1700180 (Refugee)

1700180 (Refugee) [2018] AATA 1440 (9 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700180
COUNTRY OF REFERENCE:                  Iran
MEMBER:Mr S Norman
DATE:9 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 09 April 2018 at 2:58pm

CATCHWORDS
Refugee – Protection visa – Iran – Cancellation of family’s protection visas – Iranian citizen married to a stateless Kurd and stateless children – False information provided – Immediate family are Iranian citizens – Family well settled in Australia – Australian citizen grandchildren – Health conditions
LEGISLATION
Migration Act 1958, ss 46, 100, 101, 107, 109, 140
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 December 2016, to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the (Iranian citizen) applicant provided false information that she would be persecuted in Iran due to her association with her husband and two children who are stateless. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 10 April 2017 to give evidence and present arguments. The applicant’s son [also] attended the hearing as an observer and in support of the applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS/EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Other circumstances of the case
Four persons from the same family (including the applicant) appeared before the presently constituted Tribunal on one or more occasions at three separate hearings (either as applicants or witnesses). The family members were the father/husband ([Mr A] – AAT# 1700048), the present applicant, the son ([Mr B]), and the daughter ([Ms C] - AAT# 1700046). The first three applicants appeared before the present Tribunal regarding the cancellation of their Protection visas. The daughter appeared before a differently constituted Tribunal, for the review of the cancellation of her Return Residence visa.
All four applicants agreed (at the hearing of [Mr A]) to the Tribunal considering the evidence from other family members, in each case. That is, [Mr A], the applicant and [Mr B] (the first three persons), all requested the Tribunal to take account of the evidence of [Ms C] (the daughter) prior to finalising their cases. The daughter also issued the presently constituted Tribunal member, permission to consider all evidence in her case.
Next, all applicants requested the Tribunal publish its decisions for all applicants at or around the same time. As the case of [Ms C] has recently been finalised, the presently constituted Tribunal is now able to finalise the cases of the first three persons.
Opportunity to put evidence and submissions
By medical letter dated [May] 2017, it was claimed the applicant suffered depressive anxiety symptoms, claimed to have been caused by the cancellation of her visa. At hearing, the applicant also said she was stressed and distressed by her present status, by her husband’s health, by the health of her son [Mr D] and by her own health circumstances. She also referred to having a poor memory. She also said she attended a psychologist once or twice per fortnight. However, after having discussed her case at hearing, in the presence of her migration agent, I am satisfied the applicant was given a real opportunity to put evidence and submissions in support of her case.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.
The applicant’s Protection visa (PV) history
On 13 January 2010, the applicant (her husband and two of her children) arrived [as] an irregular maritime arrival. The applicant said she was born on [date] in [Iran]. She claimed to be a Shia Muslim and an Iranian citizen. She said she was married to [Mr A] (a stateless Faili Kurd) in 1984. She said that she and her husband had two children [Mr B] (born [date] - a stateless Faili kurd); and [Ms C] (born [date] - also a stateless Faili kurd).
On 12 February 2010, the applicant provided answers in relation to her Refugee Status Assessment (RSA). She swore that the information she provided was correct. Apart from the information referred to above, she said:
The applicant’s marriage to a stateless Faili Kurd
·     The applicant said she feared that if she returned to Iran she would be harmed because she is an Iranian citizen married to a stateless Faili kurd;
·     her husband had worked as a labourer with her father who was a “[occupation]”. If he worked for other persons he would not be paid properly, he had no insurance, had no identification and he could not do anything about it;
·     she married her husband in 1984 in Ahvaz, and she knew he had been deported from Iraq. The marriage was eventually agreed to by the applicant’s father. She said “in those days some elders would certify they were witnessing the marriage then that document could be certified as the marriage certificate”. About eight years ago there were some new rules for people like the applicant that if they had such a certificate they could exchange it for a proper marriage certificate. The applicant did this in the city of Ghom. She said this did not assist in the “issuing of the ID or the birth certificate” for her two children or husband;
·     the applicant said the law in Iran had been changed so that if a person did not have a birth certificate or had not done military service then they were not allowed to marry. She said her children did not have a birth certificate and they have no rights even though they were born in Iran and their mother (the applicant) is an Iranian citizen;
·     the applicant said that children without a birth certificate may be detained by the “religious police”. This may particularly be the case when males and females are walking together in the street. She said the family would need to bring evidence to show they are related. She said she had no such evidence because her children had no birth certificates. She said the Basij are powerful and do not answer to any organisation.
·     the applicant also said she was concerned about her husband’s health. He has had [medical conditions]. This had caused him problems with his memory and he had also “gotten very stressed”;
·     she said that when her husband’s health deteriorated in 2003, he started working as a street vendor as he could not work in [his industry]. As a street vendor he was in danger and on ‘most days’ the Basij would attack the street vendors. She said that around seven or eight months ago (in 2009), they were attacked by the Basij and they came and grabbed [the items] and ran away. She said she injured her shoulder and leg and back ‘badly’, when she was escaping and had fallen while jumping over a small creek.
