1700603 (Refugee)

1700603 (Refugee) [2019] AATA 1061 (7 January 2019)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700603
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE OF DECISION:  7 January 2019
DATE CORRIGENDUM
SIGNED:21 January 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The date ‘7 January 2018’ on the front page of the Decision Record should be replaced with ‘7 January 2019’.
Denis Dragovic
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700603
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:7 January 2018
PLACE OF DECISION:  Melbourne

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 07 January 2019 at 11:32am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information – false identity – documentation submitted – evidence of Iranian citizenship – close relatives in Australia – best interests of children – embraced Australian culture – better future prospects –applicant’s health issues – ongoing multidisciplinary care required – Australian born child dependent on husband’s SHEV application – separation of family – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 101, 107, 109, 140, 438
Migration Regulations 1994 (Cth) r 2.41
CASES
G v MIBP [2018] FCA 1229
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 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 applicant had not complied with s.101 of the Act as she provided incorrect answers in her application for the protection visa. 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 applicants appeared before the Tribunal on 24 May 2017 before a member whose term expired prior to finalising the decision. The applicants appeared again before the Tribunal on 6 July 2018 to give evidence and present arguments.
The Tribunal also received oral evidence from the applicant’s two children. 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 her registered migration agent.
I noted to the applicant that there were two s.438 certificates on the Department’s files. I explained that the certificates were valid and provided them to the representative. I explained that the information behind the certificates was not different to information available elsewhere and as such I would not rely upon it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND 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.
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 in the following respects. The delegate noted the following answers given during the visa application process:
(a)The applicant and her children arrived on Christmas Island as Irregular Maritime Arrivals (IMA) claiming to be undocumented, stateless persons from Iran seeking asylum in Australia.
(b)The applicant lodged an application for a protection visa on 25 January 2011 in the name of [name deleted] for her and her dependent children with the assistance of a migration agent. As part of the application the applicant also provided a completed form 866B – Persons included in this application and family composition; form 866C – Application for a person who wishes to submit their own claims to be a refugee; two forms 866D – Application for a member of the family unit; and form 80 – Personal particulars for character assessment. The following answers in these forms were highlighted by the delegate cancelling the applicant’s visa:
·In response to question 8 of form 866B which asks “Are there any members of the family unit who are IN AUSTRALIA but are NOT included in this application?” the applicant stated “No”.
·In response to question 10 of form 866B which asks “Do any of the persons included in this application and named in question one have close relatives who are IN AUSTRALIA at the time of application?” the applicant stated “No”.
·In response to question 8 of form 866C which asks “Place of birth: Town/City and Country” the applicant stated “[Iraq]”.
·In response to question 42 of form 866C which asks “Why did you leave that country?” the applicant stated “Please refer to my statement”. In that statement which was submitted as part of her visa application and signed, the applicant stated (in part):
·     “My life was in danger; I did not have any protection.”
·     “I am Kurdish Faili, I have no identity or documents.”
·     “My husband would sell items as a hawker, general merchandise. The beginning of January 2010, he was at work, he came home early very frightened and said that we had to get out of the country. He said that his photograph had been taken while working and that the Basij had followed him home.”
·     “My husband left Iran with the assistance of a smuggler; he said he could not take us with him.”
·     “After they left the landlord told us that we must leave as we had created problem for them by attracting the Basij.”
·     “I packed up my children and fled Iran with the assistance of a different smuggler.”
·In response to question 43 of form 866C which asks “What do you fear may happen to you if you go back to that country?” the applicant stated “Please refer to my statement.” In that statement the applicant wrote:
·     “I cannot go back to Iran, I have no documents, I will be destroyed.”
·In response to question 44 of form 866C which asks “Who do you think may harm/mistreat you if you go back?” the applicant stated “Please refer to my statement.” In that statement the applicant wrote (in part):
·     “The Basij.”
·In response to question 45 of form 866C which asks “Why do you think this will happen to you if you go back?” the applicant stated “Please refer to my statement.” In that statement, the applicant wrote:
·     “They will kill me being Kurdish Faili.”
·In response to question 46 of form 866C which asks “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the applicant stated “Please refer to my statement.” In that statement, the applicant wrote:
·     “The authorities do not give us the right to complain and we cannot complain as the Basij are one with the power.”
(c)The applicant also submitted a form 80 – Personal particulars for character assessment, which contains a large number of questions, however the delegate referred to the following in particular:
·In response to question 8 of form 80 which asks “What is your current citizenship?” the applicant stated “Stateless”.
Based on the applicant’s claims that she and her children feared persecution due to their alleged stateless status in Iran from the Iranian authorities and due to her claimed Kurdish Faili origin, she was found to be a person who engaged Australia’s protection obligations and was granted a Subclass 866 Protection visa on 28 January 2011.
