the ground of the cancellation existed, the delegate considered whether the visa should be cancelled.

9. The delegate considered the relevant provisions whether the visa should be cancelled under Reg 2.41.

10. With respect to 2.41(a), the delegate determined that had the correct information that the applicant was an Iranian citizen, and that the applicant was not stateless as claimed.

11. With respect to 2.41(b), the delegate determined that the NIC, Birth Certificate and marriage certificate were consistent with genuine known articles, and they refuted the applicant’s claim to be stateless.

12. With respect to 2.41(c), the delegate determined that the decision to grant the applicant a Protection visa relied significantly upon the incorrect information provided by the visa holder in relation to her claimed stateless Faili Kurd identity.

13. With respect to 2.41(d), the noted that the applicant disputed there was any non-compliance and maintains she is a stateless person. The delegate considered the applicant had not put forward any reasons which may mitigate the circumstances in which the non-compliance occurred.

14. With respect to 2.41(e), the delegate considered the applicant’s situation, including the health issues of the applicant and her husband. The delegate considered that the applicant's and her husband's conditions have been diagnosed and are now considered to be settled, and that their conditions can be managed in Iran, which was said to have an excellent health system. The delegate considered the applicant and her husband could receive adequate health treatment in Iran.

15. The delegate noted the claim that the applicant had been involved in anti-Iranian government activity since being in Australia and that because of this activity her life would be in danger if she returned to Iran. The applicant claimed to be on a blacklist. The delegate noted the applicant had not provided any evidence of these activities, and questioned how she would know she was on a black list.

16. The delegate noted the school and employment factors of the applicant’s son.

17. With respect to 2.41(f), the delegate determined that the applicant responded to the Notice, but that she continued to claim she was a stateless Faili Kurd in the face of contrary evidence.

18. With respect to 2.41(g), the delegate determined that there were no other instances of non-compliance known.

19. With respect to 2.41(h), the delegate determined that 6 years had elapsed since the non-compliance. The delegate noted that this was a lengthy amount of time, however did not consider that the applicant had demonstrated that during this period she has integrated into Australian society to the point where having to depart would have a significant impact on her.

20. With respect to 2.41(j), the delegate determined that there were no known breaches of the law since the non-compliance.

21. With respect to 2.41(k), the delegate noted that the applicant was involved with the local Kurdish community. Her son had been educated and was now working in Australia.

22. The delegate noted that there were no consequential cancellations relevant to this applicant. 

23. The delegate noted that with respect to whether there were any obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, if the visa holder's visa were cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to her country of origin. The delegate determined that a decision to cancel the visa holder's visa would not necessarily cause her to be returned to her country of origin in breach of Australia's non-refoulement obligations under the Refugees Convention.

24. The delegate noted that the applicant’s son was now [age], and thus the Convention on the Rights of the Child (CROC) did not apply. The delegate also considered the ICCPR, but did not consider that the applicant’s family would be separated.

25. The delegate noted the legal consequences of the cancellation. She would be barred from making a valid application for a further visa. As an unauthorised maritime arrival, should the visa holder's Protection visa be cancelled and she becomes an unlawful non-citizen she would also be subject to Section 46A(1) and barred from making a valid application for a further visa, including bridging visas; and may be detained. Only the Minister could intervene to permit the applicant to apply for a visa. if unlawful, the applicant was able to be detained and removed from Australia. She could not return to Australia for 3 years through operation of PIC 4013. The delegate also noted the potential that the applicant could be indefinitely detained in Australia.

26. The delegate noted that:

    In making a decision in this case, I have turned my mind to the effect on the visa holder should the visa be cancelled in particular in relation to the effect of the bars and possible indefinite detention. However, on considering the effect of the visa holder providing incorrect information to the Department to gain an immigration advantage I place more weight on the gravity of the breach of section 101(b) of the At which has resulted in a migration advantage and a permanent visa being granted where she would not have otherwise been granted that visa.

27. The delegate proceeded to cancel the applicant’s visa.

    Evidence before the Tribunal

28. The applicant’s agent provided a combined submission to the Tribunal on behalf of the applicant, her husband and the applicant’s son.

29. The documents included information about the intervention orders taken out by the applicant and her husband against the applicant’s nephew. It included medical information, including evidence of seeing doctors and a psychologist[2], and her list of medications[3]. It included letters of support from [a Kurdish] Association of [Australian state 1]. It provided information about the education completed by the applicant and her family in Australia.  

    [2] AAT Folios 148-157

    [3] AAT Folios 93-147

30. The submission stated that the applicants were stateless Faili Kurds. It was stated that the applicant’s brother has been known in Iran to produce Iranian identity documents fraudulently. It was stated that there was an altercation between the applicant and her brother and nephew, and that out of malice the applicant’s nephew produced the identity documents.

31. With respect to the identity documents, it was submitted that it could reasonably be expected that identity cards are issued sequentially, and that given there was a limited number differential between the applicant’s and the applicant’s husband’s numbers, despite the 3 year age gap, it was not plausible that the ID numbers would only be 366 apart. A similar argument regarding the Shenasnamehs having a limited number difference was also raised.

32. It was submitted that there is an ongoing dispute in the family and that there have been a number of breaches of the intervention orders that are in place. It was stated that ‘with total disregard and disrespect to the court order, the actions of the nephews are an indication of the vindictive nature of what they are capable of in Australia.’

33. With respect to the information about the number and scope of documents that were provided to the Department, it was stated that:

    that applicant’s brother, [Mr F] have been infamously reputable in Iran to produce identity documents in the black market, of the highest quality having the resources, equipment, payment of bribes to Iranian officials and the general connections. These unlawful activities are all within the scope of such rings and hence, production of such identity and images in such a short time frame is realistic and, even an easy feat for [Mr F].

    The production of such documents is even moreso urgent and of priority considering the fallout between the applicant with [Mr F]'s sons [Mr E] and [Mr G]. In such a patriarchal society, it is submitted that a father will go to great lengths to protect his sons and bloodline and hence, procurement of these documents within the minimum timeframe (backdating the issuing date) to cause maximum damage to the review applicants family.

    …

    We note that DIBP has had an Identity Assessor have assessed the genuineness of the articles in issue. Even if they were produced in it's highest counterfeit quality or even if it was produced through legitimate means and through the appropriate and corrupt Iranian authorities, the applicants have never been granted Iranian citizenship or any form of Iranian permanent residency whilst residing in Iran and instruct that have always been and continue to be stateless.

34. It was submitted that the family came from Ilam, and all speak, read and write Kurdish. It was stated that there is ongoing discrimination against Faili Kurds in Iran, and that ‘it is reasonably arguable that it goes against the grain that those who are true Iraqi citizens or of Iranian nationalities, would not want to associate themselves as Faili Kurds by living in the province of Ilam, Iran, learning the Kurdish language or Faili Kurdish culture’, yet the applicants have done so.

35. It was stated that because they associated with the Kurdish association, their actions indicate that they are Faili Kurds, and if Iranian citizens, they would not have taken such steps to associate with such a group.

36. With respect to the health issues, it was submitted that ‘we accept that Iran may have an excellent health care system according to Unicef and one would be the recipient of such excellent health care, the benefits and advantages of such a system if one was an Iranian citizen.’ However it was submitted that as the applicants were not citizens they would not have access to such services.