Women in Iran and the applicant’s daughter ([Ms C]):
·     The applicant said that as a woman she had few rights in Iran, especially with the Basij who always look at women with their hijab (head scarf). She said that many times she was not wearing her hijab correctly or she was wearing make-up and she was questioned;
·     She said she was never arrested but she had heard that other woman had been arrested and she was very scared;
·     the applicant said women in Iran find it difficult to obtain employment unless they are “cooperating with the regime”. She said she had no training or proper education so it was very difficult for her to find work. She said even educated women have difficulty finding work unless they were “cooperating with the regime, such as doing spying for them”;
·     she said State protection would not be provided to women in Iran;
·     the applicant also said that once her daughter ([Ms C]) was badly assaulted by the Basij. The applicant claimed pressure was put on her daughter to undertake a sexual act and that if she did not comply she would be detained at the prison (though the Tribunal understands that [Ms C] was released without harm). The applicant said many girls had been treated this way particularly where they did not have identification. The applicant said one of their relatives was “married to an officer within the station” (at the time of [Ms C]’s detention) and [Ms C] told the Basij about the relationship and she was released. This occurred some 8-9 months before the applicant’s Statement of claim (for the PV) but that [Ms C] was “too shy to tell this at her entry interview with the Department”.
·     The applicant also claimed that [Ms C] “suffers greatly as a stateless woman in Iran”; including that she had lost her right for a proper marriage.
The applicant’s son ([Mr B]):
·     The applicant said her son was assaulted many times by the Basij. She referred to street vendors (which work the son had undertaken) being harassed by the Basij;
·     she said her son had been arrested “a few times, most recently being in 2009, about six months ago”, and even though the Basij took the items for sale, they (the family) had to “pay money to have him released”. She said when he had been detained he was assaulted. She said this was ‘normal’.
The applicant’s religion (Shia Muslim):
·     The applicant said many people do not consider themselves a Muslim anymore.
The delegate noted that on 13 April 2010, the applicant’s RSA recommended she be determined a refugee. She was invited to apply for a PV, and on 14 April 2010 the applicant lodged the PV form. In her PV form, when asked what she feared may happen to her in her country of reference (question 43); when asked who she thought would harm or mistreat her should she return (question 44); when asked why she thinks this will happen to her in Iran (question 45); when asked whether she thought the authorities would assist her (question 46); the applicant said “please see RSA statement”. The applicant also swore that all information she provided was true and correct.
The applicant and her husband and her two children were subsequently granted PVs on 15 April 2010.
New evidence – the applicant’s son ([Mr E] /[Mr E Alias 1]’s) citizenship
On 7 January 2015, the Department obtained information which contradicted material claims provided by the applicant. The Department noted the applicant’s husband had subsequently provided information about family members that had not been disclosed by the applicant in her PV form. Based on that new information, the Department considered the applicant had another son named [Mr E] born [Date 1] (or [Mr E’s Alias 2] – DOB [Date 2] – who more recently changed his name to [Mr E Alias 1]).
[Mr E] (also referred to herein as [Mr E Alias 1]), was granted a Temporary Protection Visa (TPV) on 17 December 2001. On 28 February 2002, [Mr E] then lodged an application for a permanent PV. In his PV `form, when asked if there were any close relatives who were NOT in Australia and not included in his PV application, [Mr E] referred to the applicant, her husband and his siblings as citizens of Iran. That means, the delegate (and now the Tribunal) was satisfied the names listed in [Mr E]’s PV application were very similar to the names of the family members provided in the applicant’s PV form and in her husband’s PV form. [1]
[1] Tribunal – folio 7 (reverse side).
In his PV form, [Mr E] said he had departed Iran lawfully on his own passport; and that he had completed his military [service]. According to country information considered, only Iranian nationals are required to undertake military service. However, it was more recently claimed that [Mr E] had obtained false Iranian documents, and he was not an Iranian citizen.[2] The country information stated:
5.37 Key Iranian identification documents (a birth booklet known as the shenasnameh and National Identity card) are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use. It might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran.[3]
[2] Tribunal – folio 7 (reverse side).
[3] DFAT Country Information Report, Iran, 21 April 2016.
The country information also stated that by operation of Iranian nationality law (Article 976), children acquired their Iranian citizenship from their father. It is therefore possible that [Mr E] could have acquired Iranian through his father (the applicant’s allegedly stateless husband).
The applicant also said that many persons have been able to obtain Iranian citizenship through various means, “mostly by payment of bribes to the corrupt authorities”. That being said, [Mr E] had departed Iran well before the applicant and before sophisticated safeguards were in place. For instance, the country information stated:
5.38 The Iranian National Identity Card was introduced in 2000. In June 2008 it became compulsory for obtaining a passport and driver’s license and opening bank accounts. Features of the NID include, on the front of the card in descending order, the bearer’s unique identity number, given name, family name, date of birth and number of shenasnameh. On the reverse of the card is the residential (numerical) code of the bearer, validity date and the numerical identifier for the issuing office.
…..
5.46 Iranian passports are issued to nationals of Iran for the purpose of international travel. Passports serve as proof of Iranian citizenship. Iran has issued diplomatic and service biometric passports since July 2007. Ordinary biometric passports have been issued since February 2011.[4]
[4] DFAT Country Information Report, Iran, 21 April 2016.
Post hearing submissions lodged on behalf of the applicant included a statutory declaration dated 4 May 2017 from [Mr E Alias 1]. That stated inter alia he was not an Iranian citizen; the Iranian documents he lodged which corroborated (as he had previously sworn) that he was an Iranian citizen were false; he only provided this information on the advice of his people smuggler; he was a stateless Faili Kurd; he did not change his name by deed poll (shortly prior to the arrival to Australia of other family members) to disassociate himself from his other family members; and that everything claimed in his family member’s files was correct.
However and with respect, and given that [Mr E Alias 1]/ [Mr E] had until recently sworn that he was an Iranian citizen on arriving in Australia, it might appear that he is prepared to now provide any evidence (true or false) that he hopes may assist his family. While this may be understandable, the Tribunal is not satisfied this makes him a credible witness.