For the purpose of applying for citizenship on 18 August 2015 the applicant attended an identity interview with an officer of the Department and was accompanied by her case worker from [a social welfare organisation]. During the course of the interview, the applicant provided a full admission regarding her name, place of birth, family connection and citizenship. She admitted that her true identity is:
Name: [name deleted]
Date of birth: [deleted]
Place of birth: Tehran, Iran
Citizenship: Iranian
The applicant also provided the following information during this interview:
·She is Iranian and Kurdish and her grandfather was living in Iraq.
·She had many relatives in Australia including three brothers, [names deleted] and [Mr A] at the time of her application for the protection visa. Departmental records show that the applicant lived with one of her brothers for a long period following the grant of the protection visa. She also advised and confirmed that the parents listed on her brother [Mr A]’s Iranian birth certificate are her own parents. The delegate considered that this meant that her brothers are Iranian citizens which in turn equates to the applicant being an Iranian citizen as children acquire nationality through their father under Iranian nationality law.
Given the above information provided by the applicant the delegate determined that the applicant had provided incorrect information about being stateless and her reasons for fearing return to Iran. Therefore the delegate considered that the applicant did not comply with s.101(b) of the Act because she provided incorrect information.
Specifically, the delegate considered that the applicant’s response where she indicated she had no family in Australia was incorrect. This is because during her identity interview on 18 August 2015, the applicant admitted she had three brothers in Australia at the time of her application for a protection visa.
The delegate also identified incorrect information in relation to her place of birth when she answered she was born in [Iraq]. During her identity interview on 18 August 2015 she stated she was born in Tehran, Iran.
The delegate also considered that the applicant’s responses to question 42 of form 866C supplanted with information in an accompanying statement regarding the reasons she left Iran were incorrect because at the identity interview on 18 August 2015 she admitted she was an Iranian citizen and therefore was not stateless as claimed and this was supported by the fact that she obtained an Iranian driver’s licence in the normal lawful manner. As a result the delegate found that her answers to questions 43, 44 and 46 were not correct as they were each based upon the claim of being stateless. In relation to her answer to question 43 of form 866C, the applicant provided incorrect information as she claimed that she was unable to return to Iran as she had no documents and she “will be destroyed.” The delegate noted that during the identity interview she admitted she was an Iranian citizen with the ability to hold identity documentation that attests to this.
At the Tribunal hearing the applicant acknowledged that in her application she had claimed that she was stateless but in actual fact had citizenship. She also admitted to providing incorrect information by not acknowledging her brothers were living in Australia.
As the applicant has admitted to providing incorrect information the Tribunal finds that there was non-compliance with s.101(b) by the applicant 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 Migration Regulations 1994. 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 Procedures 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.
The applicant submitted a response to the Notice of Intention to Consider Cancellation dated 8 December 2016 which included:
·The applicant claims that if she and her children are forced to return to Iran, her husband will most likely force their daughter [Child 1] to marry at a very young age as is tradition among Kurds.
·She claims she came to Australia with the assistance of a Kurdish smuggler [and] he was later convicted and jailed and has made threats to kill her when he is released from prison.
·She and her children have lived in Australia for six years and her children have fully embraced Australian culture.
·She has suffered abuse from her husband and fears she will be subjected to continued and a more severe form of family violence in Iran if she is returned.
·Her children are very good students and her son who is [age] years old has embraced Christianity and identifies himself as Christian. Her son’s dominant language is English and he will have great difficulty in terms of learning how to read and write Farsi and embracing a totally different culture and will most likely face serious harm on the basis of his views on religion.
·Her children have better prospects for their lives in Australia than in Iran. She refers to the children’s safety, freedom, education and health care. The prospects of her children’s lives in Australia are better than in Iran in all aspects and their return will be significantly detrimental to their prospects.
The Tribunal’s considerations
The correct information
The applicant admitted to the Department and once again to the Tribunal that she was and is an Iranian citizen. Therefore the correct information is that the applicant is an Iranian citizen and was so at the time she lodged her application for a protection visa on 25 January 2011. I give this substantial weight in favour of cancelling her visa.
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
At the Tribunal hearing the applicant agreed that the decision to grant her a protection visa was based on incorrect information. I have reviewed the decision record and find that the decision to grant the applicant a protection visa was based wholly on her claims to be a stateless Faili Kurd. I give this substantial weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
At the hearing the applicant was invited to explain the circumstances in which the non-compliance occurred. The applicant stated that she lied because she was advised by a people smuggler to do so. In [that country] she was a part of a group of three families who were informed they had several choices on which to base their claims, including claiming to be Faili Kurd without identity, having political views that would put her at risk, religious claims or that she feared harm for reason of her gender. The applicant was also advised to change her first name, last name, date of birth, father’s and mother’s names, and to make claims of being subjected to imprisonment, lashings and other forms of abuse. Their conversation was around one-hour long. The applicant gave evidence that the people smuggler said any contacts in Australia should not be mentioned as the lonelier a person is the better.
