1701180 (Refugee)

1701180 (Refugee) [2017] AATA 2659 (31 July 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701180
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Denis Dragovic
DATE OF DECISION:  31 July 2017
DATE CORRIGENDUM
SIGNED:4 August 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

Paragraph 4 of the decision record should be removed and the existing paragraph 3 of the decision record should be replaced with:
“3. The applicant appeared before the Tribunal on 26 April 2017 and 3 July to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages”.
Denis Dragovic

Senior Member
CATCHWORDS
Refugee – Protection visa – Cancellation – Application for Australian citizenship – Claimed to be stateless – Iranian citizen – Incorrect information in visa application – Siblings in Australia – Child Australian Citizen – Members of the same family unit – Failed asylum seeker

LEGISLATION
Migration Act 1958 ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A),36(2B), 46, 48, 48A, 65, 97, 101, 101(b)–(c), 102, 103, 104, 105, 107, 107(2) 109(1), 109(2), 140, 189, 438 , 424AA ,499
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.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701180
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Denis Dragovic
DATE:31 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 31 July 2017 at 2:34pm

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 provided incorrect information for his visa application, specifically that he had claimed that he was stateless with no siblings. Subsequently, information became available that the applicant has [a number of siblings], of which [some] are in Australia. One brother has provided documentary evidence to the Department showing his Iranian citizenship and the sister residing in Australia has similarly provided evidence that she holds Iranian citizenship. Based upon this evidence the delegate determined that the applicant being the son of the same father as his other siblings who had Iranian citizenship must also be an Iranian. 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 26 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
It was requested and agreed by the Tribunal to allow for a post-hearing submission by the 18 July. No submission was received by the Tribunal.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Relevant information pursuant to s.107 Notice
The s.107 notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) of the Migration Act. Section 101 states:
Section 101: Visa applications to be correct
s101. A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered, and
(b) no incorrect answers are given or provided
Section 101 refers to the incorrect information being given on the application form. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning, ‘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 s.46 allow to be used for making the application.’
On the basis of the claims the applicant made in his application he was granted a protection visa [in] January 2010.
The applicant applied for Australian citizenship [in] January 2014. Through this process the Department found sufficient information to further investigate the inference that the applicant was not stateless but rather Iranian. Upon doing so and being satisfied with there being a breach of s.101(b) a notice of intention to consider cancellation was sent on [date] November 2015 which read that the applicant had provided incorrect information relating directly and indirectly to his statelessness on his Form 866C and a statutory declaration provided with the application.
In the response to the notice, dated [November] 2015, the applicant provided an emailed response in broken English which maintained that he was stateless, claiming that his parents were forced to travel from Iraq to Iran by Saddam Hussein. He claimed that some of these people bribed the Iranian authorities to access citizenship but he did not. He claimed that his son was born stateless. He claimed that he was told not to travel back to Iraq but as far as travelling to Iran he was only warned that the Australian government would be unable to help. He returned to Iran because his wife was detained by her brother, a religious man. He claims that as evidence of not being an Iranian citizen he had to obtain a travel visa to Iran from the Iranian government and that citizens do not require travel visas. He claimed that he was detained for half a day before leaving Iran and had to bribe the authorities to release him. He also claimed that the reason he never mentioned his brother, [Mr B], was that his father had told him not to as it could put his brother’s life at risk.
S.109 Cancellation decision
Following receipt of a response from the applicant and the investigation by the Department the delegate concluded that the applicant was in breach of s.101(b). The justification in summary was the following:
·The applicant’s brother, [Mr B], was found to be the holder of several Iranian identity documents. Country information states that children acquire Iranian citizenship from their father and as the applicant’s brother is a citizen of Iran then the delegate found that the applicant himself was a citizen
·The applicant’s son appeared on his mother’s Iranian passport. Country information identified by the delegate notes that women cannot automatically transfer their nationality to their children and as such the applicant, as the father of a child identified as holding Iranian citizenship, must himself be an Iranian citizen.
As a result the visa was cancelled under s.109 [in]January 2017.
Evidence before the Tribunal