That being said, and given [Mr E] had initially named immediate family members (the applicant and other family members) as citizens of Iran; and this was at a time when there was no apparent benefit in him so doing – I am satisfied that the subsequent claims to the contrary are false. This is one of the reasons that satisfied the Tribunal the applicant’s immediate family members are citizens of Iran; and the applicant’s claims relating to this are false.
New evidence – the applicant’s brother-in-law ([Mr F]’s) citizenship
The brother of the applicant’s husband ([Mr F] – a.k.a. [variation of Mr F’s name][5]), arrived in Australia in April 2013 as an irregular maritime arrival. He was accompanied by immediate family members (his wife and daughter). Each member of the family declared that they were Iranian citizens. Five months after arriving in Australia, [Mr F] requested permission to depart. He was issued a Lassiez Passer by the Iranian Embassy in Canberra in order to facilitate his travel and he apparently returned to Iran. The Department (and now the Tribunal) believes the brother-in-law’s capacity to obtain a Lassiez Passer was a strong indicator of his Iranian citizenship.
[5] Tribunal – folio 6.
In his PV form, the brother-in-law referred to his parents ([names deleted]) and that his parents had [several] children in total. [Sentence deleted]. However, the applicant’s husband only referred to one [sibling]; and his parents’ names were noted as [names deleted].
As did the delegate, the Tribunal notes the substantial similarity between some of the names provided, and particularly the names of the applicant’s husband, sister and parents-in-law. After considering the evidence, the Tribunal is satisfied this indicates the applicant’s allegedly stateless husband has a brother who is an Iranian citizen. Further, if the brother-in-law obtained Iranian citizenship through his own father (something the applicant disputed), then the applicant’s husband would also have obtained Iranian citizenship.
When discussed at hearing, the applicant accepted the brother-in-law was related to her but her husband and his brother ‘do not have much to do with each other’. She said the brother-in-law was also a member of Sepah. The Tribunal put to her that it had not seen information that indicated that non-citizens were allowed to be members of Sepah. The applicant believed same was possible. The country information stated inter alia:
2.14 The Army of the Guardians of the Islamic Revolution (usually referred to as ‘sepah’, the ‘pasdaran’, the ‘Islamic Revolutionary Guard Corps’ or ‘IRGC’) plays an important role in the Iranian economy. The IRGC is a large military/security/political/economic organisation whose role is to ‘defend’ the Islamic Republic and Revolution. This role extends to protecting the regime from internal dissent and foreign interference, international covert action and maintaining control over sensitive industries…[6]
[6] DFAT Country Information Report, Iran, 21 April 2016.

However, and while the Tribunal accepts that Sepah may (ie) have access to non-citizen informants in Iran, none of the country information in any of the sources cited herein, has satisfied the Tribunal that non-citizens can join Sepah. Given the brother-in-law was claimed to be a member of Sepah, and given the other evidence cited above, these are further reasons that have satisfied the Tribunal the brother-in-law is a citizen of Iran. They are also further reasons that have satisfied the Tribunal the applicant’s immediate family, are citizens of Iran.
Omission of the applicant’s two sons from her PV form
Next, as well as [Mr E]/[Mr E Alias 1] (discussed above), the applicant also only later referred to a second son who was also not declared on her PV form - being [Mr D] (DOB [deleted]).[7] At hearing, when asked why she had not mentioned these two sons in her PV form ([Mr E Alias 1] or [Mr D]), the applicant conceded she had not mentioned either of these two sons in her PV form, based on the advice of her people smuggler.
The applicant’s response to the NOICC:
[7] Tribunal – folio 4 (reverse side).
On 12 August 2016, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) of her Protection visa. The Department delegate (the delegate), noted that section 101(b) of the Act, provided that “a non-citizen must fill in his or her application form in such a way that … no incorrect answers are given”; and that based on the information set out above, the applicant may have provided incorrect information in her visa application forms.
In response to the NOICC letter, the applicant said inter alia she needed to see all documents submitted with her PV form as she could not rely on her memory (these had not been provided at the time of the Department decision); she disagreed with the Department’s use of information (“for the sole purpose of presenting a set of forceful and insurmountable cancellation grounds”). A further email dated 12 December 2016, repeated much of which is set out above, and also said the applicant’s son had been expelled from school on several occasions (due to being a stateless Faili Kurd in Iran).
The applicant also referred to errors in the NOICC. These were that her husband’s date of birth was [date] not [date]; that her mother-in-law’s correct name is [name corrected]. However, given the applicant conceded that she had omitted to provide correct information to the Department in support of her PV, the Tribunal is not satisfied the errors were as claimed by the applicant. Further, even if the errors were accurately identified by the applicant, the Tribunal is not satisfied they were more than very minor, and that they do not have any material impact on the NOICC.
The Tribunal makes the following preliminary findings:
After having considered the evidence, the Tribunal is satisfied the applicant intentionally provided false information to the Department about the citizenship of her husband ([Mr A]) and her two children ([Mr B] and [Ms C]). The Tribunal is satisfied the applicant, her husband and two children are citizens of Iran. In the circumstances, the Tribunal also finds the applicant, her husband and their accompanying two children, departed Iran lawfully on passports in their own name.
Next, after having considered the evidence, and given the applicant’s concession, the Tribunal is also satisfied the applicant intentionally provided false information about her family composition on her PV form. That is, I am satisfied she intentionally failed to refer to two of her sons (being [Mr E] (or [Mr E Alias 2]) – DOB [Date 2] (aka [Mr E Alias 1]); and [Mr D] - DOB [deleted]).