While the applicant has provided a believable narrative of how it transpired that she acquired a story different to her own, a narrative that is driven by the people smugglers, it does not alleviate the burden of responsibility for her actions. She was not pressured into lying; she embraced the lie that was provided to her to further her chance of relocating to Australia. I place substantial weight in favour of cancelling the visa.
The present circumstances of the visa holder
In relation to the applicant’s present circumstances, information which was provided by her migration agent includes:
·The applicant suffers from deep depression, anxiety and diabetes.
·The applicant is currently reliant upon the NDIS. A National Disability Insurance Scheme Plan was provided which included the following information:
-     She has visits from [Hospital 1], [Hospital 2] and [Hospital 3] due to severe asthma.
-     A nurse comes from [Hospital 3] to ensure she takes her asthma medication.
-     She sees a dietician at [Hospital 4].
-     She has been attending counselling once a fortnight [and] has been doing so for five years. Recently the consultations have been by phone.
-     She has a mental health outreach worker from [another social welfare organisation] and they have been working together for five years.
-     She sees a psychologist once a month, however due to the long waiting list she has not seen one for about two to three months.
-     She sees a psychiatrist at [a] clinic.
-     She sees her GP as needed.
The Tribunal received written evidence in relation to the applicant’s health, including:
·A letter dated 10 October 2017 by [Dr B], the applicant’s treating psychologist. [Dr B] advises she has treated the applicant for major depressive disorder with psychotic features and anxiety since April 2013. It is advised that the applicant suffers from [details deleted]. The applicant also suffers several physical health issues such as severe asthma and diabetes that impact her mental state and ability to function. [Dr B] advises that the applicant’s mental state has severely deteriorated due to a high level of distress following her visa cancellation. She further states that if the visa is not re-instated the applicant’s mental health would further deteriorate and she would not be able to cope with the demands of life and society (another letter dated 16 May 2017 by [Dr B] containing similar content to her October letter was also provided).
·A letter dated 5 May 2017 by [Dr C], the applicant’s treating psychologist. [Dr C] confirms the applicant has suffered major depressive disorder since 2011 in the context of immigration stress and family discord. [Dr C] provides advice regarding changes to the applicant’s medications due to her then pregnancy.
·An undated letter by [an] occupational therapist at [Hospital 3], addressed to the Office of Housing and requesting the installation of air-conditioning in the applicant’s home to help manage the applicant’s health issues.

At the hearing the medical information provided was acknowledged and the applicant was asked if there was anything else she wished to provide, particularly in relation to her reliance or dependence upon Australia. The applicant repeated that her children are tied to Australia.
I read to the applicant country information on the available mental health services in Iran. In an academic article written by Paul Priester, he writes, ‘Having spent considerable time in discussions with professors and students involved in [Tehran Psychiatric Institute] I find the training and students to be on par with some of the best U.S. mental health counselling training institutions…the doctoral-level training reflects the curriculum taught in American Psychological Association’s accredited counselling or clinical psychology training programs.’[1] I have also considered whether the applicant would have access to these services. In a WHO report it states that, ‘All mental disorders are covered in social insurance schemes, but there are limitations for the length of a hospital stay.’[2]
[1] Priester, P. E. (2008), ‘Mental Health Counseling in the Islamic Republic of Iran: A Marriage of Religion, Science, and Practice’, Counseling and Values, 52(3), 255.
[2] WHO-AIMS Report on Mental Health System in The Islamic Republic of Iran, World Health Organisation and the Ministry of Health and Medical Education, Islamic Republic of Iran, 2006, < accessed 13 December 2018.
I put to the applicant that in 2014, the Iranian government announced a new program to extend health insurance coverage to all Iranians, in the fashion of “Obamacare” in the United States. Under the new Tarh-e Salaamat health plan, the state pays for 90% of patients’ medical bills in hospitals.[3] She responded that she was not aware of this.
[3] Industry Spotlight: Healthcare, American Iranian Council, < accessed 18 December 2018.
The applicant responded that these are correct on paper, but she knows someone in hospital where they tied him to his bed because of his mental health problems. But he doesn’t need medication but only therapy and counselling. She claims that in Iran people need lots of money to go to a doctor, but here they attend you and then later ask for Medicare.