37. It was summed up that the applicants were not Iranian citizens, that all documents provided were false and procured out of a family altercation and provided by malice, they are stateless Faili Kurds and are owed protection.

38. The Tribunal discussed the evidence of the applicant at the hearing. The Tribunal questioned why a series of documents would be presented that served to identify the applicant and her family as Iranian citizens. The applicant claimed it arose out of the dispute with her nephew. The Tribunal asked how these documents were available to be presented to the Department. The applicant stated that her brother had made the documents. The applicant claimed her husband had organised for all the documents to assist in making a passport that would allow the applicant and her family to depart. The applicant stated that passports were made in her name. She did not see the passport, when she went into the airport it was provided. She could not remember if her son had a passport. The applicant stated she left on a passport in her own name.

    Travel on False Passports

39. The Tribunal noted that this was not what was stated in the statement that her agent had provided to the Tribunal. The Tribunal noted that the applicant’s agent had argued that the applicants had come to Australia on passports with false names. The applicant continued to assert that the passport had been in her own name. 

40. The Tribunal noted information as provided in the applicant’s entry interview, conducted a month or two after she had arrived in Australia. The Tribunal noted that the applicant had stated at that interview that he had travelled on the passport with a false name. The Tribunal provided the names to the applicant. She stated that they were names of family friends, not their own. The applicant stated it could have been an interpreter mistake. The Tribunal questions why the applicant would make comments about family friends when asked about the passport she travelled on.

41. The Tribunal noted that the applicant had provided inconsistent evidence regarding her travel documents. The Tribunal put information to the applicant pursuant to the provisions of s424A of the Migration Act. The letter stated:

    At the entry interview with the Department on 1 May 2010, you said:

    ·you left Iran on [date] March 2010 on a reddish - dark brown passport with your photo in it.

    ·in this passports, your name was [first named applicant’s alias], your husband had a passport in the name of [Mr A’s alias], and your son was [second named applicant’s alias].

    ·You stated that the passport was taken from you in [Country 1] at the airport.

    In the submission made by your agent to the Tribunal dated 6 April 2017, it was stated that:

    We receive by way of instructions from the review applications that upon making arrangements with people smugglers to be smuggled out of Iran, the smugglers issued [the applicants] with false passports under the following names:

    [Mr A’s alias]; [second named applicant’s alias]; [first named applicant’s alias]

    All the review applicants admit using false names and passports as per above to be able to leave the Iranian border with a passport however, on instructions, once they arrived in [Country 2], the smugglers seized the passports.

    At the hearing with the Tribunal, you provided the following evidence:

    ·You did not travel with a passport with a false name.

    ·You did have a passport in your own name

    ·The smuggler came to the airport and gave you the passports.

    ·You travelled on a passport in your own name.

    ·You were not aware of what document your son travelled on.

    At the hearing with the Tribunal, your husband provided the following evidence:

    ·The statement that your family used false names on passports was not correct.

    ·Passports were created in your own names, created at the same time and used to travel out of Iran.

    ·He had doubts as to whether your son had his own passport.

    ·The documents that were provided to the Department on 18 March 2016 were copies of documents made at the time of departure to assist in gaining a passport.

    The information you provided is contradictory evidence with respect to the documents used to depart Iran, the issuing of a passport to your son, the names used on the passports, what happened to the passports and where they were taken from you.

    This information is relevant as it causes the Tribunal to have significant concerns about the credibility of your evidence that the documents provided to the Department were created for the purpose of assisting you to depart Iran. It demonstrates that you have provided different information over a period of time with respect to the nature of the documents that were used to leave Iran. The Tribunal may consider that your overall credibility is affected by this alternate evidence as provided by you. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine and you are an Iranian citizen rather than a Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.

42. The applicant did not provide a written response to the information. At the hearing the applicant stated that she travelled under her own name, and that it might have been an interpreter error that stated that she travelled under a false name.

43. The Tribunal has considered this information. The Tribunal notes the evidence of the applicant, provided in the entry interview in May 2010, was held a month after she arrived in Australia. The entry interview was conducted in Kurdish. She stated at that interview that she had travelled on a false passport, and provided the names to the Department of her, her husband’s and her son’s false passport names. The Tribunal does not accept that the interpreter would provide incorrect information to the Department when providing the applicant’s response to the questions about the names on the passport used to leave Iran.

44. 7 years later the applicant provided a submission to the Tribunal. In that submission it was stated that that the instructions of the applicant were ‘that upon making arrangements with people smugglers to be smuggled out of Iran, the smugglers issued [the applicants] with false passports’, and again provided the same names as provided in May 2010. The Tribunal considers that this submission provides the correct information as to the nature of the departure of the applicant and her family from Iran, the applicant had the opportunity to provide new information about her travel but instructed her agent about the false names, as included in the submission.

45. The Tribunal notes that the applicant only claimed that he had travelled on a passport in her own name at the Tribunal hearing. She had not mentioned this previously, including in the response to the s107 Notice provided to the Department.

1. Having considered the evidence, the Tribunal finds that the information as provided at the entry interview and in her pre-hearing submission is the correct information, that she and her family had left Iran on false passports in the false names as provided. The Tribunal considers that the applicant has changed her evidence at the Tribunal hearing in an attempt to explain the presence of the documents handed in on 18 March 2016.

2. The issue of the false passport is significant. The applicant has claimed that the documents provided to the Department in March 2016 were available as they were used to create a passport for the applicant and her family members to leave Iran. However the evidence of the applicant has been until the hearing that she in fact had a false passport. As she had a false passport, created by the smuggler, she would not have had documents created about her and her family’s identity created in their own names. As she had a false passport, these documents, which the applicant claimed were created to facilitate the creation of a genuine passport in her name, would not be required for that purpose.

3. The Tribunal finds that the documents that were provided to the Department on 18 March 2016 were not created for the purpose of getting a passport issued in the applicant’s name.

   The ‘false identity documents’

4. The Tribunal identified that there was a series of documents provided to the Department on 18 March 2016. The Tribunal wrote to the applicant pursuant to the provisions of s424A that:

   On 18 March 2016 37 documents were provided to the Department of Immigration (“the Department”). These were a significant number of varied and detailed documents regarding the Iranian citizenship of you, your husband and your son. These documents included National ID cards of the applicants [Mr A] and [the first named applicant]. It provided Shenasnamehs for [Mr A], [the first named applicant] and [the second named applicant]. The Shenasnameh for [Mr A] states he was born in Ilam, and included information that his father was [Mr H], with a reference to a Shenasnameh for [Mr H] included in this document.

   A series of documents were included in the name of [Mr A], including an Iranian passport; a bank card; savings booklets, including photos; health insurance booklet and form; receipt for purchase of mobile phone service; and contract for purchase of apartment, with [Mr A] named as the purchaser.

   A series of documents were included in the name of [the first named applicant], including savings booklets; health insurance booklet; [medical] reports; and a marriage certificate with [the first named applicant] and [Mr A] named.

   A series of documents were included in the name of [the second named applicant], including savings booklets; health insurance booklet; a series of school reports and family situation declaration for school.