Pre-hearing submissions were received by the Tribunal including a statement by the applicant, a letter from the family’s English teacher, a statutory declaration from a friend and a medical submission.
In the applicant’s statement he made similar claims as to those submitted to the Department through the s.107 process. Within his submission, which has been considered in its entirety by the Tribunal, the applicant re-stated:
·That his family was from Iraq and that they were forced to flee to Iran with only a week’s notice
·That they have some identity documents from the Iranian government such as his wife’s parents citizenship of Iran
·He and his wife paid to have their son’s name included in his wife’s passport as it is impossible to add a son to a wife’s passport without father present
·As he was waiting for a partner visa for his wife and son to come to Australia he travelled to Iran because his wife was [very distressed] because of the circumstances
·Reason that he didn’t mention brother’s name was that he was told by smugglers that if he did his brother would be jailed and his visa would never be issued
·His son is studying at school calling himself an Australian
·He has a daughter born in Australia
·That to claim that it’s okay for him and his family to return to Iran is not true. He questioned whether anyone followed up on those who returned to see how they were living and whether they were still alive.
The pre-hearing submissions by the family’s English teacher and friend spoke positively of their contributions to Australia and in particular the former spoke of their son’s education.
The medical submission was from the applicant’s wife’s [Doctor]. He wrote that she suffers from [a mental health condition].
At the hearing the applicant was asked whether he knew of why the Department had decided to cancel his visa to which he responded that when he entered Australia the visa given was based upon being stateless as well as that he didn’t mention an older brother. He stated that he wasn’t sure if his brother provided documents to the Department or not but that documents indicated that his brother was not stateless and on that basis can’t be stateless. Nevertheless, the applicant continued to claim that he is stateless.
I asked him about his family to which he responded that he has an older brother whose original name was [Mr A] but he changed it to [Mr B]. The documents that show [Mr B] as an Iranian citizen, the applicant claims, were made available to the Department by [Mr B] to spite the applicant. I asked if he knew what the documents were and he responded an ID and passport. I asked if he thought the documents were genuine and he responded that they can be genuine but fraudulently obtained.
He mentioned another brother, [Mr C]. He is now an Australian citizen. The applicant didn’t mention him in his protection visa application form because the people smugglers told him not to mention him.
He mentioned a sister, [Ms D]. She arrived to Australia after the applicant and applied for a protection visa.
He mentioned a second sister, [Ms E], who remains in Iran.
He stated that his mother and father live in Iran. I asked why he had stated that his mother was deceased on his protection visa application to which he responded that he was told to say that by the smugglers.
I asked the applicant how he left Iran. He responded that smugglers gave him a passport to use to leave Iran. He also had a second passport on him that his father gave to him which was his brother, [Mr B]’s, passport.
The applicant stated at the hearing that his grandfather was residing in Ilam, Iran, and then for reasons either of a job or migration he and his brother went to Iraq. According to the applicant, they lived for a long time there. His grandfather and his wife’s grandfather were brothers and their sons were born in Iraq. They lived and worked with Iraqi documents there until Saddam’s time. When Saddam came to power he expelled the Kurds from Iraq. The applicant stated that his father came to Iran as did his wife’s father at that time which was before the Iran Iraq war. (In his protection visa application he stated that he left Iran when he was [an infant] in [date].)
I asked the applicant what type of refugee cards did his parents get when they moved to Iran. He responded that they received the green card but when they applied for permanent migration they took the card from him and his application was refused. He was required to leave along with the rest of the family. They only stayed because the Iran-Iraq war had started so they couldn’t return to Iraq. His father survived by using documents that he had obtained through what the applicant assumed was bribing officials. He claimed that his parents obtained genuine documents illegally. The document the applicant received was the Shenasnameh (ID/birth certificate). It stated that he was born in [date] in Shahr Ray, Iran (the applicant explained that Shahr Ray is a region connected to south Tehran). He claims that he is not sure if it is genuine and obtained illegally or a fake document.
He claimed that his brothers and sisters got the same document.
With regards to his wife, he claims that when she was [age] years old her father paid a lot of money to obtain his wife’s documents. I put to him that it sounded under the circumstances that he wouldn’t know whether they were obtained illegally and that it was possible that her family obtained the documents legally. The reason he claims that they were obtained illegally was that his wife’s brother and sister don’t have documents.
I asked if he had ever had a problem with the government with regards to his documents to which he responded that he had not.