The applicant has considerable mental and physical health challenges that are being supported through Australia’s health system, though, they are not life-threatening. I also note Iran has competent and accessible mental health services. As regards to her physical health issues including her asthma and diabetes for which she currently receives support through the NDIS I note country information which was read to her at the hearing that states Iran has a social insurance scheme that allows her to access health care.
Given the applicant’s health issues it is clear that remaining in Australia would be favourable but the services available to her in Iran appear adequate. As such I give only limited weight against cancelling the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
No information has been made available to the Tribunal to suggest that the applicant has breached any obligations under Subdivision C of Division 3 of Part 2 of the Act. I place minimal weight against cancelling the visa as it is an expectation that all visa holders adhere to their obligations.
Any other instances of non-compliance by the visa holder known to the Minister
No information has been made available to the Tribunal to suggest that there have been further instances of non-compliance by the visa holder. I place minimal weight against cancelling the visa as it is an expectation that all visa holders would not breach any compliance requirements.
The time that has elapsed since the non-compliance
The applicant arrived in Australia on [date] April 2010. It is more than eight years that she and two of her children have been in Australia. This is a considerable period of time to be away from one’s home country and adapting to a new country as such I give it some weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
No information has been made available to the Tribunal to suggest that there have been any breaches of the law. I place minimal weight against cancelling the visa as it is an expectation that all visa holders do not break the law.
Any contribution made by the holder to the community
At the hearing the applicant was invited to discuss any contributions she had made to the community. She stated that she wanted to work, including doing volunteer work, but because of her disability she could not. The applicant stated that she had raised her children to be good children and she attends school parent–teacher meetings. She spoke of her children’s accomplishments, including that her daughter is School Captain and her son, who is one year ahead of the kids in his age group, is one of the best students in school.
The Tribunal received a reference letter dated 22 November 2017 by the Principal of [a school] advising that her son, [Child 2], has very good grades, his behaviour is exemplary and he has participated in multiple extracurricular activities. It is advised that [Child 2] is a great asset to the school and he will make a positive contribution to Australia.
[Ms D] (NDIS Support Coordinator) states in her letter that the applicant has accessed various supports to improve her wellbeing and aspires to [work in a certain role] as she received training in her home country. [Ms D] notes the applicant’s daughter is inspired to join the [emergency services] and her son has good academic grades.
The applicant came to Australia with the assistance of a Kurdish smuggler [who] was convicted and jailed a few years ago. According to the applicant the Federal Police interviewed her and she fully cooperated. I accept this as fact.
The applicant has expressed hopes for making a contribution to Australia over a period of eight years but has done little on a personal level despite being afforded every opportunity including access to NDIS and medical assistance for her health issues. In her favour she has helped raise two children in a way that reflects very well on her. That she provided evidence to the AFP is positive but to be expected as a bare minimum. Overall I give this some weight against cancelling the applicant’s visa.
Are there other persons in Australia whose visas would, or may, be cancelled because they are members of the same family unit?
There are two persons in Australia whose visas would be cancelled because they are members of the applicant’s family unit, namely her children [Child 1] and [Child 2]. In the following section I consider the circumstances of each of the children.
The applicant was asked if her husband, the father of her children, holds Iranian citizenship. The applicant said that he does, however she claimed that her children do not have any papers.
Article 976(2) of The Civil Code of the Islamic Republic of Iran (hereafter referred to as the Civil Code) stipulates that a person born outside Iran to an Iranian citizen father is considered to be an Iranian citizen.[4] Other country information supports this view:
·A 2014 article from the Journal of Public Administration and Governance stated that ‘[c]itizenship acquired through ancestry is explained in Clause 2 of Article 976’. It also explained that ‘[a]ccording to Clause 2 of Article 976 all persons whose fathers are Iranian, whether born in Iran or in other countries, are Iranian citizens’.[5]
·In a separate 2014 article, Jason Tucker of Tilberg University stated in relation to Article 976(2) of the Civil Code that ‘a child obtains Iranian nationality regardless of where the child is born, if they are born to an Iranian father.’[6]
[4] The Civil Code of the Islamic Republic of Iran, Islamic Republic of Iran, 23 May 1928, < 11 September 2018.
[5] Pour Rohani, S and Pour Rohani, S 2014, ‘Afghan Immigrants in Iran and Citizenship’, Journal of Public Administration and Governance, vol. 4, no. 4, 11 November, p.22, < Tucker, J 2014, Exploring statelessness in Iran: Gaps in the nationality law, populations of concern and areas for future research, Tilburg University, p.6.
It being not in dispute that the father is Iranian and having found that in Iran a child’s citizenship is derived from their father, not their mother, I am satisfied the applicant’s children are Iranian citizens. In this context the children will have the rights of a citizen, including equal access to health, education and other government services.