As s.100 of the Act states, it is not relevant whether the false information was provided intentionally or inadvertently. However, in the circumstances of this case, the Tribunal is satisfied the applicant has breached s.101(b) of the Act by providing incorrect information for the PV and in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in 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.
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.
Regarding the prescribed circumstances set out in r.2.41 of the Migration Regulations
· The correct information:
For reasons set out above the correct information is that:
othe applicant’s immediate family are citizens of Iran.
o[Mr E]/[Mr E Alias 1] and [Mr D] are the applicant’s sons and citizens of Iran.
o[Mr F] is the applicant’s brother-in-law and a citizen of Iran.
As Iranian citizens, the applicant’s family have the same rights and opportunities as all Iranian citizens.
·the content of the genuine document (if any)
This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on section 101, not on s.103 (relating to bogus documents).
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The applicant said the information provided in her PV was correct and that she would not be able to return to Iran for the reasons she claimed. However, the Tribunal is satisfied the applicant and her family are Iranian citizens and therefore the decision to grant her a PV was based on, wholly or partly, incorrect information. Further, the applicant had conceded that incorrect information had been provided to the Department, on the advice of her people smuggler. The Tribunal does not accept this is a reasonable justification for the deception by the applicant.
· the circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred are that the applicant claimed to have suffered persecution in Iran for reasons that have now been rejected as false. She had also failed to refer to two sons (one of whom had formerly held a TPV in Australia); and therefore she had failed to provide her full family composition as she had been asked. As stated herein, the Tribunal does not accept the reason for attempting to deceive the Department (based on advice by her people smuggler), justifies the deception.
· the present circumstances of the applicant
The Tribunal has discussed much of the applicant’s circumstances elsewhere in this decision. However, in part she said that one son in Australia ([Mr E]/[Mr E Alias 1]) is ‘now a proud citizen’ and he has an Australian citizen wife and a [son]. [Mr E]’s wife was expecting their second child. [Mr E] runs a [business] and employs [people]. He had visited his brother ([Mr D]) in [Country 1] on two occasions. The Tribunal accepts this to be correct. The applicant also said all her children are law abiding. She also said her daughter ([Ms C]) had married an Australian citizen (though this is not correct based on evidence from [Ms C]); and that her other son ([Mr B]) had married an Australia citizen (though his wife is a permanent resident) and than had one child. Based on the evidence before it, the Tribunal accepts [Mr B] is married with child[ren].
That being said, the Tribunal accepts that along with the above information, and after around eight years in Australia, the applicant has substantial connections to Australia.
· the subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal notes that it is now satisfied the applicant provided, and continued to provide, false information about the citizenship of her family.
· any other instances of non-compliance by the applicant known to the Minister
Based on the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister, other than those discussed herein.
·the time that has elapsed since the non-compliance
Around eight years have elapsed since the applicant arrived in Australia. The Tribunal give this substantial weight in favour of the applicant. Further, and based on the evidence herein, the Tribunal accepts the applicant’s children have substantially established themselves in Australia, and that the cancellation of the visas would be disruptive for them (one of her children and some of her grandchildren are now Australian citizens) as well as being disruptive for the applicant.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal has no evidence of any breaches of the law since the non-compliance, other than those discussed herein.
· any contribution made by the holder to the community.
The applicant did not address this in her response to the NOICC letter. When discussed at hearing, the applicant did not claim to belong to any clubs, organisations or groups in Australia. She said she acted as a full time carer for her sick husband. She agreed that she and her family lived quietly in Australia.
· other issues (including protection claims)
There is no evidence before the Tribunal that persons in Australia would have their visas impacted by the cancellation of the applicant’s visa.
Regarding CROC, the applicant has one son ([Mr E]) who is an Australian citizen with an Australian citizen wife and child, and one son ([Mr B]) with an Australia citizen or permanent resident wife and Australian citizen child/s. However, the sons ([Mr B] and [Mr E]) and their Australian citizen wives are the principal carers of the applicant’s grandchildren. The Tribunal understands the applicant’s daughter has no children.
Regarding mandatory legal consequences, if the applicant’s visa is cancelled, she would be subject to s.46(1) of the Act. That would bar her from making a further application for a visa in Australia unless the Minister exercises their non-compellable discretion. If her visa is cancelled the applicant would also become an unlawful noncitizen and liable to detention and removal. However, she could apply for a Bridging visa to remain in the community in order to finalise her affairs. Further, I do not accept the applicant would be subject to indefinite detention in Australia, as I am satisfied she could safely return to Iran.
The Tribunal also understands that the cancellation of the applicant’s visa is not a decision to remove the applicant from Australia and that an International Treaties Obligations Assessment may be completed by a Department officer before a decision was made to remove the applicant.
Next, the Tribunal wishes to state that given all the findings herein, including the willingness of the applicant to deceive the Australian authorities, I am not satisfied she is a generally credible witness. An assessment of protection claims follows:
The applicant’s (and [Ms C]’s) gender in Iran
The applicant claimed to fear harm in Iran for reason of her gender. At the hearing the Tribunal put to her that based on the country information it had seen,[8] I may not be satisfied that without more, women in Iran have a real chance of suffering serious or significant harm. The applicant then referred to her daughter and the fact of her being allegedly stateless. She said that if her son and daughter travelled together, they may be questioned by the Basij until it could be established they were brother and sister. She also said that in Australia, she did not wear a hijab. However, and as stated at hearing, these were laws that impacted all women in Iran, and after considering her evidence, the Tribunal was not satisfied that wearing a hijab in Iran would give rise to serious or significant harm for her. The Tribunal also notes the daughter ([Ms C]) safely returned to Iran on four separate occasions after arriving in Australia.