I put to the applicant that it appears that his wife and son have Iranian nationality and on their cards it states that he too has an ID number which suggests that he is a national of Iran. He responded that the number is from the false ID mentioned earlier.
The Tribunal put to the applicant adverse information from his brother and his sister under s.424AA. I explained that there were two sets of information that indicated that his family were not Iranian citizens.
The applicant’s brother, [Mr B], had submitted to the Department a Shenasnameh. It states that [Mr B] was born in Shayr Ray and provides the date along with his father’s name and mother’s name. The certificate states that it was created [date] ([date]). I stated that this suggests that it was created when he was born. The other side of the document listed [Mr B]’s wife and his wife’s Shenasnameh number. It also included information on the date that [Mr B] changed his name from [Mr A] which was undertaken in 2008. I put to the applicant that this indicates he is a citizen of Iran.
The applicant responded that he wasn’t sure if it is a genuine document or not. I put to him that the Australian government has examined the document and concluded that it is genuine. He responded that the photo of his brother on the certificate was of his older brother but the certificate was obtained when the applicant was very young. I responded that photos and documents like passports can be updated with newer photos. (I note that this is evident from the fact that his change of name is dated to 2008.) The applicant claimed that all he knows is that his brother had documents in the past as described above. I once again put to the applicant that the Australian government has confirmed that they are genuine documents. The representative at this stage clarified, despite the earlier assertions of the applicant, that the issue isn’t that it’s a fake document but rather that it was a fraudulently obtained genuine document.
I asked whether the passport that he used to exit Iran was in his name to which he responded that it was. I asked how he obtained that passport to which he responded from the smugglers. I expressed my concerns with this as it appears he had a passport to enter Australia and had documents which he could use to obtain an Iranian passport to leave Iran, why would he need to go through people smugglers to get a fake passport? He responded that he didn’t dare obtain an original passport based upon his documents. I put to him that it seems strange that he didn’t dare to get a passport based upon documents that had never proven to be problematic for him for years but he was willing to use a passport that a people smuggler gave him. He responded that he didn’t have a choice. I put to him once more the two choices he had and asked why he chose to use the passport provided by the smugglers. He responded that he was afraid to go to the government office to get a passport.
The representative clarified the applicant’s response by adding that he accessed an alternative passport exiting Iran because he feared that in the process of getting a passport on his ‘false’ documents that he would be caught.
Continuing with the questions under s424AA I raised the second matter of his sister’s claim that she is Iranian. I raised at the hearing that in an interview with the Department his sister admitted to being an Iranian citizen and that she was born in Tehran in [date]. I asked if he had comments. He said that since she is older than him then the date is correct. I put to him that she claims she was born in Tehran and as she is older than him then he was born in Iran. He responded, yes, that is correct. He admitted to have been born in Shahr Ray, Iran. He confirmed that he was not born in Iraq. I asked him why he was claiming to be born in Khanequin, Iraq, or Baghdad, Iraq.[1] He responded that smugglers had told him to say that. He claimed that his family used to tell him when he was young that he was born in Iran. He still suspects that he was born in Iraq despite being told that he was born in Iran. I put to him that he had earlier said that his parents moved to Iran before the Iran Iraq war which began in 1980 and that if he claims that he was born in [date] he must have been born in Iran according to his own story. I asked him whether he saw the flawed logic of his reasoning. He responded that he doesn’t recall where he was born, but when he was [age] years of age he can remember that there was the Iran and Iraq war.
[1] See for example [file number] folio 56
His representative argued that it could be possible that he was born in Iraq but parents knew that he couldn’t get a Shenasnameh if they claimed that he was born in Iraq and so they put false information on the false documents to avoid risk of inconsistency. As such they put a false date of his birth, namely, after their arrival to Iran which allows then for them to put an Iranian place of birth. I do not accept this argument as the applicant stated that he remembered being told that his parents moved to Iran before the war between Iran and Iraq which began in 1980. In his statutory declaration dated 18 April 2017 he states that it was at the time when Saddam Hussein was the leader of the country. Saddam came to power in 1979. In addition I put to him that [Ms D], his older sister, was born in [date]. The representative claimed that the same possibility of the family intentionally falsifying birth dates and locations exists for his sister. I put to the applicant that were the family intent on falsifying documents to show that their children were born in Iran then they would have falsified [Ms D]’s birth date as well to be after their arrival to Iran so that she too is shown to have been born in Iran. For these reasons I find that he was born sometime after 1980 in Iran.