The Tribunal received a number of submissions from healthcare professionals concerning the wellbeing of the applicant’s children, including:
·A letter dated 19 October 2017 by [Dr E], a Psychiatry Registrar at [Hospital 1], who has been supporting the applicant. [Dr E] reports that the applicant has described her two teenage children as previously happy and outgoing, but recently having lost interest in hobbies, becoming isolated and gaining weight. The applicant feels this is due to fears of being deported.
·An undated letter by [Ms D], an NDIS Support Coordinator assisting the applicant to access services since December 2016. [Ms D] advised that due to the lack of mental health and physical health support in Iran it is likely the applicant will experience mental health deterioration under increased distress. She further notes the applicant’s children will be impacted by the applicant’s reduced parenting capacity.
·A letter dated 16 May 2017 by [a] Family Services Caseworker, who has assisted the applicant and her family since February 2017. It is advised that the applicant contacted [a local] Family Service Team seeking support with parenting her adolescent children. It is advised the applicant is receiving support for her mental health and her children are making sound progress in their education and general wellbeing, including participating in local youth activities and developing strong social support networks at school and locally.
[Child 1]
The applicant expressed concern that in Iran her daughter will have to get married. She stated that her daughter is turning [age] in [month] and that she would be married in Iran because she would not have anything else to do in life.
The applicant’s daughter, [Child 1], also gave oral evidence saying that she could be forced to get married in Iran. She said that she comes from a traditional and very strict Kurdish community, however, she wants to be a successful woman and does not want to get married at a young age or be subjected to a forced union. [Child 1] claimed that her father’s family would push for her to get married, but admitted that to date she has not faced any pressure. [Child 1] was asked about the possibility of moving and living somewhere else in Iran. She responded that there are expectations, including cultural expectations that limit her ability to move away. While I accept that there are cultural expectations upon her and that these may include participating in an arranged marriage or being forced to marry sometime in the future I find that it is speculative considering that she hasn’t faced any pressure to date.
The applicant outlined further concerns for her daughter’s welfare in Iran. She stated that while [Child 1] spoke Kurdish and Persian until [age] years old, sometimes at home [Child 1] does not know the Farsi word for things. She claimed that [Child 1]’s language is not complete.
In Australia [Child 1] attends a mixed boys and girls school. It was claimed that in Iran she would not know how to deal with attending an all girls’ school. The applicant also claimed that [Child 1]’s school records in Iran label her as unreligious. She claimed that this occurred because when her husband argued with the school principal he swore and spoke against religion and the principal got upset. The applicant stated it would be very hard for [Child 1] to pass the university entrance exam. I accept that [Child 1] may need to attend an Iranian high school was she to pursue further studies or require a certificate of completion for other reasons. I do not accept that it would be difficult for her to adapt to being in an all-girls school as many others in Australia and elsewhere adjust to similar circumstances. I accept that without a return to an Iranian high school it would be hard for [Child 1] to pass the university exam considering that she hasn’t been schooled in Iran.
In the post-hearing submission dated 24 July 2018 the applicant’s representative submitted that [Child 1], a young woman from an ethnic minority, will be denied the right to higher education because she has lost several years of schooling in Iran and, noting the exams are conducted in Persian, this will cause her severe difficulties in passing the university entrance exams.
The applicant stated that her daughter wants to join the [emergency services]. The Tribunal was informed that in Iran women do not work in [these roles], recruitment involves a very strict assessment of the person’s background and [Child 1] would not pass that check. [Child 1] also gave oral evidence that she wants to join the [emergency services] having interned with them. It is possible that she would not pass checks for being the daughter of an Iranian citizen who spent eight years in Australia having been granted asylum but the visa then being cancelled. This may impact the breadth of work that she would be able to access.
[Child 1] also said that she has tried to do her best in Australia, she is good at school and she will finish her Year 12 studies in October 2018. At the hearing we went through a long list of certificates including:
a.Work experience at [an emergency services branch]
b.[a youth] Program
c.[Details deleted]
d.[Deleted] at [name] College
e.[State 1] government scholarship
I accept that [Child 1] may struggle to enter into an Iranian university without returning to high school. This may cause her some challenges but she is a very bright student and like others who face a similar situation I find that she would be able to overcome it. There is no information to suggest that her ethnicity or other circumstances would prevent her from accessing university. Alternatively, if she chose to pursue a career in the [emergency services] she may find that it is blocked due to her particular circumstances. In summary she faces some challenges upon return to Iran in finding a career path. I accept this but place little weight on it for the reason that it is not uncommon or insurmountable.