   These are a significant number of varied and detailed documents regarding the applicants. As discussed in the delegate’s decision, the documents have been viewed by the Document Examination Unit and have been determined to be genuine items, based on the knowledge of such documents.

   At the hearing, you and your husband stated that these documents are fake and were provided by [Mr E], your nephew, who had an argument with you on [date] February 2016.

   You and your husband also stated that these documents:

   1.were created by [Mr F], your brother; and

   2.were created at the time of departure from to assist in gaining an Iranian passport, rather than created after [date] February 2016.

5. At the hearing the applicant claimed that these documents were fake and created by her brother. The applicant stated that such documents were easy to make, that in one week 1000 such documents could be created. The applicant also claimed at the hearing that the documents that were handed in were made in 2016. She stated that all the information was in the hands of her brother, that it was easy for him to create evidence. The Tribunal noted that the dispute with [Mr E] occurred in late February 2016, with the documents handed into the Department on 18 March 2016. This was not a long time to create a series of separate documents that were good enough to be considered genuine. The applicant stated that there had been a dispute in 2014, her brother wanted money, which she had refused. The Tribunal noted that there had been no reference to any dispute in 2014 in any of the submissions made, this was new information. The applicant did not explain why this had not been raised previously.

6. As detailed, the Tribunal expressed its concern about this aspect of the applicant’s claims, including why, how and by who these documents were created by. The Tribunal identified that the consequences were that the Tribunal may find the documents to be genuine.

7. The Tribunal notes that the applicant in fact did not leave Iran on a passport in her own name, but on a false passport. This means that the submissions that have been made about the creation of documents for the purpose of getting a passport in her own name would not be required.

8. Further, the number and diversity of the documentation as provided causes the Tribunal to not accept that the documents were created in the short period of time between the dispute with [Mr E] in late February 2016 and the lodging of the documents on 18 March 2016.  The creation of ‘a significant number of varied and detailed documents regarding the applicants’ that have been ‘viewed by the Document Examination Unit and have been determined to be genuine items, based on the knowledge of such documents’ would not be created in such a short period of time as a malicious act by her family members against her and her family. The documents provide evidence of an identity for the applicant, her husband and son consistent with those that would be held by a person of Iranian citizenship, including bank, insurance, health  and school documents that would ordinarily be held by a citizen. The applicant and her family did not create such documents for the purpose of getting a passport. The Tribunal does not accept that they would be created simply to be given to the Department of Immigration in Australia, as a malicious act against her family. The Tribunal considers that they existed because they had been created for genuine Iranian citizens and used for their daily lives.

9. No post hearing submission was made about the documents about the applicant, there was a limited submission about her husband. The applicant’s response to the s.107 notice noted that she was born in Ilam, Iran The Tribunal considers that the documents that have been provided are genuine documents, that the shenasnameh that has been provided is a genuine document that notes that the applicant was born in Ilam. Accordingly the information that the applicant was born in Ilam and had her citizenship from birth, as demonstrated in the shenasnameh, is correct information.

10. As Faili Kurds who are citizens, the applicant and her family will be entitled to all the documentation that is available for any Iranian citizen. The country information about Faili Kurds who are citizens states:

    3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.[4]

    [4] DFAT Thematic Report: Faili Kurds in Iraq and Iran, December 2014

11. This means that the applicant and her family would be issued with the documents as detailed in the ordinary manner, on going to school, going to the bank or to the health services. National Identity Cards are required to be held by all Iranian citizens over the age of 15[5], which explains the issuing of such cards to the applicant and her husband, but not the applicant’s son who was not yet 15 when he departed Iran.

    [5] 5.39 All nationals of Iran over the age of 15 must hold a valid National Identify Card. Initially a card is obtained from the local branch of the Ministry of Interior’s Office for National Organisation of Civil Registration (ONOCR), also known as Vital Records. Before issuance of a permanent card, applicants must present their temporary card and shenasnameh (which has been updated with their photograph attached which is done by the ONOCR). DFAT Country Information Report Iran 21 April 2016

12. The Tribunal notes that the pre-hearing submission included a discussion about the issuing of documents in certain sequential orders, and questioning the plausibility of the documentation on this basis. There was also a submission regarding the bank and insurance documents and that they were not authentic because they were released too quickly. The Tribunal notes that the documents were viewed by the Document Examination Unit and determined to be genuine. The Tribunal does not consider that the issuing of documents with similar numbers means that they are not genuine documents. Similarly, the date of bank and insurance documents does not alter the potential for them to be held by the applicants before being provided to the Department.

13. The Tribunal notes that the applicant provided a green card to the Tribunal relating to a brother ‘[named]’.[6] No submission about this document was received. It is not clear what the purpose of this document is, it may seek to show that the applicant’s brother did not have citizenship at some time. However the Tribunal notes that the applicant herself did have citizenship, as detailed in the shenasnameh and ID documents issued in her name. The Tribunal considers that these are genuine documents. The document about her brother is not relevant in the circumstances.

    [6] AAT Folio 198

14. The Tribunal finds that the documents that have been provided to the Department are genuine documents issued in Iran to the applicant, her husband and her son. The Tribunal finds that these documents demonstrate that the applicant, her husband and her son are Iranian citizens.

    The creation of the documents

15. The applicant claimed her brother, a [Mr F], had created the documents. The applicant claimed that [Mr F] had kept copies of the documents that had been created and had supplied these to his son [Mr E], who had provided the documents to the Department. The applicant’s submission claimed that [Mr F] was well-known as a person who created false documents. The submission stated that [Mr F] was infamously reputable in Iran to produce identity documents in the black market, of the highest quality having the resources, equipment, payment of bribes to Iranian officials and the general connections.

16. The Tribunal noted its concerns about the evidence that a man called [Mr F] was responsible for the creation or provision of documents for the applicants. The Tribunal noted that the applicant had claimed that a work colleague of her husband had put the applicant’s husband in touch with the smuggler, and the applicant had made no mention of [Mr F] being involved in the creation of the documents when she arrived in Australia. The applicant stated that she was not asked, her brother’s friend made the documents. The Tribunal expressed its concern that the applicant would leave out such an important person, her brother, in the circumstances of the creation of the document.

17. The Tribunal also noted that the applicant and her husband had in fact never mentioned the applicant had a brother called [Mr F]. The applicant had provided detailed information in her entry interview and protection application about her family. The applicant had not made any mention of [Mr F] in these documents, which caused the Tribunal to have concerns that he actually existed. 

18. The Tribunal noted that the applicant had provided inconsistent evidence regarding her evidence about the involvement of [Mr F] and the creation of documents to leave Iran. The Tribunal put information to the applicant pursuant to the provisions of s424A of the Migration Act. The letter stated:

    Your husband has provided the following information about your siblings to the Department:

    He provided a Form 866 and a Form 80 on 17 June 2010 as part of your protection visa application, which contained attachments with details about his and his wife’s family[7].  In these attachments you identify your [brothers-in-law].