The applicant stated that he didn’t know what his sister said or claimed. But had she said what I had put to him he offered one possible reason. His brother had animosity towards them and had manipulated his sister by telling her that he had shown his identity documents to the department and nothing had happened to him and so if she showed them then nothing would happen to her also. The applicant also wondered whether his brother had threatened his sister not to fight the claim that they had Iranian documentation. The applicant claimed that the reason that his brother would act in this way could be to harm him and his sister. According to the applicant his brother has a [drug addiction]. Since coming here he has been involved in fighting and arguments with his wife that led to physical assault and his wife leaving him. He blames the applicant and other family members for his circumstances. When he fought with his wife she would come to the applicant’s place or his sister’s to seek refuge. That is why his brother is angry. His brother would tell him not to provide shelter to his wife but she wouldn’t have anywhere else to go.
I explained that the reason why this information relating to his brother and sister is important is that it relates to the Iranian nationality law. I read to the applicant Article 976 on the Iranian Nationality Law which states:
Article 976 – The following persons are considered to be Iranian subjects:
5 – Persons born in Iran of a father of foreign nationality and have resided at least one more year in Iran immediately after reaching the full age of 18; otherwise, their naturalization as Iranian subjects will be subject to the stipulations for Iranian naturalization laid down by the law.
The applicant responded that there are millions of Afghans, Iraqis, Kurdish including for example doctors or those who work in an office, such as his wife’s [uncle], who were expelled from Iraq but were unable to get documents. ‘My daughter is Australian citizen but son has no visa and yet this is Australia. In Iran nothing exists,’ he said.
Was there non-compliance as described in the s.107 notice?
The first issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects
·On the 866 application form for a protection visa in response to the question of whether any of the persons included in the application have close relatives who are in Australia at the time of application the applicant stated, ‘no’.
·On the same 866 form the applicant stated that his citizenship at birth was ‘nil’ and that his then current citizenship was ‘nil’.
·On the same 866 form the applicant stated the reason for leaving Iran as being ‘I left because I was fearful of serious harm due to my Kurdish ethnicity and my lack of legal status in Iran and for other associated reasons which I will explain fully in my statutory declaration to be provided shortly.’ At a subsequent section he wrote, ‘I believe this will happen because of my Kurdish ethnicity and my lack of legal status in Iran and other associated reasons.’ Again in the form he wrote, ‘I have no legal status in Iran and it is the authorities in Iran that I fear harm from.’
·In the statutory declaration submitted to accompany the application form he wrote the following according to the s.107 notice:
I [name]…