[8] Including but not limited to DFAT Country Information Report, Iran, 21 April 2016; and UK Home Office, Country Information and Guidance - Iran: Women, Version 1.0, February 2016.
The applicant also referred to being under pressure and referred to her son [Mr D] (discussed below) and her husband’s health (also discussed below). However, after having considered the country information, nothing stated by or on behalf of the applicant satisfied the Tribunal that she (or [Ms C]) would suffer serious or significant harm for reason of her gender on return to Iran.
The applicant’s children ([Mr B] & [Ms C])
Regarding the claimed harm to her children, at hearing when repeatedly asked, the applicant said the harm that her children and husband suffered, was due to their being stateless Faili Kurds in Iran. The Tribunal suggested that country information before it stated inter alia:
2.9 … Government policies which encouraged a higher birth rate during the Iran-Iraq war of the 1980s have resulted in a high proportion of Iran’s population being under 30 years. This youth bulge means there is a high demand for employment and encourages changing social media usage, fashion and music interests.[9]
[9] DFAT Country Information Report, Iran, 21 April 2016.
Therefore, there may be other reasons that her children may have been harmed in Iran (ie western dress or other matters). The applicant then again confirmed the reason that her children were harmed was due to their status as stateless persons. As the Tribunal is satisfied the applicant’s children are citizens of Iran, I reject as false that they were harmed as claimed or for the reasons claimed. The Tribunal is not satisfied the children (or the applicant) have a real chance of suffering serious or significant harm in Iran for any reason discussed above.
The Tribunal also notes that [Mr B] and [Ms C] had been detained due to walking together but once their sibling relationship had been established, they were released unharmed. The Tribunal is not satisfied that some ten years later, they now have a real chance of suffering any harm for this reason in Iran.
The applicant’s husband
When discussed at hearing, the applicant said she feared harm in Iran because of her association with her stateless husband and children. The issue of her family being stateless, was central to the Department decision to grant her a PV. For the reasons stated herein, the Tribunal is satisfied the claim that her husband and children were stateless, is false.
The applicant claimed her husband suffered harm in Iran (including in employment). She repeated this was because her husband was a stateless Faili Kurd in Iran. However, as the Tribunal is satisfied the applicant’s husband is a citizen of Iran, I reject he was harmed as claimed or for the reasons claimed. The Tribunal is not satisfied the husband (or the applicant) has a real chance of suffering serious or significant harm in Iran for any reason discussed above.
The applicant’s non-practise of Shia Islam
Regarding the applicant’s claim that many people in Iran do not consider themselves a Muslim anymore, the Tribunal put to her (words to the effect) that reports on Shia Islam in Iran frequently note the lament of the Iranian clergy that much of the population not only fails to attend mosque but that they also do not perform their daily prayers.[10] This has not, however, resulted in any kind of backlash against such persons or of the enforcement of such obligations in the same way that local authorities enforce bans on public dress codes and displays of intimacy (codes which apply to all persons in Iran regardless of their religion).[11] However, the applicant then said that she and her husband are Shia Muslims and she does not fear harm for this reason in Iran. After considering the country information, the Tribunal accepts this to be correct and the applicant does not have a real chance of serious or significant harm in Iran, for reason of her religion.
[10] CISLIB17095: Baktiari, B. ‘Iranian Society: A Surprising Picture’, in: The Middle East Institute, The Iranian Revolution at 30, 29 January 2009, p.80; CX130987: ‘IRAN: Drugs and prostitution “soar” in Iran’, BBC News, 6 July, 2000.
[11] CX153188: Swiss Refugee Council, ‘IRAN: Christians in Iran’, 18 October 2005.
Given I am not satisfied the applicant is generally credible, I do not accept any adverse attention was directed at her (or her family) due to a lack of religious practise. Further, based on the country information, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reason of her lack of Shia Islam religious practise.
[Mr B]’s claimed political opinion
Post hearing submissions lodged by the agent on behalf of the applicant included ‘[Mr B]’s [social media] entries[12] as proof of his [claimed] political views and social media presence’ in Australia; however that evidence was in Farsi. When then approving a request for an extension of time to provide further evidence, the Tribunal advised the agent it cannot read any language other than English and evidence not in English should be translated otherwise it would not be taken into account . No translations were received.
[12] Which information was claimed to have been “transmitted in a highly intricate communication labyrinth” – see HRA in Iran letter of 18 April 2017.
Regarding the claim to post material on [social media], further post hearing submissions did allege the information was critical of the Iranian government. However, this was in contrast to the [Mr B]’s lack of knowledge about his alleged activities online (when discussed at hearing) and the Tribunal notes there does not appear to be any reference to the [Mr B] being named online. When one of the lodged documents was considered, it appeared a reference was made to the Persian calendar date [Farvardin] 1396 (which in the Gregorian calendar is [April] 2017 – ie immediately before the PV cancellation hearing). After considering this evidence, the Tribunal is not satisfied it is evidence of a political opinion and neither do I believe [Mr B] had or has any intention of repeating same; or importantly, that he was identified. More importantly, the Tribunal was not satisfied [Mr B], who operated a [business], and had a wife and infant children, had much if any time to engage with such activities in Australia (something [Mr B] did not dispute at hearing).

In the circumstances, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reason of [Mr B]’s alleged activities online in Australia.