    [7] CLF[file number] Folios 48-52

    You provided the following information to the Department about your family composition:

    On 1 May 2010, you took part in an entry interview, conducted with the assistance of a Kurdish interpreter. At this interview you listed your siblings including those who had the same mother and father as [siblings’ names and years of birth deleted]. You also identified that you have half-brothers, from your father’s second wife, called [half-brothers’ names and years of birth deleted].[8]

    [8] [Department file number] Folio 99

    You provided Form 866 and a Form 80 on 17 June 2010 as part of your protection visa application, which contained attachments with details about your family[9]. In these attachments you identified your sisters [and] your [brothers][10], [names deleted].

    [9] [Department file number] Folios 115-116

    [10] [Footnote deleted].

    This information is relevant to the review because there is no reference in any of these materials, provided over a period of time by you and your husband separately, to you having a brother called [Mr F]. The Tribunal considers that if you had a brother called [Mr F], you and your husband would have mentioned him in these documents. If the Tribunal relies on this information in making its decision, it may consider that [Mr F] is not your brother, that he does not exist, and that you have fabricated this evidence to support your claims that the documents given to the Department on 18 March 2016 were fake. The consequence of this is that the Tribunal may find that those documents are genuine and that you are an Iranian citizen rather than a stateless Faili Kurd, and this would be the reason or part of the reason for affirming the decision under review.

    How you obtained documents to depart Iran

    In your entry interview you stated that your husband worked with a [Mr I]. You said [Mr I] had a friend who could help make arrangements to leave Iran, and he organised the passport.

    In your husband’s entry interview with the Department on 1 May 2010, he said the arrangements to depart Iran were made by a smuggler called [name deleted]. His work colleague [Mr I] put him in contact with [the people smuggler], who then made the documents.

    This information is relevant as it contradicts your claim at the hearing that your brother [Mr F] was involved in creating the documents that allowed you and your family to come to Australia. The Tribunal may determine that if [Mr F] did exist and did assist in the creation of documents to assist you to depart Iran, you would have mentioned this at the entry interview, when asked specifically about the arrangements made to depart Iran, including the creation of a passport for you to depart. You did not do so.

    The Tribunal may determine that this is further evidence that no person by the name of [Mr F] exists, and that you have fabricated this evidence to support your claims that the 18 March 2016 documents were fake; or in the alternative, if [Mr F] does exist, he did not arrange the documents to enable you to depart Iran, which throws doubt on your explanation that the documents were created at an earlier point in time and may cause the Tribunal to doubt your overall credibility. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine, that the numbers on the documents are genuine, and that you are an Iranian citizen rather than a stateless Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.

19. The applicant provided no written response to this information. At the hearing the applicant stated she had mentioned to immigration about him.

20. The Tribunal has considered this information. The Tribunal notes that the claim that the father of [Mr E], a [Mr F], created the documents on behalf of the applicant was raised for the first time in the pre-hearing submission of the applicant’s agent. In the response to the s107 Notice it was stated that her brother does not have a good relationship with the applicant and would have fabricated documents to tarnish the applicant’s reputation. At the hearing the applicant changed this story and claimed that the documents were created by her brother on their behalf, and provided to the Department to cause them trouble in Australia. The Tribunal notes these are different explanation as to why the documents were created.

21. In the entry interview the applicant in fact provided information about the manner in which her husband made arrangements to leave Iran, naming a work colleague of his who assisted him to find a people smuggler. As detailed, the applicant’s husband had stated that it was this smuggler who provided the false passports used by the applicant and her family to depart Iran. There was no reference to any family member being involved in the creation of documents used to assist the applicant and her family to depart Iran. The Tribunal considers that the applicant would have referred to her brother in these circumstances if he had been a party to the creation of documents or a passport to assist the applicant to leave Iran.

22. The Tribunal considers that the applicant would have mentioned [Mr F] if he had been involved in the creation of documents for her and her family. The Tribunal does not accept that the applicant would mention her husband’s work colleague and a people smuggler, but fail to mention a family member whom it is now claimed is ‘infamously reputable in Iran to produce identity documents’. The Tribunal considers that had the applicant used such a family member for such a purpose she would have referenced this person, but did not do so. The Tribunal considers that the applicant has concocted the claim that a [Mr F], her brother, was involved in the creation of the documents, either on their behalf or to tarnish the applicant’s reputation. The Tribunal considers that the applicant has concocted this claim in order to seek to explain how the documents were provided to the Department. The Tribunal does not accept that a [Mr F] was involved in the manufacture of or provision of identity documents for the applicant or her family.

    Other Family Members being Iranian citizens

23. The Tribunal provided further information to the applicant pursuant to the provisions of s424A. This was in relation to information provided to the Department by a [Mr J] and [Mr K]. The applicant identified that [Mr K] was a nephew of her husband. The applicant claimed that [Mr J] was known to her but was not related.

24. The Tribunal noted that:

    The Department has identified [Mr J] and [Mr K] who claim to be your husband’s paternal nephews. The Department has assessed [Mr J]’s identity through an identity interview conducted with [Mr J] in October 2014 and found that, given information by him at the hearing that his paternal grandfather was [Mr H] (your husband’s father) and that his paternal uncles were [names deleted]. The Department identified that [Mr K] was a paternal cousin of [Mr J] who had a shared family member, a paternal uncle [Mr A] (your husband). The Department has assessed that the family on [Mr J] and [Mr K]’s paternal side have Iranian citizenship by birth. This would include your husband and your son. 

    This information is relevant because it may demonstrate that your husband and your son have Iranian citizenship through right of birth, and you have Iranian citizenship through marriage. The consequence of this is that the Tribunal may conclude that you provided incorrect information that you are a stateless Faili Kurd in Iran

25. The applicant in response stated that:

    [Mr J] is not a paternal relative and have no relation to the applicant. They became friends through the Kurdish community.

    The applicant verifies that [Mr K] (and not [another person]) is the son of [the applicant’s husband’s] brother: [Mr L] and therefore, the applicant and [Mr K] have a direct uncle — nephew relationship.

    We have been instructed that the applicant refutes that [Mr J] is a direct, indirect relative or a relative at all because if he was indeed a paternal cousin to [Mr K], then culturally, [Mr J] should carry the same paternal [surname].

    We have been instructed and as stated at the Tribunal hearing that culturally, many juniors would title and address their seniors as Aunty or Uncle as a mark of respect regardless of whether there is a direct biological relationship or linear age. Hence, the mere fact that [Mr J] addresses the applicant as Uncle [is] made out of respect.

    Further to instructions, the applicant confirms that [Mr K] is his nephew and that [Mr K]'s mother is a citizen of Iran.

    However, on submission, the very fact that [Mr K]'s mother holds Iranian citizenship does not confer her husband or her son Iranian citizenship through marriage or child bearing respectively.

    We submit by way of inference that [Mr K]'s father, [Mr L] and his mother could not register their marriage or seek special permission from the Iranian Government because their marriage would be legally prohibitive because [Mr L] was stateless. According to the above Iranian civil laws, because of [Mr L]'s statelessness as a Faili Kurd, this statelessness would be conferred onto his son, [Mr K].

    Hence, [Mr K] is the [applicant’s husband’s] nephew and that he was conferred statelessness through his father, [Mr L]'s stateless status and that, [Mr J] is merely a friend through the Kurdish community and there is no relation between he and the applicant.