I fear serious harm in Iran from the Iranian government and its agents…

I fear this harm because of my Kurdish ethnicity (specifically because I am Faili Kurd) and because I am stateless. I am stateless because I am a Faili Kurd…

I did not have any siblings so it was just me and my parents…

Because of our status in Iran as stateless Faili Kurds, we lived in hiding, always in fear of being arrested and detained…In Iran I have never had the right to identification…

I have spent my whole life in fear of being detained by the authorities and having my Faili Kurd identity and my lack of Iranian citizenship discovered.
The applicant has admitted to the Tribunal that he has siblings. That he stated he did not on the application form I find to be incorrect information.
In addition, the applicant’s son appears on his mother’s Iranian passport. Country information identified by the delegate notes that women cannot automatically transfer their nationality to their children and as such the applicant, as the father of a child identified as holding Iranian citizenship, must himself be an Iranian citizen. The applicant claims that he had paid substantial amounts of money to bribe officials to arrange for this to occur.
Overall I am not swayed by the arguments put by the applicant. The evidence in support of the argument that the applicant is a citizen of Iran includes his sister’s statements that she is Iranian which is supported by their brother’s documents in addition to the applicant’s son appearing on his mother’s passport. Country information suggests that citizenship is conveyed through the father, therefore, if the applicant’s brother and sister have citizenship then so would he.[2] The applicant stated that everyone in his family had fraudulently obtained genuine documents and once those documents were obtained he preferred to access a fake passport in his name through a smuggler rather than acquire a genuine passport based upon his genuine documents. With regards to the applicant’s argument that he chose the risk of passing through an Iranian airport using a smuggler’s passport over acquiring a genuine passport alongside his other genuine documents I find unconvincing. Considering that the applicant has admitted to repeatedly lying to the Australian government including about his mother’s death, regarding his siblings and even using a fake passport in his brother’s name to enter the country I do not accept the applicant’s story of how he departed Iran. That there are a number of different sources of evidence indicating that the family are citizens of Iran alongside a law of Iran allowing for citizenship to persons in his circumstance I find that the applicant is not stateless but rather is a citizen of Iran. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
[2] Nationality Law: Article 976 (2)
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.
The correct information
The applicant’s sister admitted to holding Iranian citizenship and his brother produced documentary evidence which supported his claim that he is an Iranian citizen. Based upon Article 976 on the Iranian Nationality Law these facts mean that the applicant himself is an Iranian citizen. For this reason I find that the correct information is that the applicant is a citizen of Iran and not stateless. I place considerable weight in favour of exercising the discretion to cancel the visa.
The content of the genuine document (if any)
As no document was provided there is no genuine document to consider.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document
The decision by the Department to grant the applicant a protection visa included the following remarks:
I find that the applicant is stateless and is a former habitual resident of Iran.
…
I find that the Convention ground of ethnicity is the essential and significant reason for the harm feared.
…
The applicant claims to fear physical harm, harassment, detention, imprisonment and torture in Iran. He has no rights to employment, citizenship, education or health care.
…
The applicant has been consistent in the presentation of his claims and whilst he has been unable to provide any evidence to support his claimed identity, there is no reason to doubt his credibility in this case…I have considered current country information to determine whether or not the applicant’s claims are commensurate with independent country information.
While many Faili Kurds, who were expelled from Iraq by Saddam Hussein’s regime, or are children of those expelled, were issued with green cards and other forms of documentation by the Iranian authorities, many remain undocumented. Undocumented Faili Kurds living in Iran have no legal rights, including permission to work, the right to enter into formal schooling and the right to own property. This lack of civil rights has resulted in extreme hardship, often affecting their ability to subsist. Undocumented Faili Kurds who come to the attention of the Iranian authorities are at risk of deportation to Iraq.
I am prepared to accept that the applicant may be subjected to serious harm and persecuted in his home country.
I find that the decision to grant a visa was based wholly on the applicant’s incorrect information of being a stateless Faili Kurd as opposed to a Faili Kurd with Iranian citizenship. The distinction is in the statelessness rather than the ethnicity as is evident in the quotes text above and the remainder of the decision despite the delegate noting that ethnicity is the essential and significant reason for the harm. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant came to Australia when he was[middle aged], the uncertainty of his age arising from contradictory information over his exact date of birth. He admits to having provided incorrect information regarding his mother and siblings upon arrival to Australia and said it was because he was told to do so by a people smuggler. The non-compliance by the applicant claiming that he was stateless occurred at the same time. I accept that it is likely that the instructions to claim statelessness would have been an initiative of the smuggler, but I note that the applicant was an adult at the time and would have had the cognitive ability to choose to either follow the instructions of the smugglers or provide the correct information. He willingly chose the former. I place considerable weight in favour of exercising the discretion to cancel the visa.
The present circumstances of the visa holder