The applicant said that [Child 1] won’t be able to get a job or be independent. I read to her country information stating that, ‘There has been a big growth in individualism in Iran, especially among women. Women are more educated and have increased financial empowerment,’ said Hamid Reza Jalaipour, a sociologist at Tehran University. ‘It used to be that a woman would marry and she would just have to get along. Now if she’s not happy, she’ll separate. It’s not taboo,’[7] he said. ‘We’re not talking about a middle class anymore or the northern Tehran elite.’ The applicant responded that it depends upon which community you come from. She said that her family doesn’t believe in separation and divorce. While [Child 1]’s independence would be diminished in Iran compared to Australia I do not accept that it would be to a degree that would carry much weight in this decision.
[7] Reuters, ‘Rise in divorce in Iran linked to shift in status of women’, October 22 2014 available at [accessed on 21 December 2018]
It was submitted that [Child 1] may experience ‘trouble’ on account of being agnostic and having grown up in the Western culture where freedom of speech and other civil liberties exist. It was put to the tribunal that she was abused at school. That she was abused in primary school does not infer that she will be abused as an adult upon return. Instead, I put to the applicant that information from the World Values Survey showed that nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[8] From this I infer that [Child 1]’s agnosticism would not be noticed. The applicant said that her daughter would have to pretend if she was questioned, though she wasn’t sure who would question her. She added that [Child 1] will have to cover up and wear a hijab. I accept that she would have to pretend in some circumstances and act as do the nearly half of all Iranians noted in the survey. I give this little weight against cancelling the applicant’s visa.
[8] World Values Survey, ‘Iran Wave 2005–2009 Online Data Analysis: V186. – How often do you attend religious services’, available at < accessed 16 December 2018.
It was submitted that [Child 1]’s Australian upbringing would not protect her from being subjected to a forced or arranged marriage upon return to Iran. The Tribunal was urged to consider the power of Kurdish conservative culture given the high number of different forms of family violence in Kurdistan, that marriage at a young age and between cousins is an accepted norm, and reports exist of Kurdish girls in Western countries being returned to their parents’ homeland for arranged marriages. While I accept that arranged marriages are common and in some cases they amount to forced marriage, the applicant’s daughter was nearly [age] at the time of the hearing and neither her father nor his extended family had shown any intention to begin this process.
Overall I give limited weight against cancelling the applicant’s visa on the basis of the circumstances her daughter will face upon return to Iran.
[Child 2]
At the hearing the applicant spoke about the impact upon [Child 2] of returning to Iran. The applicant noted that Islam is compulsory in Iran; however, [Child 2] has studied at a Catholic school for five years and is one year ahead in his studies. The Tribunal was informed that [Child 2] only knows that he is from Australia and he does not have any memory of any other place, he does not know anything about Islam and there is no future for him if he goes back.
[Child 2] also gave oral evidence to the Tribunal about how the visa cancellation will affect him. He stated that he was [age] years old when he left Iran. He can speak Farsi, but can struggle, and sometimes uses Google Translate. He stated that he is doing really well in school, there are more opportunities in Australia, in Iran he does not have any opportunities and when he turns 18 he will have to join the military. [Child 2] confirmed he is now [age] years old. I stated that some children have not thought about religion at that age and asked [Child 2] if he had given it thought. [Child 2] spoke about becoming Catholic in the future.
In the post-hearing submission dated 24 July 2018 the applicant’s representative submitted that [Child 2]’s inability to read or write Farsi, his Western upbringing and fluent English will lead other students to single him out. Furthermore, [Child 2]’s Western values such as valuing freedom of speech and the likelihood that he will speak about religion and differences in [Child 2]’s understanding of God through the Trinity compared to the Islamic notion of God indoctrinated in schools in Iran will put him at serious risk of harm by corporal punishment which is practised in Iranian schools, deprivation of accessing schooling and other forms of serious discrimination.

While I accept that the applicant’s son will face challenges was he to return to Iran I note that he is young and clearly bright and as such would be able to readjust just as children of diplomats or businesspeople or other Iranian expatriates do. There is no reason to believe that he will struggle to catch up on his written and spoken Farsi. That he has expressed an interest in Catholicism at [age years old] I give little weight for the reason the child is too young to fully appreciate the spiritual differences between the two monotheistic Abrahamic religions. Similarly suggestions that he values ‘freedom of speech’ are simplistic and limited at least for several years to come to the school environment. While I accept that schools in Iran may not allow him to speak as freely as he may be allowed here I place little weight on that as learning through ‘speaking out’ is only one approach that contributes to one element of a child’s education.
Overall I give limited weight against cancelling the applicant’s visa for reasons of the circumstances her son will face upon return to Iran.
[Child 3]
[Child 3]’s stay in Australia will not be impacted by the cancellation of the applicant’s visa. He is on a bridging visa that is associated with his father’s protection application. Nevertheless, I have reviewed the circumstances of [Child 3] for the reason that were his mother’s visa cancelled it would mean that he would forego her in his life for at least some period which could have an impact upon his physical and mental health and it would invoke family unity principles.
The applicant claims that she forced her husband to have a third child because she had heard that if she has a child in Australia then they could stay. Her visa was cancelled with three months of her pregnancy remaining. She told the tribunal that she tried to abort her child at that stage but couldn’t. [Child 3] is now a healthy [age]-year-old child.
The Tribunal received a letter dated 19 October 2017 by [Dr E], a Psychiatry Registrar at [Hospital 1], who has been supporting the applicant in regards to her relationship with her youngest son, [Child 3]. [Dr E] advises that the lack of clarity around the applicant’s visa status and the jeopardy for her family is directly impacting on the applicant’s mental health. She describes the applicant as pre-occupied and constantly ruminating about her family’s future which is impeding her ability to focus on [Child 3]’s cues and emotional state. She advises that [Child 3] is already showing signs of distress and avoids eye contact with the applicant and notes the importance of the first year of life for infant brain development, future interactional patterns and psychological resilience. The applicant has engaged in parent–infant psychotherapy and this work is challenging while the family’s future is unclear. [Dr E] advises the applicant has multiple physical and neuro-cognitive issues and is likely to require ongoing multidisciplinary care.
Separating [Child 3] from his mother would lead to considerable long-term harm according to medical research. Charles Nelson, a pediatrics professor at Harvard Medical School has described such separation as ‘catastrophic’ with the following outcomes:[9]
·Much less white matter, which is largely made up of fibres that transmit information throughout the brain, as well as much less gray matter, which contains the brain-cell bodies that process information and solve problems
·Score significantly lower on IQ tests later in life
·Their fight-or-flight response system appears permanently broken
·Stressful situations that would usually prompt physiological responses in other people — increased heart rate, sweaty palms — would provoke nothing in the children
Other research reviewed by the Tribunal provides similar findings.[10]
[9] Wan, W, 2018, ‘What separation from parents does to children: “The effect is catastrophic”’, Washington Post, June 18, < accessed 19 December 2018.
[10] Howard, Kimberly et al., ‘Early mother-child separation, parenting, and child well-being in Early Head Start families’, Attachment & human development, vol. 13,1 (2011): 5–26.
Overall I give considerable weight against cancelling the applicant’s visa for the reasons of the impact separation would have on the health and mental health of her son and being without his mother during the first few years of his life.
International obligations
It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[11]
[11] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).
The recent Federal Court case of G v MIBP [2018] FCA 1229 considered application of government policy in the exercise of discretionary powers in the context of an application for Australian citizenship. The Court considered it settled law, at [204], that in the absence of statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
As such I have taken into account the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the Convention Relating to the Status of Refugees.
Article 3.1 of the Convention on the Rights of the Child states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
The best interests of the child are a primary, not the primary, consideration according to government guidance to decision makers.[12] Consideration should be given to the type and strength of the relationship(s) between the non-citizen and the child/children and also the extent of the impact that visa cancellation would have on the child.[13]
[12] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)
[13] Ibid.
Article 1 of the Convention on the Rights of the Child states that a child is any human below the age of 18. As such the applicant’s daughter being over the age of 18 is not considered a child in this instance.
I note that the Convention on the Rights of the Child Article 27 states: ‘States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.’ In considering the circumstances that the children will return to I note that the Convention references a standard of living ‘adequate for the child’s physical, mental, spiritual, moral and social development.’ In this regard I find that the health and educational services available to the two youngest children meet the standard of adequacy.
A further consideration required of decision makers is the principle of family unity which arises from Australia’s obligations under the International Convention on Civil and Political Rights (ICCPR) as well as implicitly through the Convention on the Rights of the Child.
Article 23.1 of the ICCPR provides that, ‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.’
Article 17.1 provides that, ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’
Family unity principles also derive from the Convention on the Rights of the Child but it acknowledges in Article 9(4) parents being legitimately separated from children through deportation.
At the hearing the Tribunal was informed that the applicant’s husband is waiting for a SHEV visa and the application is currently with the Department of Immigration. If the Department refuses the visa the applicant has the right of appeal to the Tribunal and further. The Tribunal asked if, in the event the applicant’s visa was to be cancelled, would the children depart Australia with their mother or pursue options to remain here with their father. The Tribunal was advised that the preference was for the children to stay with their father. Whether the applicant’s children would be able to remain onshore in the event their mother’s visa is cancelled is not clear. If the two children who held dependent Protection visas have had their visas cancelled under s.140(1), they would be barred from making a further application for a visa while onshore under s.48A(1B) unless the Minister determined the bar did not apply to prevent an application for a Protection visa (s.48B). It is possible that the oldest child could lodge her own Protection visa. The third child is not included as a dependent in the mother’s visa application and is entitled to remain in Australia as a dependent applicant on his father’s pending SHEV application.
Regardless of which course was taken by the family if the applicant’s visa was to be cancelled some members of the family would be separated from other members.
Overall I give substantial weight against cancelling the applicant’s visa for reasons of international obligations to principles of family unity and in particular the impact a separation of the mother from her [age]-year-old child would have upon the child.
Conclusion
I find the applicant’s behaviour, specifically lying and maintaining that lie, reprehensible. While she admitted to it, it was only after the government moved to cancel the visa. In establishing the lie it was not that the applicant exaggerated a bad circumstance that she faced to make it sound worse but by her own admission adopted a completely false narrative to gain access to a better life in Australia. She disregarded the humanitarian spirit of the assistance Australia provides to people in genuine need who flee countries for fear of their lives. She took advantage of Australia’s generosity and took the place of others who genuinely needed that protection. I placed significant weight in favour of cancelling her visa for the reason of her lies and in particular that they formed the entirety of the reason for the granting of the visa. I note that there are no circumstances that ameliorate her actions. While her mental health issues have been generously catered to by the Australian government I found that Iran offers access to such services. I also noted that her physical health would be negatively affected was she to lose the support she receives from the NDIS and other medical providers. I put some weight against cancelling her visa on these health grounds. That she hasn’t broken the law or any other statutory or regulatory obligation I give little weight against cancelling the visa for the reason that it is a basic expectation and nothing that one should be applauded for. Since arriving to Australia she has made little contribution to society on a personal level but having raised two children to become admirable young people I gave some weight against cancelling the visa. Based upon the applicant’s individual circumstances her visa should be cancelled expeditiously and she deported.
But the applicant has three children of which two are associated with this visa and the third is on a visa associated with his father’s protection claims. The two children’s visas are to be cancelled by operation of law was the applicant’s visa to be cancelled. As such, when considering the children I have considered how the two eldest will be impacted in general as well as considering all three against Australia’s international obligations in adhering to the Convention on the Rights of the Child and the International Convention on Civil and Political Rights.
The eldest daughter has spent [number] years of her life in Iran and 9 years in Australia. She has benefitted from an Australian education and now speaks two languages. This is a strength that she will bring with her. But I acknowledged that she would face challenges in her career possibly having many options including going to university or joining the [emergency services] blocked. I also accepted that she may need to pretend that she is Muslim although she is agnostic, though I found that it would not be a particularly onerous burden to carry. It was claimed that she faces restrictions on her independence and an arranged marriage or forced marriage which I find to be speculative as she has not received any pressure from family to date. Overall, I gave limited weight against cancelling the visa for [Child 1]’s circumstances.
Conversely, [Child 2] would be significantly affected by a decision to cancel the applicant’s visa. He is [age] years old. He was [age] when he left Iran. He has been schooled in a Catholic school in Australia and has only known Australia as a home. His Farsi language skills are limited. He will be removed from his school, deprived of an opportunity to pursue a future he had built in Australia and forced to live a life in which he will be expected to adopt different religious practices. Having said that I found that as a child of [age] years of age he is too young to appreciate the spiritual differences between the two monotheistic Abrahamic religions. Similarly claims that his right to ‘freedom of speech’ will be trampled are simplistic at least for several years to come as he will be in a school environment which adopts a different teaching style but arguably is not adverse to educating a child. Overall, I gave limited weight against cancelling the visa for [Child 2]’s circumstances.
While [Child 3]’s visa will not be cancelled by operation of law his circumstances come into consideration through international obligations to consider family unity principles and children’s rights accepted as policy by the government and seen as appropriate sources of guidance to decision makers by the courts. The Convention on the Rights of the Child emphasises a child’s right to be cared for by its parents (Article 7). The child’s doctor has advised that [Child 3] is ‘already showing signs of distress and avoids eye contact with the applicant’ who has been described as having ‘multiple physical and neuro-cognitive issues and is likely to require ongoing multidisciplinary care.’ The father is recognised by the mother as a good father and it is accepted that he contributes to raising the children. While parents divorce and children are torn between them, in this situation it is a [age]-year-old child who will be separated from his mother. While it may be preferable and possible for him to return with the mother to Iran considering the mother’s prior willingness to attempt to abort him in the third trimester I accept her claims that any children that can remain in Australia would remain including her [age]-year-old. Noting the medical evidence that was referenced above including the harm that separation causes I placed considerable weight against cancelling the applicant’s visa.
In conclusion the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. But having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Denis Dragovic
Senior 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.

[2019] AATA 1061

7 January 2018

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