    Again, the applicant instructs and re-confirms that he was born in Baghdad, Iraq on [date]. He himself was never granted Iraqi citizenship nor Iranian citizenship because of his ethnicity as a Faili Kurd. From the applicant’s statelessness, this status is automatically conferred onto DRA and hence, his statelessness as well. With respect to applicant’s wife, despite her and applicant’s marriage in Iran, they could not register their marriage with the Iranian authorities given their statelessness.

100.   At the hearing the applicant stated she knew [Mr J] but he was not a relative, he was a friend of her son.

101.   The Tribunal has considered this information. The Tribunal notes that [Mr J] had identified the applicant’s husband as his uncle in an identity interview conducted as part of [Mr J]’s claims for protection and to ascertain his identity, including of [Mr J]’s citizenship. It was in the course of this interview that information was ‘elicited from [Mr J]’ with respect to his paternal family, which included [Mr H], his paternal grandfather, and his paternal [uncles]. This information conforms with the applicant’s husband’s own evidence regarding his family.

102.   The Tribunal notes that the information provided by [Mr J] was not provided with the applicant’s husband’s circumstances in mind, that it was provided independently and by chance included these references to the applicant’s husband’s being a paternal uncle. It was provided in October 2014, well before there were any other documents provided to the Department in March 2016, and well before there was any dispute with family members from the applicant’s side. [Mr J] does not appear to have any motive to falsely identify the applicant’s husband as his uncle, he was discussing his family members generally when he identified the applicant’s husband as a paternal uncle.

103.   The response to this information as provided by the applicants was they refuted the statement that [Mr J] was a relative and that it was a term of respect to address their seniors with terms such as Aunty or Uncle regardless of whether there is a direct biological relationship.

104.   The Tribunal considers that this may be so, there may be a respectful term for a family member that uses the reference of uncle or aunt. However this is not what is stated in this instance, that [Mr J] identified the applicant’s husband as his paternal uncle at the same time as identifying the applicant’s husband’s two brothers as paternal uncles as well. The Tribunal considers that the term in this instance is not being respectful but identifying an actual blood relationship.

105.   The Tribunal notes the statement that the person mentioned, [Mr K], is a cousin, and the claim that [Mr K]’s mother has citizenship. It was submitted, correctly, that citizenship is not passed through the mother.

106.   However, the Tribunal again notes that this does not respond to the information as put, that ‘the Department has assessed that the family on [Mr J] and [Mr K]’s paternal side have Iranian citizenship by birth’. This means that the paternal side, not the maternal side of the family have citizenship by birth, meaning that [Mr J]’s father’s side, including the applicant’s husband’s, and [Mr K]’s father [were] citizens. The Tribunal considers that the admission that there was Iranian citizenship for [Mr K]’s mother does not alter the fact that [Mr J] identified that the male side of his family were Iranian citizens as well.

107.   The Tribunal finds that the applicant’s husband has not been truthful regarding his blood relationship with [Mr J]. The information as provided by [Mr J] was given in a completely different context and well before the dispute with [Mr E] and [Mr G] occurred. The information provided by [Mr J] provides corroborative evidence completely unrelated to the documentary information provided in March 2016 regarding the citizenship of the applicant’s husband and her son.

Pejak Support

108.   The Tribunal noted that the applicant’s husband has now claimed to be a supporter of the Pejak party. The applicant however made no such claims. She stated that she was not a supporter of Pejak. She was involved in the Kurdish local association. The Tribunal has considered this claim in the discretionary factors below.

Was there non-compliance as described in the s.107 notice?

109. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: Incorrect answers to questions, including the answers as provided at questions 19, 21, 41-46 and 65 of that form. The delegate also included information from the Statutory Declaration provided with the application form, with the claims of the applicant.

110.   The Tribunal has considered the explanation of the applicant that her brother created the documents that were handed into the Department on 18 March 2016, that they were provided by angry relatives who promised to destroy their lives. The Tribunal notes that it has not accepted this explanation, the Tribunal considers that the documents that were provided are genuine documents that demonstrate that the applicant and her family are in fact Iranian citizens. The Tribunal accepts that the disclosure of this information to the Department has been done in a malicious manner, however that does not mean that the documents are false. The Tribunal further notes that there is separate evidence that the applicant’s husband and son are Iranian citizens provided by another family member on the applicant’s husband’s side who has not been involved in the dispute with the applicant’s nephews.

111.   The Tribunal finds that the documentary evidence as provided by aggrieved family members, that identifies the applicant, her husband and son as Iranian citizens, are genuine documents that reflect their status in Iran. The Tribunal considers that the information on the documents that references the applicant as having a National Identity number is an accurate reflection of the applicant’s citizenship. The Tribunal finds that the applicant is a citizen of Iran.

112.   The Tribunal considers that the applicant has provided incorrect information with respect to her citizenship. The Tribunal considers that the applicant has incorrectly indicated in his protection visa application that she is stateless, when the correct information is that he is a citizen of Iran. The applicant has stated this in answer to questions 19 and 21 of the Form 866C she completed.  The applicant has provided further incorrect information about her circumstances in the statutory declaration lodged with her protection visa application and referred to in questions 41-46, and 65 of her Form 866C.  The applicant has included this information in her Protection visa application as lodged in June 2010. The Tribunal considers that the applicant’s answers regarding her nationality and not being able to return to Iran for fear of persecution are incorrect.

113. For these reasons, the Tribunal finds that there was non-compliance with s101(b) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

114. 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).

115. 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

·     the content of the genuine document (if any)

·     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 circumstances in which the non-compliance occurred

·     the present circumstances of the visa holder

·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

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

·     the time that has elapsed since the non-compliance

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

·     any contribution made by the holder to the community.

116.   Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

117.   The Tribunal has considered these elements in its consideration as to whether the decision to exercise the discretion to cancel the applicant’s visa. The Tribunal has also considered some further circumstances in its deliberations as to whether the visa should be cancelled or not. The Tribunal discussed the provisions of Regulation 2.41 with the applicant.

2.41(a) – the correct information

118.   With respect to 2.41(a), the Tribunal considers that the correct information is that the applicant is a citizen of Iran.

2.41(b) – the content of the genuine document (if any)

119.   The applicant has claimed that the documents as provided by the applicant’s nephew were fake and created for the purpose of getting a passport to travel to Australia. However as noted, the applicant did not in fact have a passport issued to her to travel to Australia, she in fact travelled on a passport with false names, as she has stated on her arrival in Australia and in the submissions to the Tribunal.

120.   As detailed above, the Tribunal has considered the evidence of the applicant and does not accept her submissions regarding the documents as provided. The Tribunal considers that the documents provided by the applicant’s nephew to the Department of Immigration are genuine documents that demonstrate that the applicant and her family members are Iranian citizens.

2.41 (c) – whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document

121.   The Tribunal notes the information in the delegate’s decision that states that the claimed fear of harm from the Iranian authorities due to her statelessness, having no identity documents and no right to reside in Iran because of her statelessness, was fundamental to the decision that she was a person to whom Australia has protection obligations. The Tribunal stated at the hearing that her claims for protection as detailed in the delegate’s decision clearly claim that the applicant is a stateless Faili Kurd who did not have documents or the right to reside in Iran. The applicant’s claims regarding her identity and citizenship were fundamental to her claim. 