The applicant is married and has [number] children. He has been living in Australia since [date] July 2009. His wife and [age]year old [Child 1] arrived to Australia on [date] January 2013. His [age] year old [Child 2] was born in Australia. He stated that his wife has [mental health issues] and that she is engaged with a [Doctor]. In this regard the visa holder does not have circumstances that are due consideration other than those as a father of [number] children and husband to a wife who has mental health issues.
While the applicant will face challenges as a father re-establishing his family in Iran including finding work and re-integrating his eldest child into school and educating his youngest in the Iranian context it is a situation that poses minimal hardship upon him.
As a husband to a wife with mental health issues I put to the applicant that I had read the World Health Organisation’s Mental Health System in The Islamic Republic of Iran[3] report and found that its conclusions suggest that while there are shortcomings in the Iranian government’s response to mental health issues that it is a well-resourced and competent system. As such any mental health issues that his wife may encounter can be adequately addressed through the Iranian system. The applicant responded that his wife’s situation requires long treatment and for this to happen he needs to be in a good financial situation. Even if he has the finances and she receives the treatment the issues are such that she cannot get better just on medication, but requires better circumstances in general to be healthy again. If living in a situation that is not a desirable one then she can revert back despite her treatment. This diagnosis is beyond the diagnosis offered by the [Doctor]. While I accept that remaining in Australia would be preferable for the applicant’s wife who has been diagnosed with [a mental health condition]the evidence before me suggests her medical treatment can be undertaken in Iran.
[3] Available at [accessed on 24 July 2017]
I accept that the applicant will face challenges as a father re-establishing his family in Iran and that for his wife it would be preferable to remain in Australia in weighing these I give them little weight against exercising the discretion to cancel the visa for the reasons given above.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has claimed and continues to claim that he is stateless.
The applicant claims that when he applied for his wife to come to Australia his case officer noted the issue of his son appearing on his mother’s passport. Country information identified by the delegate notes that mothers cannot automatically transfer their nationality to their children and as such the applicant, as the father of a child identified as holding Iranian citizenship, must himself be an Iranian citizen. The applicant claimed that he explained the full story of how he had to pay for this to occur as otherwise they would have been unable to leave Iran. Considering that I have found that he is not stateless I find that this is a further instance of the applicant’s ongoing withholding from the Australian government the correct information.
In 2014 the applicant applied for citizenship and sat for the test. At this stage he again persisted with his claims regarding his and his son’s statelessness.
That he has persisted on numerous occasions since the initial provision of incorrect information I place considerable weight in favour of exercising the discretion to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
None that the Tribunal is aware of.
The time that has elapsed since the non-compliance
It is almost 8 years since the non-compliance occurred, when the applicant lodged the documents in August 2009 that led to his being granted a protection visa. I place moderate weight against exercising the discretion to cancel the visa for the reason of his lengthy stay in Australia.
Any breaches of the law since the non-compliance and the seriousness of those breaches
None that the Tribunal is aware of
Any contribution made by the holder to the community
The applicant has been working as [occupation]since he first arrived to Australia.
The applicant said that he has been involved with the Kurdish-Iranian community by way of attending ceremonies and events as well as [voluntary work].
I accept the statements made by the applicant. While he has been gainfully employed and has participated in his cultural community I only place little weight against exercising the discretion to cancel the visa for the reason that working contributes to the community tangentially by way of payment of taxes and contribution to economic activity while the nature of his contributions to his cultural community have been limited to some voluntary work.
Other considerations
The applicant raised the fraud that his wife committed in getting herself and his son out of the country claiming that she would be in trouble with the authorities. Having found that the applicant is not stateless and that his son was listed on his mother’s passport as being a citizen I find that this claim has no merit and as such give it no weight.
The prescribed circumstances as listed under Reg 2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.
Whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations
Were the applicant’s visa to be cancelled and the applicant voluntarily returned to Iran it is incumbent upon the Tribunal to consider whether he may face a degree of harm such that Australia’s international treaty obligations would be breached. The following were identified: The applicant having sought asylum in a Western country, having participated in Kurdish cultural activities while in Australia, dangers from his wife’s family, having embraced Western cultural characteristics and being Faili Kurd. I will proceed to address each one.
Failed Asylum Seeker
With regards to seeking asylum I put to the applicant the following country information and asked for his response:
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 …without official interest.
The applicant stated that the problem is what happens in two to three years after they return, whether his children can attend school or get a job. He claimed that this quote from the Department refers to Iranians and Iranian returnees, but he is Kurdish. I address the applicant’s claims of different treatment of Kurds below as well as the best interests of his children, but as far as risks to the applicant associated with the return as a failed asylum seeker based upon country information and with no additional evidence provided by the applicant to consider I find that the applicant would not face a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm was he to return to Iran.
Participated in Kurdish cultural activities while in Australia