[Mr D]’s claimed political opinion
The applicant said her son [Mr D] ([Mr D] - DOB [deleted]) was a political activist.[13] The applicant said her son [Mr D] had joined a peaceful struggle for ethnic Arab regional autonomy (known as Khalgh-e-Arab). It was claimed that [Mr D] was now a refugee in [Country 1]. It was claimed he was hospitalised ‘since 2010’ as a result of having sustained “some suspicious injuries during a short trip to [another country]. The cause of those injuries led him sinking into a deep camera for about 18 months or so, remain unknown”. It was claimed he had previously been jailed in Iran and departed illegally “across the border”.
[13] Tribunal – folio 4 (reverse side).
When discussed at hearing, the applicant said that [Mr D] had departed Iran around 2006. When asked why she had not mentioned [Mr D] (or his situation) previously (including in her PV form), and given the Tribunal assumed that even a people smuggler might understand that [Mr D]’s claimed circumstances may have assisted her case, the applicant referred to the people smuggler; that she was stressed; and that she wished to focus on those who had accompanied her to Australia. The Tribunal also noted that [Mr D] had departed Iran around 5 years before the applicant, her husband and two accompanying children had departed Iran and travelled to Australia. When discussed further, the applicant said her two accompanying children ([Mr B] and [Ms C]) were in their teenage years when they left Iran and they were being harassed due to [Mr D]’s political activities (most of which had allegedly been undertaken outside Iran).
The Tribunal does not accept it plausible the applicant would not have understood (and relatively shortly after arriving in Australia and being placed in immigration detention) that having a political activist son could assist her case. The Tribunal also notes that in its own experience, many Iranian persons were travelling by unauthorised routes from Iran to Australia and that many had claimed to have family members both inside and outside Iran – and it therefore did not appear plausible the applicant would not have mentioned her son’s claimed activities after discussing it with the Iranian cohort arriving in Australia as irregular maritime arrivals. Also, and given the applicant had apparently paid a considerable amount of money to travel to Australia (with three other members of her family), it did not appear plausible (words to the effect) she would have omitted telling about [Mr D]’s political activities, if same were true. The Tribunal rejects the evidence about [Mr D]’s political activities as false.
The Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for any reason discussed under the above sub-heading.
[Ms C]’s claimed political opinion
The daughter ([Ms C]) said that in the last (around) 18 months, she had been [details deleted].
It was claimed the daughter claimed she was publicly named on the website (as [name] –not her real name). She claimed that her contact details were also listed on the website or [social media page] (and her real name was listed in her email address published on that site). At the hearing, the daughter eventually conceded she had not [details deleted].
[Ms C] provided written claims after the Tribunal hearing (including in a statutory declaration). She said she was attempting to obtain letters in support about her [work] but she believed she had been critical of the Iran government (however, no further evidence of same was lodged). In a subsequent statutory declaration, she had said she did not fear the Iran government, only the Iran people due to being stateless (which the Tribunal accepts is evidence she had not been critical of the Iran regime). She believed the fact she was issued four visitor visas to Iran was evidence she was not a national (though the Tribunal remains satisfied the applicant and [Ms C] are citizens of Iran). [Ms C] said that in Iran she did not have to work or appear in public places (when she had returned), but the Tribunal understands she was still able to visit her partner’s family and attend for [medical] treatment in Iran (which is apparently cheaper for her). She was terrified on one occasion when she was questioned at the airport in Tehran (but she apparently was released unharmed and allowed to travel).
Post hearing submissions included evidence of [Ms C]’s “Iranian visa’s inserted on her Convention Travel Document” when she returned to Iran (though this did not cause her to be questioned by the Iran authorities on three return trips to Iran).
After considering the evidence, the Tribunal is not satisfied that [Ms C] has a real chance of suffering serious harm in Iran, for any reason she claimed.
Based on the evidence before it, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for any reason arising from [Ms C]’s claimed activities.
The applicant’s brother-in-law [Mr F]
The Tribunal is sufficiently satisfied the applicant is not a credible witness, that I have rejected any claimed fear (arising from [Mr F’s] engagement with the Basij or Sepah, his political opinions or any other material claim), as false.
Based on the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering harm in Iran, for any reason relating to [Mr F].
The applicant and her husband’s health in Australia
The applicant said her husband would not be able to afford medication and medical treatment in Iran and may likely pass away; she wishes to live with her ill husband and her children in Australia; that her children are given a national identity in Australia.
The applicant said that for the past 6-7 years she had been providing full-time care for her ill husband. She said he had [medical conditions] over the past 18 years. She did not wish to expose him to stress and anxiety relating to the “prospects of visa cancellation”. She fears this news will have a devastating impact on his health. He presently is “on a strict regime of high dose medications to control his [medical condition]” and other medicines. He had already had [surgery]. The applicant said she herself suffered from osteoporosis and she “had a terrible fall approximately 3 years ago and fractured [her bones]”. The Tribunal accepts the evidence about the applicant’s and her husband’s health.
At hearing, the applicant’s migration agent referred to poor health services in Iran, stating that same were not as good as in Australia, that the applicant’s and her husband’s health would be put at risk, that the applicant could not afford medical treatment in Iran, that same would have to be paid for. The country information stated:
2.9 Figures from UNDP’s 2015 Human Development Report indicate that Iran's health system provides an average 8.9 physicians per 10,000 people. Total estimated health expenditure is 6.7 per cent of GDP. According to the same report, Iran has an average life expectancy at birth of 75.4 years and over the period 2010-2015 experienced average annual population growth rate of 1.3 per cent, with a fertility rate for women of 1.9 births. Government policies which encouraged a higher birth rate during the Iran-Iraq war of the 1980s have resulted in a high proportion of Iran’s population being under 30 years. This youth bulge means there is a high demand for employment and encourages changing social media usage, fashion and music interests.[14]
[14] DFAT Country Information Report, Iran, 21 April 2016.
A BMC Health Services Research article reported in 2011 that Iran was ‘advanced in terms of health and education’, with the national health insurance system covering ‘more than 90% of the population, although some payments, such as fees for non-medical psychiatric treatments, are not covered by the health insurance’.[15] The World Health Organization stated in November 2008 that a ‘significant proportion’ of the population of Iran ‘is now covered by accessible, affordable and acceptable mental health care’.[16] A 2015 Umeå University medical dissertation stated, however, that government expenditure on mental health services in Iran was insufficient. It noted that therapeutic interventions were ‘usually biological’ and that ‘about 53% of the population has free access to essential psychotropic medicines, and do not have to pay for medication out of their own pocket’.[17]
[15] Forouzan, A S, Ghazinour, M, Dejman, M, Rafeiey, H and Sebastian, M S 2011, ‘Testing the WHO responsiveness concept in the Iranian mental healthcare system: a qualitative study of service users’, BMC Health Services Research, vol. 11, p.3 < Accessed 19 August 2016 <CISD9559B12315>
[16] World Health Organization 2008, Islamic Republic of Iran: Nationwide integration of mental health into primary care, 26 November, p.125 < Accessed 18 August 2016 <CIS956B8881609>
[17] Forouzan, A S 2015, Assessing responsiveness in the mental health care system: the case of Tehran, Umeå University, p.11 < Accessed 18 August 2016 <CISEC96CF14803>
Further, mental health services in Iran have been integrated into the country’s primary health care system.[18] A November 2008 World Health Organization report stated that mental health services at the primary level were ‘based mainly on the delivery of psychotropic medicines’ and that its capacity ‘to provide counselling or other non-pharmaceutical interventions has been limited.’[19] At the lowest level, mental health services are provided by Health Houses in rural areas and Health Posts in urban areas. Sitting above these are the health centres which are located in both urban and rural areas, and above this is the district health centre.[20] The Health Houses and Health Posts are staffed by community health workers called behvarzes in rural areas and Women Health Volunteers (WHV) in urban areas.[21]
[18] World Health Organization 2008, Islamic Republic of Iran: Nationwide integration of mental health into primary care, 26 November, p.125 < Accessed 18 August 2016 <CIS956B8881609>; Forouzan, A S, Ghazinour, M, Dejman, M, Rafeiey, H and Sebastian, M S 2011, ‘Testing the WHO responsiveness concept in the Iranian mental healthcare system: a qualitative study of service users’, BMC Health Services Research, vol. 11, p.2 < Accessed 19 August 2016 <CISD9559B12315>; Sharifi, V 2009, ‘Urban Mental Health in Iran: Challenges and Future Directions’, Iranian Journal of Psychiatry and Behavioral Sciences (IJPBS), vol. 3, iss. 1, Spring and Summer, p.10 < Accessed 18 August 2016 <CISE1310071789>
[19] World Health Organization 2008, Islamic Republic of Iran: Nationwide integration of mental health into primary care, 26 November, p.129 < Accessed 18 August 2016 <CIS956B8881609>
[20] World Health Organization 2008, Islamic Republic of Iran: Nationwide integration of mental health into primary care, 26 November, pp.127-128 < Accessed 18 August 2016 <CIS956B8881609>; Forouzan, A S 2015, Assessing responsiveness in the mental health care system: the case of Tehran, Umeå University, pp.4-5 < Accessed 18 August 2016 <CISEC96CF14803>
[21] Forouzan, A S 2015, Assessing responsiveness in the mental health care system: the case of Tehran, Umeå University, pp.4-5 and 8 < Accessed 18 August 2016 <CISEC96CF14803>
The applicant’s migration agent claimed the country information available to the Tribunal did not reflect the real circumstances in Iran (regarding the provision of health services). However, the Tribunal is not satisfied this is correct (given the range of country information that is available). The migration agent also said the applicant (and her family) would not be able to afford health services in Iran. However, none of the information seen has satisfied the Tribunal that those medical services that are made available to citizens in Iran, would be withheld from the applicant (or any family member) for any reason.
Neither am I satisfied that the removal of the applicant (or a family member) to Iran, would give rise to a real chance that she would suffer serious or significant harm (as defined in the Act).
The claimed meditation practise of [Ms C] and [Mr E]/[Mr E Alias 1] in Australia
The applicant lodged information about the meditation practise undertaken by [Ms C] and [Mr E Alias 1]. A letter dated 19 April 2017 from [an organisation in] Australia, said the applicant’s son ([Mr E Alias 1]) and daughter ([Ms C]) were inter alia regular attendees at meditation classes. These classes further their spiritual growth. The country information stated:
Mohammad Ali Taheri, founder of a popular spiritual group called "Erfan-e Halgheh," or "mysticism circle," has been kept in solitary confinement in Tehran’s notorious Evin prison since May, 2011. Taheri, who taught popular spirituality and meditation classes, was originally given a 5-year sentence for “insulting Islamic sanctities,” an offense that does not carry the death penalty as it does not involve the deliberate insulting of the Prophet Mohammad.[22]
and:
Interuniversalism [also known in Persian as Erfan-e Halgheh, Erfan(e) Halgheh, Erfan-e Halqeh, Erfan-e Kayhani or Erfan Kaihan] is also known as "Interuniversal Mysticism" (Interuniversalism Inc. n.d.), "Mysticism of the Ring" (Doostdar Apr. 2012, 130) or "Cosmic Mysticism" (IOPHRI 12 Aug. 2013; Doostdar Apr. 2012, 130). Sources describe Interuniversalism as "a spiritual doctrine" (Interuniversalism UK n.d.), "a mystical outlook" (Interuniversalism Inc. n.d.), a "mysticism" (Doostdar Apr. 2012, 130), a "philosophy" (MEHR 27 Oct. 2013) and "a school of thought" or "belief structure" (Senior Researcher 28 Oct. 2013). It originated in Iran (Interuniversalism Inc. n.d.).
…..
According to the Senior Researcher, "[t]he [s]tate and state officials think of Interuniversalism [as a] cult and a ... scam" (ibid.). The Director of Interuniversalism UK stated that a bill that aims to ban "Interuniversalism Mysticism" in Iran and stipulates punishments for "anyone attending, promoting and managing 'fake spiritual doctrine'" has been drafted; however, he added that the bill "has not reached the parliament open session" yet (Interuniversalism UK 30 Oct. 2013; ibid. 5 Nov. 2013). The Director added that "fake spiritual doctrines" are "defined as non-Islamic doctrines, and the government agencies have explicitly characterised Interuniversalism as a 'fake spiritual doctrine'" (ibid. 30 Oct. 2013).[23]
[22] CXBD6A0DE1918: "Hundreds support Iranian mystic facing death sentence", Fox News, 25 February 2015,
[23] Immigration and Refugee Board of Canada, "IRN104640.E - Iran: Situation and treatment of practitionners of Interuniversalism (Erfan Halgheh) (2010-October 2013)", Immigration and Refugee Board of Canada, 01 November 2013, CIS27379.
At hearing, the Tribunal put to the applicant that it did not understand that all persons who practised (ie) meditation in Iran or Australia, had a real chance of suffering serious or significant harm in Iran. The applicant’s daughter and the migration agent disagreed. They said (words to the effect) that all meditation engages in spiritual issues, and same is considered a threat to Shia Islam. However, the country information has not satisfied the Tribunal this is correct.
That being said, based on all the evidence, I am not satisfied the applicant (who does not practise meditation) would have a real chance of suffering serious or significant harm in Iran, for reason of the practise of meditation by her son and daughter in Australia.
Failed asylum seeker
As indicated at the hearing, the Tribunal would consider whether the applicant may be harmed on return to Iran as a failed asylum seeker. The Tribunal notes the applicant and three of her children have resided in Australia for at least 8 years ([Mr E Alias 1] has resided in Australia for longer than this). The country information stated:
5.33 Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. …
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.
[24] DFAT Country Information Report, Iran, 21 April 2016.
5.35 …DFAT is also not aware of any specific barriers for voluntary returnees to travel to their home region, including for unaccompanied women. Some women from minorities or rural areas may feel culturally unable to travel unaccompanied within Iran.[24]
After the gist of the country information was put to the applicant for comment, it was claimed (words to the effect) the information provided about Iran was incorrect. However after considering same, including more recent country information from a range of sources, the Tribunal is not satisfied this is correct.
The Tribunal presumes the applicant’s Iranian passport has expired. However, based on evidence from other Iranian PV applicants, she could apply for another passport at the Iranian embassy in Australia. Further, based on the country information, even if the applicant returned to Iran on temporary travel documents, I am not satisfied she would have a real chance of suffering serious harm for this reason.
Next, in a DFAT report dated 19 April 2011 and in the aforementioned more recent DFAT Country Information Report, Iran, 21 April 2016, it is stated (words to the effect) that ‘it is unlikely Iranian authorities would prosecute an individual simply for claiming asylum overseas’ but noted that ‘it is possible that a known dissident may be prosecuted in this way’.[25] However and as stated herein, the Tribunal is not satisfied the applicant has any relevant profile that would cause her to be of any adverse interest to the authorities or other persons on return to Iran.
[25] Department of Foreign Affairs and Trade 2011, Response to IRN 11738: Iran - Article on returned asylum seekers and people exiting Iran with false documents, 19 April <CX263145>
Based on the accepted claims (including that which relate to the Tribunal’s satisfaction about the applicant’s lack of profile), I am not satisfied she would have a real chance of being subject to serious or significant harm for having sought asylum in Australia, or for having resided in Australia for around eight years.

Next, based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached by the cancellation of the applicant’s visa.
Conclusion
Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By her deception, the applicant has retained significant benefit (including social security benefits). I am satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a PV.
However, the applicant has resided in Australia for around 8 years and this is a substantial period of time. The applicant (and her husband) has a number of serious health issues for which she is treated in Australia; and the Tribunal accepts this is correct. The Tribunal also accepts the applicant is advantaged by the health treatment she receives in Australia and that her forced return to Iran would likely cause her (and her husband) more serious health issues.
Next, the applicant’s husband, three of the applicant’s children and numerous grandchildren have been allowed to continue to reside in Australia; and the cancellation of her PV may result in her being forced to return to Iran (with her husband), where no close family members reside. Further, there is no evidence before the Tribunal, that there have been any other breaches of the law, other than those discussed herein.
After considering all the evidence cumulatively, and notwithstanding the applicant’s duplicity, the Tribunal does not accept it is reasonable that the relatively elderly and sickly applicant’s visa be cancelled, given the substantial impact it would have on her and immediate family members.

100. The Tribunal has therefore decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, and after having regard to all the relevant circumstances (discussed above), the Tribunal concludes that the visa should not be cancelled.
DECISION
101. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Mr S Norman
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.

[2018] AATA 1440

9 April 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction

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