122.   The decision of the delegate to grant the protection visa has relied on the incorrect information for the grounds to be granted a protection visa. The Tribunal considers that, if the correct information about the applicant’s citizenship status and experience in Iran as a citizen with documentation had been provided, the applicant would not have been granted a protection visa.

2.41(d) – the circumstances in which the non-compliance occurred

123.   The applicant has not conceded that she has not complied and provided incorrect information. However, as detailed, the Tribunal considers that the applicant provided incorrect information about her circumstances on her arrival, in her claims for protection, and subsequently maintained the incorrect information with the Department and the Tribunal submissions.

124.   The Tribunal considers that the applicant has knowingly provided incorrect information from the day she provided false information with respect to her citizenship to the Department. The applicant has then continued to provide this incorrect information as part of her protection application for the purpose of gaining a visa. She has continued to rely upon her claim of statelessness.

2.41 (e) – the present circumstances of the visa holder

125.   The applicant has provided information about her and her husband’s health concerns. The applicant provided information from a psychologist about the applicant suffering from depression and anxiety.[11] It was submitted she had further health issues of [conditions deleted]. Further information was provided about the applicant’s husband’s health.[12] A series of documents about medication was also provided. The applicant is not currently working, she is receiving a disability pension from Centrelink.[13]

[11] AAT Folios 150-157

[12] AAT Folio 149

[13] AAT Folio 88

126.   The Tribunal discussed the health services available in Iran. The Tribunal noted that though the system of health may not be equivalent to that of Australia, it was well respected. As discussed at the hearing, the country information demonstrates that there are adequate services available for Iranian citizens.

Iran has a well-structured healthcare system, with basic healthcare available to the entire population. Healthcare and public health services are provided through a nationwide network. This consists of a referral system, starting at primary care centres in the periphery going through secondary-level hospitals in the provincial capital and tertiary hospitals in major cities. The healthcare provided by the Iranian government generally only covers low-cost, basic healthcare services. An extensive network of public clinics offers basic care at low cost, and general and specialty hospitals operated by the Ministry of Health and Medical Education provide higher levels of care.

Iran has a large social protection system, including 28 social insurance, social assistance, and disaster relief programs. These benefit large segments of the population. Social coverage is provided by government social safety net programs, charity institutions and non-profit organisations. A number of para-governmental organisations (bonyads) provide social services to ‘low-income groups’. [14]

[14] Iran: CI170405151314474 – Healthcare – Public housing – Social welfare; Healthcare in the Islamic Republic of Iran’, Tahsili, Z and Brand, L, Lex Arabiae, January 2010, CX316432; Iran Country Brief’, World Bank Group, September 2010, CX259854 

127.   The Tribunal notes that some of the documents provided to the Department demonstrate the access to the health services for the applicants in Iran.

128.   The submission of the agent conceded that Iran has an excellent health system according to UNICEF if one was an Iranian citizen. The submission and the applicant and her husband have stated that they will not have access to such services because they are not Iranian citizens. However, as determined, the Tribunal has found that they are Iranian citizens, so therefore do have access to such services.

129.   While not as developed as the services that are in Australia, the Tribunal considers that these services are of a standard that would provide for the applicants as needed, and the applicants will not be deprived of services such as health and welfare programs.

130.   The Tribunal considers that as an Iranian citizen the applicant has access to medical services in Iran. The country information about Faili Kurds who are citizens states:

3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion[15].

[15] DFAT Thematic Report: Faili Kurds in Iraq and Iran, December 2014

131.   The Tribunal does not consider that the applicant’s health circumstances are a reason that the applicant’s visa should not be cancelled.

132.   The applicant also provided information about a series of intervention orders that have been made by [a] Magistrates Court against [Mr E] and [Mr G]. The first of these orders was made [date] March 2016, which the Tribunal noted was after the documents had been handed in to the Department on [date] March 2016. Subsequent orders have been continued, and the applicant has provided documents regarding the ongoing dispute.[16]

[16] AAT Folios 158-182, 209-216

133.   The Tribunal notes that the applicant provided an application by [Mr E] for an intervention order against the applicant and her husband, where [Mr E] stated that ‘when the respondent came to Australia he lied to immigration about their nationality to get a permanent visa’ and that he ‘told immigration the truth about her not being full Kurdish.’[17]

[17] AAT Folios 212, 216

134.   The witness, [Ms D], stated that she had assisted the applicant during the matters at the Magistrates Court with interpreting. She had seen the applicants arguing with [Mr E], who had stated that he would make the applicants regret causing problems for him, that immigration will become aware very soon. The Tribunal noted that this confrontation at court took place after the documents had been given to the Department.

135.   The Tribunal asked the applicant what visa status [Mr E] and [Mr G] had. The applicant stated that she believed that they were on Bridging Visas and were waiting for permanent visas. The Tribunal noted that the disclosure of information about the applicant and her husband and son may adversely impact on  [Mr E] and [Mr G] themselves, as the documentation pertaining to the applicant would show that she is an Iranian citizen, making it likely that they were citizens as well.

136.   The Tribunal has considered this information. It would appear that a significant family breakdown has occurred, and that the argument before [Mr E] and [Mr G] and the applicants has required intervention orders to be made. The applicant has claimed that this dispute will continue in Iran, which will be considered further below. The Tribunal notes that this dispute, which commenced over allegations of a theft, has escalated. The Tribunal accepts that this dispute would cause the applicants a significant amount of distress, given the familial connections.

137.   However it is also clear that without the dispute the correct information about the applicants, and the [relatives] in general, would not have been disclosed, that the documents that been provided to the Department would not have been handed over.

138.   While the Tribunal accepts that the applicant and her family have been affected by the dispute that has led to intervention orders being issued, the Tribunal considers that it has limited relevance to the consideration of the discretion whether or not to cancel the visa.

139.   The Tribunal has also considered the circumstances of the applicant’s son, who has been affected by the consequential cancellation of his visa. He came to Australia as a child, though is now over [age]. He will be materially affected by any decision to cancel his visa, he has made a life in Australia and is contributing to the community. He has created his own life, he is [an] apprentice, working for [a business], paying tax and had recently bought some land to build a home. As part of his apprenticeship he is studying at TAFE. He was in a relationship with an Australian citizen. The Tribunal places some weight on the circumstances of the applicant’s son.

140.   The applicant has also stated that she has been involved in the Kurdish community association in Australia. She has submitted that she believes that she and her husband will be considered as ‘anti-Iranian’ and on a blacklist with the Iranian Embassy.

141.   At the hearing the applicant claimed that she had been anti-Iran and a supporter of PEJAK party. The applicant stated she had been involved in English courses, demonstrations and ceremonies in Australia with the Kurdish community organisation.

142.   The Tribunal questioned how the Iranian Embassy would have any knowledge of the applicant such that she would be placed on a blacklist by them. The applicant stated there were spies for the Iranian government who would provide names. However the applicant could not explain why she would be of such interest to the authorities to be noticed in this manner, such that she would be placed on a blacklist by the Iranian authorities.

143.   The Tribunal accepts that the applicant may be a supporter of reformist policies within Iran. The Tribunal does note that the situation for Faili Kurds in Iran has been difficult, in particular for those without official recognition. However as noted, DFAT has made an assessment of the situation for Faili Kurds who are citizens of Iran. The country information about Faili Kurds who are citizens states:

3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.[18]

[18] DFAT Thematic Report: Faili Kurds in Iraq and Iran, December 2014

144.   The Tribunal does not consider that the applicant’s activities in Australia in the Kurdish community, would lead her to be a person of interest to the Iranian authorities. The applicant is a middle aged woman on a disability pension who is involved in her local community organisation, the Tribunal does not consider that her involvement with that organisation would lead to her being a person of interest to the Iranian authorities, let alone placed on a blacklist. The Tribunal does not accept that the applicant’s activities would lead to her being placed on any ‘blacklist’ by the Iranian authorities. The Tribunal places no weight on the applicant’s political interests, Kurdish community activities or support for any organisation.

2.41(f) – the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act

145. The applicant provided a response to the s107 Notice as provided to her and her husband. The applicant did not concede that incorrect information had been provided by her at any time. She has maintained that she is a stateless Faili Kurd who most recently resided in Iran.

146.   As detailed, there has been two separate sets of information provided independently that contradict the statement of the applicant that she is a stateless Faili Kurd. There are the documents that have been provided, an explanation for which the Tribunal has not accepted. The Tribunal has determined that these are genuine documents

147.   The applicant has had opportunities to provide the correct information to the Department and the Tribunal. She has not done so. The Tribunal places some weight on this non-compliance by the applicant.

2.41 (g) – any other instances of non-compliance by the visa holder known to the Minister

148.   The Tribunal is not aware of any other instances of non-compliance by the applicant.

2.41 (h) – the time that has elapsed since the non-compliance

149.   It is almost 7 years since the non-compliance occurred, when the applicant lodged the documents in June 2010 that led to her being granted a protection visa. This is a reasonable period of time and the Tribunal places some weight on this in its consideration

2.41(j) – any breaches of the law since the non-compliance and the seriousness of those breaches

150.   There is no information before the Tribunal that the applicant has breached Australian law in any aspect.

2.41(k) – any contribution made by the holder to the community

151.   The applicant stated she has been involved in her local Kurdish community. The witness [Mr C] stated that the applicants had been very active in this community, and the applicant had helped other people within the community. The witness [Mr B] stated that the family are generous and honest. The Tribunal notes that the community association of the applicant has been within her own ethnic group and not in the broader community. The Tribunal has taken the applicant’s contribution to her community into account.

152.   The Tribunal does note that the applicant’s son has completed a number of qualifications[19] and has been developing as [an occupation]. The Tribunal places some weight on the applicant’s son’s circumstances.

[19] AAT Folios 184-189

Other relevant factors

153. The prescribed circumstances as listed under Reg 2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.

Australia’s International Obligations

154.   The applicant has made submissions that she is a Stateless Faili Kurd, who did not have the right to reside in Iran or Iraq. It was stated that she had been mistreated in Iran, and had decided to leave Iran so her son would not be exposed to the discrimination that was suffered by Faili Kurds. The Tribunal has not accepted this submission, having determined that the applicant has not been honest with respect to her citizenship in Iran.

155.   An International Treaties Obligations Assessment (ITOA) was not completed by the Department. The delegate determined that this would be done in the event the applicant was being removed to his country. The Tribunal considers that this practice is inappropriate and does not comply with the legal guidance from the Courts as to the exercise of the discretionary factors in the cancellation of visas.

156.   The Tribunal does not have the power to avoid such a consideration and pass it off as the delegate has to a potential future assessment. The Tribunal is required to assess the international obligations that may exist in the circumstances. In the applicant’s circumstances, this includes  whether Australia has non-refoulement obligations to the applicant’ in respect of whom Australia has under the Refugees Convention, the Convention against Torture and Other Cruel Inhuman Treatment or Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR).

157.   The Tribunal discussed Australia’s international obligations at the hearing. The applicant maintained that she was not an Iranian citizen. The Tribunal discussed country information about Faili Kurds at the hearing. The Tribunal notes that the applicant’s claims for protection predominantly raised issues of the plight of unregistered Faili Kurds, the difficulties that they faced without documentation and the problems from officials and unofficial groups such as the Basij militia.

158.   The Tribunal noted at the hearing that this information is relevant as it demonstrates that the applicant can be recognised as an Iranian citizen as an ethnic Faili Kurd. The Tribunal noted country information from the UK Home Office ‘Country Information and Guidance Iran: Kurds, from August 2015, that stated that the level of discrimination faced by Kurds in Iran is not such that it will reach the level of being persecutory or otherwise inhuman or degrading treatment. This is the supported by the assessment as made by DFAT in their December 2014 assessment, included above. 

159.   The Tribunal has found that the applicant, her husband and her son are Iranian citizens. The Tribunal accepts that ethnically the applicant, her husband and her son are Faili Kurds, however as citizens they do not face the discrimination and mistreatment that non-citizen Faili Kurds face. The applicants used this difference to found their protection applications and, as detailed above, this was the main reason for the successful application for protection.

160.   The Tribunal considers that the applicants will be able to provide evidence of their citizenship to any enquiry made by officials or paramilitary organisations like the Basij. The Tribunal considers that as they can demonstrate that they are citizens of Iran they will not be harmed by the authorities or Basiji on return to Iran as Faili Kurds, nor face discrimination amounting to serious or significant harm for reason of their ethnicity.

161.   The Tribunal notes the claim of the applicants that they support the Kurdish community, that they remain part of the Faili Kurd community in [Australian state 1] and participate in activities that condemn the abuse of human rights against Kurds in this region of the Middle East.[20] The applicant has stated she supports Kurdish political interests. The applicant claimed she would be arrested at the airport if he returned to Iran.

[20] AAT Folio 190

162.   The Tribunal has considered this aspect of the applicant’s circumstances. The Tribunal accepts that as a Faili Kurd the applicant would be supportive of groups that promote Faili Kurd and Kurdish interests. The Tribunal does not consider that the applicant’s Iranian citizenship precludes her from being part of a Kurdish association in Australia.

163.   However the Tribunal does not accept that the applicant’s involvement with or support for Kurdish organisations has or will lead to her being a person of interest to the Iranian authorities.

164.   The Tribunal notes DFAT’s assessment of being a Kurd with political interests in Iran. This states:

3.25 DFAT considers that most Iranian Kurds either do not come to the attention of authorities or are subject to only low levels of adverse attention by the state. Those who attempt to publicly assert cultural or political rights that are perceived to threaten the constitutional foundations or the territorial integrity of the Islamic Republic have an increased risk of coming to the attention of the state.[21]

[21] DFAT Country Information Report Iran 21 April 2016

165.   The Tribunal does not accept that the activities of the applicant, which have been confined to her involvement with Kurdish organisations in Australia, would cause the Iranian authorities to have any interest in her. The Tribunal does not consider that these activities would place her on a blacklist, arrest her on his return to Iran or consider that she threatens the constitutional foundation or territorial integrity of Iran. The Tribunal does not accept that being a supporter of such organisations in Iran means that the authorities will wish to harm the applicant or her family on their return to Iran. The Tribunal notes that DFAT’s view of the reformist movement sees high profile leaders being monitored and harassed, that for example, since 2011, opposition movement leaders Mir-Hossein Musavi, Mehdi Karrubi and Musavi’s wife, political activist Zahra Rahnavard, have been under house arrest[22], however determined that:

3.69 Overall, DFAT assesses that, whilst official concerns about the Green Movement have receded from public view with the passage of time, the regime remains highly sensitive to the movement, labelling it as ‘sedition’. People who were actively involved in the movement remain at some risk, depending on their degree of involvement, of on-going official attention.[23]

[22] Ibid at 3.66

[23] Ibid

166.   The applicant and her family have not been actively involved in the Green Movement or reformist groups. The Tribunal considers that the authorities would not monitor the applicant or her family for this reason.

167.   The Tribunal finds that the applicant and her family will not be harmed because of any political interests or ethnic associations on return to Iran.

168.   The applicant has claimed that the family dispute in Australia would continue on return to Iran, that the family members on her side that are aggrieved would seek to harm her and her husband. It is clear from the documentation from the Court that there is a feud that has resulted in orders being made, accusations of threats and money being stolen. This has also led to the situation that the applicant’s migration status has been imperilled, as has the other family members.

169.    As detailed above, the Tribunal has significant concerns with the evidence of the applicant and her husband regarding the applicant’s family connections. As has been detailed, the applicant and her family have repeatedly failed to identify the family member in Iran who they say is now behind this dispute and what they claimed were disclosure of false documentation. The applicant has not included him in her statements about how she came to Australia and who her family members are, this person in Iran has only appeared when the applicant has made submissions regarding the cancellation of the visa. The Tribunal has serious concerns about the claims that this particular family member exists, and that he has the influence that the applicant states he has.

170.   However the Tribunal does accept that the disagreement in Australia would cause there to be some dispute in Iran, the applicant and her family angry that their incorrect information being disclosed in the manner that it has, causing the cancellation of their visas and ending their living in Australia. The Tribunal notes the court orders that have been made in Australia by the applicant and his family, and his wife’s nephew, and the arguments that have occurred in Australia that have been reported to the police and court. The Tribunal accepts that would cause some recrimination on return to Iran. However there is a significant difference between having an argument and recrimination within a family to it becoming something violent and harmful to the family. The Tribunal does not accept that family members will seek to threaten and harm the applicant and her family on their return to Iran because there was a dispute over some money in Australia. The Tribunal does not accept that the family will be targeted because the court orders that have been made in Australia. The Tribunal does not accept that the family will be targeted because of this dispute or because of any migration issues that have arisen from the provision of documents. The Tribunal further notes that there is a police force in Iran which is active and can provide assistance where criminal acts are alleged. DFAT states that:

5.2 Iranian security forces are conspicuous in many aspects of Iranian life. An extensive network of police, security and intelligence services exercises effective control over almost all areas of the country. The key forces in internal security are the Police, the IRGC, the Basij, the Army and Ministry of Intelligence and Security forces.[24]

[24] Ibid

171.   The applicant, as a citizen of Iran, would be able to approach the authorities if she was being threatened with criminal conduct by family members. The Tribunal considers that there is no impediment for the applicant to approach the authorities, should she choose to do so, and would receive the assistance that any Iranian citizen would receive on request. The Tribunal finds that the family dispute is not a reason why the applicant and her family cannot return to Iran.

172.   The Tribunal does not consider that the effect of the cancellation would be to return the applicant to Iran in breach of Australia’s non-refoulement obligations, as arise out of UNCAT and the ICCPR; or in breach of any obligations arising under the Refugees Convention or complementary protection provisions as found in the Migration Act 1958.

173.   The Tribunal has further considered the Convention on the Rights of the Child (CROC) is relevant in these circumstances, whereby the best interests of the child shall be a primary consideration[25]. Family unity has also been identified as a relevant matter which arises from both the CROC and ICCPR, include considerations of the importance of preserving the family unit and not separating children from parents, as detailed in the delegate’s decision.

[25] Article 3 of the Convention on the Rights of the Child

174.   The applicant’s son was a child when he arrived in Australia. However he is now over 18 and working to establish his own life. The Tribunal considers the CROC does not apply in this circumstance.

175.   With respect to the consideration as to family unity, the Tribunal notes that the applicant’s son is dependent upon his parent’s visas to remain in Australia. The cancellation of his parent’s visas causes his own visa to be cancelled, and he will not be permitted to remain in Australia. Considering the family unity, the Tribunal considers that the unity will be maintained by the applicant’s son returning to Iran with his parents. 

176.   The Tribunal finds that no international obligations are relevant in the circumstances of the applicant or her family.

Effect of the cancellation

177.   The Tribunal understands that the effect of affirming the cancellation would cause the applicant to be barred from applying for further visas, and may lead to the applicant being detained as an unlawful non-citizen. There is the prospect that the applicant and her family will face indefinite detention by virtue of the cancellation of their visa. The Tribunal notes that the applicant and his wife have various health issues that they are receiving treatment for, and it is therefore unlikely to be indefinitely detained while making preparations for departure from Australia. The Tribunal considers that the applicant will be able to obtain a valid Iranian passport by demonstrating she is an Iranian citizen, and thus she has the ability to depart Australia. The applicant’s husband and son will also be able to have Iranian passports issued to permit them to travel.

178.   Therefore, the Tribunal finds that indefinite detention is not a possible consequence of the cancellation decision.

Conclusion

179. The Tribunal considers that the applicant provided incorrect information when she was going through the process of being permitted to apply, then applying for a protection visa in Australia. She provided incorrect information about her citizenship, and has continued to provide this. Her claims for protection are also not correct, given her citizenship, which gives her, her husband and son entitlements as ordinary citizens in Iran. Country information discussed with the applicant, at the hearing, and in the processes at the Department level supports a determination that that she will not be harmed on return to Iran. The Tribunal finds that the applicant has provided incorrect information in breach of s.101(b) of the Migration Act, and thus is in breach of this provision of the Act.

180.   The provision of incorrect information that led to a grant of a visa is a serious issue. The information is relevant to the application of Australia’s law with respect to permission to enter and reside in the Australian community. Departure from those laws must be taken seriously in any consideration as to whether a visa holder should be entitled to continue to hold that visa, and deliberate breaches of the law should be given significant scrutiny in determining whether the visa should remain.

181. In conclusion, after considering all the circumstances of this case, including the circumstances of the applicant will face returning to Iran, including the health issues, and after considering the prescribed factors pursuant to r.2.41 of the Regulations, and all other factors discussed, the Tribunal finds that the seriousness of the applicant’s actions to deliberately provide incorrect information in the application, without which she would not have been granted a permanent visa, outweigh the factors in favour of not cancelling the visa.

182. The Tribunal is conscious that the cancellation of a visa, in particular the nature of the visa under consideration in this matter, is a very serious matter. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

183.   The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.

184.   The Tribunal has no jurisdiction with respect to the other applicant.

Stuart Webb
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

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.