The applicant said that he has participated in Kurdish community groups in Australia. He claimed that Kurdish groups in Australia advocate for independence and by being seen among them that he would be associated with them. The applicant said that he only attended their celebrations once a year. I put to the applicant that he didn’t join a political group but rather a community association of whose membership has a wide range of political views and that he wouldn’t be imputed with holding political opinions simply for participating in cultural celebrations. He responded that it is likely that nobody finds out and nothing happens but there is a possibility. He said that if he had known of the possibility he wouldn’t have participated in these events. He said that these events were videoed and that he heard others who participated had family members visited by security agents in Iran. He said that he didn’t know what if anything happened to them.
Having put to the applicant that he wouldn’t be perceived to be political for attending annual cultural celebrations and as such that he wouldn’t be at risk, a position supported by country information[4], and having heard his responses, I am satisfied that he does not face a real chance of serious harm or a real risk of significant harm upon his return for the reason of imputed political opinion.
[4] ‘Iranian authorities occasionally are aware of the activities of Iranians abroad, especially in Turkey. It appears authorities monitor the activities of high profile figures and members of civil society more closely. ‘IRAN: Response to CIS Request No. IRN11072; Return of failed asylum seekers’ 2010, DFAT, 22 December, CISNET: CX255525. Additional information
I have also considered the risk to the applicant were he to return to Iran and continue to participate in community events in the below section under Being Faili Kurd.
Dangers from his wife’s family
The applicant stated that his wife’s family are controlling of her such that they choose the clothing that she wears and where she lives. He also raised the possible problem of fraud that his wife committed in getting herself and his son out of the country stating that she would be in trouble for that. As the consideration of the cancellation of this visa is for the applicant and the non-refoulement review is based upon the applicant’s claims for protection (his wife was not listed on his protection application) I do not take into consideration the circumstances of his wife other than how it may relate to him.
The applicant claimed that because of the controlling nature of his wife’s family that his life will be impacted. I put to the applicant that country information on the cultural context of Iran suggests that when women are married they then move into the husband’s family and as such he had the authority and the right to establish a distance from them. The representative disagreed with this analysis. I requested that through a post-hearing submission she submit information to the contrary. No information was received. I do not accept that the applicant’s family can harm the applicant such that he faces a real chance of serious harm or a real risk of significant harm.
The applicant believes that he faces pressure not to stand up against the family and protect his wife as he fears her family could report them to the authorities for having sought asylum, come to Australia illegally and illegally arranging a passport for his son. As I have found that his son’s departure from Iran was not illegal and that being a citizen of Iran he did not breach any Iranian laws in entering Australia without a valid visa the only remaining concern is whether his in-laws would report him for having sought asylum in Australia. Having considered this matter above and having found that the Iranian government would not cause him serious or significant harm I find that were his in-laws to report him he would not face a real chance of serious harm or a real risk of significant harm.
Having embraced Western cultural characteristics
With regards to having embraced Western cultural characteristics I put to the applicant the following country information and asked for his response:
DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle… Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.
The applicant claimed that people who come here have a very different pattern of thought and that access to the internet leads to a more open mind about human rights, children’s rights and women’s rights. For example, his wife’s clothing is different to what it is in Iran. She would wear a hijab in Iran but it’s not required in Australia. Based upon the above country information, which exhibits the extent of ‘Westernized’ Iranians, and the applicant’s only evidence being that he has different ‘thought patterns’ and that his wife would have to wear a hijab I find that this does not amount to the applicant facing a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm were he to return to Iran.
Being Faili Kurd
With regards to being Faili Kurd I put to the applicant the following country information and asked for his response:
3.6 Following discussions with a range of credible non-government sources, DFAT is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. Contacts are not aware of Faili Kurds not approaching Iranian authorities due to fear of mistreatment, although they were not prepared to rule this out.[5]
[5] DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014
He said that it can be true because it’s true for the people who obtain legal documents. But it doesn’t apply to people who have no documents or obtained their documents in an illegal way. Other country information suggests that Iranian citizens of Faili Kurd ethnicity are entitled to access all of the services that are available to any other Iranian citizen.[6] As they have identity documentation that demonstrates that they are citizens, they have access to healthcare and health insurance, education and state benefits.[7] As citizens they are entitled to travel across Iran without restriction[8] and have access to employment on the same basis as other Iranian citizens.[9] Identity documents would be required to buy a house, car, mobile phone or establish a utilities account, and as citizens they are able to produce such information to satisfy the requirements for the access to such products and services.[10]
[6] Ibid [3.53]
[7] Ibid [3.54]
[8] 5.13 Iran’s Constitution provides for freedom of movement within the country, foreign travel, emigration and repatriation. Generally, Iranian citizens can live wherever they choose. DFAT assesses the prospects for internal relocation of Faili Kurds who are Iranian citizens inside Iran to be no different to those for other Iranian citizens. DFAT Thematic Report Faili Kurds in Iraq and Iran 3 December 2014
[9] DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 [3.62]
[10] DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 [3.58]
Based upon the country information presented at hearing and extensive information supporting this view alongside the evidence provided by the applicant I find that for being Faili Kurd ethnicity the applicant does not face a real chance of serious harm in the reasonably foreseeable future nor a real risk of significant harm were he to return to Iran.
Cumulative considerations
I have also considered the risk the applicant faces based upon the cumulative circumstances, namely that he is of Faili Kurd ethnicity, had sought asylum in Australia, faces pressure from his wife’s family, participated in the local Kurdish community and has developed Western thought patters.
Even when considered cumulatively I find that there is not a real chance or a real risk that the applicant will face serious or significant harm respectively based upon the country information available above and having turned my mind to the each of the claims independently and now cumulatively.
Convention on the Rights of the Child (CROC)
The Tribunal has considered the Convention on the Rights of the Child (CROC). This includes taking into account the best interests of the child, which is a primary consideration. The Tribunal also notes that the CROC considers the unity of the family an important consideration.
The Tribunal notes the following particularly, but not exclusively, relevant provisions of the CROC.
Article 3
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Article 9
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
Article 24
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
The applicant and his wife outlined their concerns for their children. These included the wife’s family being particularly religious and the generally religious nature of Iranian society.
Country information was provided in a post-hearing submission regarding the circumstances of two girls [in] particular that the applicant’s children would be entering into circumstances similar to these girls and as such the daughter in particular could suffer the same fate. While the circumstances of [these girls] are horrific there is no specific information in the reporting that would suggest that there is a generalised environment of sexual violence against young girls in Iran. For this reason the Tribunal has given this information limited weight in considering the circumstances that the children will face were they to return to Iran.
Having addressed concerns over the influence of the applicant’s in-laws earlier I do not accept that they would be in a situation to cause such harm that provisions of the CROC would be breached were the family to return to Iran. For this reason I put no weight on this matter.
Regarding the religious nature of Iranian society and their dislike of raising their children in such a society I put information to them that one quarter of Iranians don’t attend religious services at all and only another quarter attend major holy days and as such put to the applicant that they could chose to live like half of the rest of the population of Iran.[11] They responded that they don’t have the financial resources to live like that as only better off Iranians live in areas where religion is not practiced as strictly. Considering that the figures amount to half of all Iranians I put little weight to this argument.
[11] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16]
The general matter of the children’s education and re-integration into Iranian society is also considered. As detailed above, Iranian citizens of Faili Kurd ethnicity are entitled to access all of the services that are available to any other Iranian citizen including education. The eldest son arrived to Australia when he was [age] years old. The first formal year of education begins at the age of six in Iran. He has since been educated in an Australian school. He is currently [age] years old. Returning back to Iran would be a challenging endeavour in particular transitioning to a new primary language, reintegrating into society and studying new subjects. While acknowledging this it would be speculative to suggest that the applicant’s son’s interests would be better served were he to complete his education in Australia than to complete it in Iran and furthermore this incorporates value judgements beyond the purview of the CROC which requires simply that state parties ‘ensure the child such protection and care as is necessary for his or her well-being’. I find that the Iranian government provides adequate services such that the well-being of children would be met.
The daughter was born in Australia. I find that she is entitled to Iranian citizenship for the reason of being born to Iranian parents according to Article 976(2) of the Iranian Nationality Law. As with the son the daughter will have access to Iranian education. Not having begun formal schooling in Australia her transition will be less challenging and as with her brother it is speculative as to whether she will prosper better in Australia’s educational system than in Iran’s.
Regarding family unity, the Tribunal considers that the unity will be maintained by the applicant's son and daughter returning to Iran with their parents.
In considering the best interests of the child overall, I have taken into consideration the challenges both children will face while at the same time acknowledging that family unity can be maintained if they both accompanied their parents to Iran. As the children will have access to a formal education that is no different to those of other Iranians but noting the challenges I give this primary consideration little weight against exercising the discretion to cancel the visa.
Additional considerations
The Department’s guidelines set out other additional matters that should be taken into account where relevant. This includes whether there are other persons whose visas may be cancelled because they are family members, mandatory legal consequences to a cancellation decision, for example detention as well as whether indefinite detention is a likely consequence of the cancellation decision.
I have considered whether there are other persons in Australia whose visas would, or may, be cancelled because they are members of the same family unit. Both the applicant’s wife and son’s visa would be cancelled as a result of this cancellation. As I have considered the impact upon them in earlier sections I do not give additional weight to this outcome in this section.

100. I now turn my mind to consider whether there are provisions in the Act which prevent the applicant from making a valid application for any visa without the Minister personally intervening. In this applicant’s case these are s 48, s 48A and s 189. When exercising these provisions the applicant will not be able to make any further lawful applications nor be issued any further visas other than those prescribed or without Ministerial intervention and therefore, he may be detained.
101. Whilst detained the applicant has the option of returning to Iran. If he chooses not to involuntary return becomes a possibility. The fact that the Iranian regime does not accept involuntary returns is a matter at the forefront of my mind. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention due to the Iranian regime’s refusal to accept involuntary returnees. In this case it does not. The applicant is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.
102. There are no other matters that I deem relevant to consider.
103. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having considered the weightings in favour and against exercising my discretion to cancel the visa, which amount to affirming the delegate’s decision, and having given regard to additional considerations, I conclude that the visa should be cancelled.
DECISION
104. The Tribunal affirms the decision 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.

[2017] AATA 2659

31 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction