1704848 (Refugee)

[2018] AATA 2835

1704848 (Refugee) [2018] AATA 2835 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704848

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Brendan Darcy

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2018 at 2:15pm

CATCHWORDS
 Refugee – Protection visa – Cancellation – Stateless – Race – Falili Kurd – Evidence of citizenship – Valid Iranian passport – Right to reside in Iran – Real chance of significant harm – Voluntarily returned to Iran to visit family – No experience of harm – Australian born child – Children able to resettle in Iran – Decision under review affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 34, 34A
Migration Act 1958 (Cth), ss 46A, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
Vaitaiki v MIEA (1998) 150 ALR 608
Wan v MIMA [2011] FCA 568

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information pertaining to his protection claims. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 June 2017 and 12 July 2017 to give evidence and present arguments. There were no witnesses at either of these scheduled hearings.  The Tribunal hearing was conducted with the assistance of an interpreter in the Faili dialect of the Kurdish language and English language.

4. Also present was the applicant’s authorised representative.

5. 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

6. 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 Immigration (the Department) of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. 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.

   Did the notice comply with the requirements in s.107?

8. In the present case, there are no questions as to whether the notice issued by the Minister’s delegate complied with s.107.

9. 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 (Notice of Intention to Consider Cancellation)

10. The s.107 Notice advised that a delegate of the Minister considered there had been non-compliance 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

11. The s.107 Notice provided details of the applicant’s circumstances. The notice was originally mailed by registered post on 4 November 2015.[1] This notice was returned to the Department by Australia Post.[2] It was resent on 25 November 2015 by email as agreed upon between the Department and the applicant as outlined in an email dated 25 November 2015.[3]

    [1] [Department file number] Folio 26-37.

    [2] [Department file number] Folio 39.

    [3] [Department file number] Folio 46.

12. The notice identified, at Part B of the applicant’s entry interview on 24 June 2010, responses to several questions. When asked as to his citizenship at question 7, the applicant answered ‘None’; when asked as to his ethnicity at question 15, the applicant answered ‘Kurdish’; and when the applicant was asked to provide reasons for leaving his country of nationality or residence, the applicant stated that he and his child have no identity, no future, no freedom, no rights to live in Iran and that his child cannot study in Iran.

13. The notice also identified that the applicant had provided information when he provided information as part of the Refugee Status Assessment on 4 August 2010, and in answers provided in the Form 866C and a statutory declaration as provided with the application. When asked as to his citizenship in Parts A and C of Form 866C, the applicant had answered ‘None’; and when asked if the applicant was stateless, when and why the applicant lost citizenship, the applicant answered ‘Never had citizenship’. Furthermore when the applicant was asked if he had difficulties obtaining a travel document in his home country, the applicant responded that he had.

14. In the statutory declaration dated 4 August 2010, the applicant made the following claims:

    ·     The applicant’s parents were born in Iraq and were deported by Saddam Hussein when he made Faili Kurds leave;

    ·     The applicant’s father was provided a ‘green card’ so the applicant was not able to go to school and started work at the age of [age deleted] by selling things on the street;

    ·     The applicant and his future wife were going out together seven years ago, when they were arrested by the Basij. When the Basij members found out they were Kurdish they accused the applicant and his future wife of breaking the law and verbally abused them;

    ·     The applicant was arrested again by members of the Basij when the he became engaged with his fiancée (now wife);

    ·     The applicant lived at the mercy of the Basij and he had no rights, including rights of ownership and to medical insurance, a drivers licence or a bank account;

    ·     The applicant was unable to lead a normal life without constant harassment and persecution by those in authority, including the Basij; and

    ·     The applicant has no rig ht to return to Iran and the applicant and his family have no rights in Iraq either.

15. At Part G of the applicant’s Form 866C, he signed and dated a solemn declaration that the information he supplied on or with this form and statement of claims was complete, correct and up to date in every detail and that he understood that if he had given false or misleading information, his request for refugee status may be refused or that his refugee status, if recognised, may be revoked.

16. In the Form 866B at questions 20 and 23 the applicant had written that he was stateless and that his parents were born in Baghdad and were deported when Saddam Hussein made the Faili Kurds leave. At questions 49 and 50, the applicant claimed that a smuggler provided a passport for money and that the passport was false. 

17. On the basis of the claims, the applicant was granted a protection visa on 8 November 2011.

18. On 17 October 2013, the applicant re-entered Australia with his family after three months in Iran visiting his parents. The applicant was interviewed at [Airport 1] on his return to Australia and produced a valid passport issued by the Iranian authorities in Canberra on [date] 2013. The delegate said in the s.107 Notice that the applicant would have to have provided to Iran’s diplomatic mission in Canberra with a document to demonstrate his legal entitlement to an Iranian passport, that country information indicates that only Iranian citizens are entitled to an Iranian passport and that this is undertaken through submitting a genuine Iranian birth certificate (Shenasnameh) and Iranian national identification card (Kart-e-Melli).

19. The delegate also noted that his passport lists the applicant’s last lawful departure as 6 February 2010 contains the name of the his father, and these facts reasonably demonstrate the applicant departed Iran in 2010 as a citizen and acquired citizenship by descent from his father. The delegate, accordingly, deemed the information in the Entry Interview, the 866 Forms and the statutory declaration referred to above, to be incorrect. The delegate noted that this was in contravention of s.101(b) of the Act.

    Response to the s.107 Notice

20. The applicant did not respond to the s.107 Notice within the fourteen days required.

21. On 14 December 2015, the applicant’s representative made a freedom of information request for a complete copy of the applicant’s protection visa application and requested an extension to respond to the s.107 Notice which was granted until 1 February 2016.

22. An International Treaties Obligations Assessment (or ITOA) commenced on 21 January 2016 according to a formal ITOA request.[4] There is evidence in this document that the applicant had separated from [Ms A], who was the secondary applicant holder of his cancelled subclass 866 visa. It also outlines that the applicant’s brother, [name deleted] born [year], and his spouse, [who] had arrived in Australia as irregular maritime arrivals, had made similar claims to the applicant and were referred for an ITOA to assess whether the circumstances of the case engage Australia’s non-refoulement obligations.[5]

    [4] [Department  file number] Folio 72-73.

    [5] [Department  file number] Folio 72-73.

23. On 22 February 2016, the applicant’s then migration agent/lawyer wrote to the Department in response to the notice.[6] The submission argues that the delegate should not have reached a state of mind to justify the issuing of the s.107 notice and there is insufficient probative evidence to establish that their client used a legitimately issued passport to depart Iran on 6 February 2010 or not enough evidence that the applicant used an illegally-obtained false passport for this departure. They reiterated that the applicant had not acquired Iranian citizenship at birth and was stateless at the time of application.

    [6] [Department  file number] Folio 82.

24. In this submission, the applicant has maintained that the passport found on his person was fraudulently obtained from the Iranian diplomatic mission in Canberra; that his father organised for him fake Iranian Shenasnameh and identification cards to be used to procure this passport; that there is no incorrect information submitted and; and the applicant satisfies r.2.41 of the Migration Regulations 1994 (the Regulations); and that the Department risked breaching its non-refoulement obligations in cancelling the visa on the basis that the applicant’s ethnicity as a Faili Kurd is not in doubt and that there would be a real chance of persecution or a real risk of significant harm based on this. It was also argued that the delegate should make a favourable decision in favour of the applicant’s dependants: his wife; his Iranian born daughter, [Child 1], who holds a protection visa; and his Australian-born child, [Child 2], who is an Australian citizen.

25. With regard to r.2.41 and other factors, the submission noted that even if the Department reached the view that the applicant did not provide correct information in relation to his nationality, Australia’s protection obligations would still arise given his ethnicity as a Faili Kurd and given the impact on his children.

26. On the Departmental file is a copy of a birth certificate and passport issued by Australian authorities, belonging to [Child 2], born [date]. The birth certificate indicates that the child’s father is the applicant and the mother is [Ms A].[7]

    Section 109 cancellation decision

    [7] [Department file number] Folio 74-75.

27. On 21 February 2017, a delegate on behalf of the Minister under s.109 of the Act proceeded to cancel the applicant’s class XA subclass 866 protection visa which had been issued on 8 November 2011.

28. The delegate outlined in their decision record, submitted as part of this review application, that the applicant had breached s.101(b) of the Act as he did provide not corrects answer in his application, including in his entry interview held [at Detention Centre 1] on 24 June 2010, his Refugee Status Assessment and statement of claims signed on 4 August 2010 and his accompanying Forms 866B and 866C lodged on 4 August 2010.

29. The delegate outlined the information that had been provided by the applicant in Parts B and C of his ‘entry interview’ held [ at Detention Centre 1] on 24 June 2010, his request for refugee status and a written statement of claims on 4 August 2010 and the applicant’s protection visa application incorporating Forms 866B and 866C.

30. In each of these documents, the applicant claimed he had no citizenship, that his ethnicity was ‘Kurdish’ or ‘Kurdish Faili’ and that he did not wish to return to his country of usual residence, Iran, where he and his family have no rights. In his 4 August 2010 Refugee Status Assessment, the applicant claimed that he travelled out of Iran on a false passport and he feared being returned to both Iran and Iraq. In his statutory declaration he stated that his parents were born in Iraq and were forced leave that country for Iran where his father received a ‘green card’ and where he was not allowed to access education and other rights. He also claimed he was beaten by the Basij who harmed his family for being Kurdish people. In the 866 forms the applicant stated that he solemnly declared that everything was true and correct.

31. The delegate outlined that on 17 October 2013, the applicant re-entered Australia with his family after a three month visit to Iran. He was interviewed at [Airport 1]and he produced an Iranian passport issued to him on [date] 2013 by the Iranian authorities in their diplomatic mission in Canberra.  The delegate stated that in order to be granted a passport, the applicant had to demonstrate his legal entitlement such as producing documents. It was noted that the applicant appeared to last lawfully depart Iran on 6 February 2010 based on the passport presented. It also demonstrated the identification numbers on the applicant’s Shenasnameh and Kart-e-Melli as well as his father’s name, all of which further indicated that the applicant was a citizen of Iran prior his application for refugee status in Australia.

32. The delegate included in their assessment that the applicant was non-compliant with s.101(b) of the Act, that the applicant did not provide the fraudulently obtained documents his father acquired to fraudulently obtain the presented passport, and that it was not credible that he lost his last fake passport and that he informed the diplomatic mission of the date he left when authorities were able to confirm the applicant’s movements on their own systems.

33. The delegate determined that the applicant was a documented Iranian citizen, who was not a stateless Faili Kurd. The delegate determined that the applicant had provided incorrect information with his application.

34. Having determined that a ground for the cancellation existed, the delegate considered whether the visa should be cancelled. The delegate considered the relevant provisions whether the visa should be cancelled under r.2.41.

35. With respect to r.2.41 (a), the delegate determined that the correct information that the applicant was an Iranian citizen had the right to reside in Iran, and that the applicant was not stateless as claimed.

36. With respect to r.2.41 (b), the delegate determined the applicant’s passport presented on arrival on 17 October 2013 was a genuine document, not fraudulently obtained, and that it had the correct name and date of birth of the applicant, the correct name of his father and the actual date of the applicant’s last lawful departure from Iran, being 6 February 2010.

37. With respect to r.2.41(c), the delegate determined that the decision to grant the applicant a protection visa relied significantly upon the incorrect information provided by the visa holder in relation to his claimed stateless Faili Kurd identity. Following the grant of the visa the applicant provided information that indicates he is not stateless, but is an Iranian citizen.

38. With respect to r.2.41(d), the delegate noted that the applicant’s representative responded on the applicant’s behalf and stated that his father arranged for a fake Shenasnameh and Kart-e-Melli to depart Iran in 2010. However the delegate found the surrounding circumstances not to be credible.

39. With respect to r.2.41(e), the delegate noted that the applicant and his wife have an Australian citizen child [age years old]. He further noted the Australian citizen child would automatically be deemed an Iranian citizen due his father’s status as an Iranian citizen.

40. With respect to r.2.41(f), the delegate determined that the applicant has continued to provide incorrect information about his identity and that the passport was lawfully but fraudulently obtained.

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

42. With respect to r.2.41(h), the delegate determined that six years had elapsed since the non-compliance. The delegate noted that this was a lengthy amount of time, however the delay in identifying the non-compliance was outweighed by the seriousness of the matter.

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

44. With respect to r.2.41(k), the delegate noted that the applicant was a taxpayer, but this is expected of all working members of the Australian community.

45. The delegate considered there would be a consequential cancellation for the applicant’s Iranian born daughter, [Child 1], under s.140(1) of the Act, and the delegate placed significant weight on this factor in favour of the visa not remaining cancelled due to the potential hardship faced by the applicant’s family members.

46. The delegate considered the international obligations that may be relevant. The delegate noted that the applicant had an Australian citizen child and thus the Convention on the Rights of the Child (CROC) was applicable. The delegate considered that the family would stay together. The delegate also noted that the children would be entitled to Iranian citizenship.

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

48. The delegate noted the legal consequences of the cancellation. He would be barred from making a valid application for a further visa. As an unauthorised maritime arrival, should the visa holder's protection visa be cancelled and he becomes an unlawful non-citizen, he would also be subject to s.46A(1) of the Act and barred from making a valid application for a further visa, including bridging visas, and may be detained. Only the Minister could intervene to permit the applicant to apply for a visa. If unlawful, the applicant was able to be detained and removed from Australia. The delegate also noted the potential that the applicant could be indefinitely detained in Australia.

1. The delegate found that the applicant had deliberately misrepresented his identity and fraudulently obtained permanent residence. Fraud of any kind is taken seriously by the Department and diminishes the legitimacy of Australia’s migration programme. The delegate was not satisfied that the applicant’s protection’s claims were credible as he was not a stateless person and was an Iranian citizen.

   Evidence before the scheduled hearings 

2. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 15 March 2017. The delegate’s cancellation decision, with its written reasons, was attached to the review application.

3. The applicant’s agent provided a submission to the Tribunal on 20 June 2017.[8] The submission concentrated on the mandatory and other factors as specified under r.2.41 (the prescribed circumstances) and other relevant information, including the best interests of any child.

   [8] AAT Folio 34-39.

4. The representative argued the following points for the Tribunal to consider:

   ·The delegate found the applicant’s wife had been granted Iranian citizenship by virtue of marriage to the applicant, who is in fact an Iranian citizen; however his wife and Iranian born child travelled on travel documents issued by Australian authorities, indicating that no family members were Iranian citizens;

   ·The applicant instructs the representative to inform the Tribunal that he is an Iraqi citizen since his father obtained that status in 2011. Supporting documents were submitted. The representative pointed out the citizenship was not acquired until after the claimed correct information about the applicant’s statelessness was submitted in 2010.

   ·If the applicant is an Iranian citizen, then his Iranian citizenship could be revoked and that the decision to cancel his visa should be assessed against his return to Iraq;

   ·The applicant had compelling and compassionate reasons for returning to Iran in 2013, and while he did not experience any apparent harm or hindrance, this does not substantiate the ground for cancellation;

   ·In the event the Tribunal determines that the applicant is not stateless, it is required to consider the key circumstances within the ambit of r.2.41 that falls in favour of the applicant;

   ·Of primary concern is the applicant’s Australian citizen child;

   ·The Tribunal should consider the impact of the unlikely event that the citizenship of the Australian born child will be revoked; and

   ·The Tribunal is to consider the best interest of the applicant’s children under the Convention for the Rights of the Children (CROC).

5. The submission provided the following:

   37. We request the Tribunal to have regard to the proscribed circumstances and to the guidelines in PAM. We submit that the Tribunal should give weight to the following considerations weighing in favour of not cancelling his visa:

   a.Best interests of the applicant’s children;

   b.The applicant’s current circumstances as a hardworking and law abiding resident;

   c.The applicant’s subsequent behaviour conceding that he provided incorrect information in the past;

   d.His otherwise compliant behaviour in Australia; and

   e.Considerable period of time he has been in Australia now.

6. In conclusion, the representative states that applicant insists he is a stateless Faili Kurd. Moreover, it was submitted that the rights of his Australian citizen child would be grossly undermined if he was forced to separate from him. This consideration, it was submitted, should outweight the alleged breach of s.101.

   Evidence at the scheduled hearings

7. The applicant attended a scheduled hearing on 21 June 2017. In attendance was the applicant’s representative. During this hearing, evidence was provided regarding whether the grounds for cancellation existed before it was adjourned.

8. On the day of this hearing, the applicant submitted a copy of the applicant’s Iranian driver’s licence which he claimed to be fake;[9]  copy of his [Australian State 1] driver’s licence which he claimed be fraudulently obtained;[10] an Iraqi identification card; [11] and a copy of the applicant’s travel document with entry/exit stamps in Farsi.[12]

   [9] AAT Folio 79-80.

   [10] AAT Folio 78.

   [11] AAT Folio 77-78.

   [12] AAT Folio 73-75.

9. On 7 July 2017, the applicant’s representative provided a submission regarding the ground for cancellation. It stated that the applicant maintains that at the time of application he had not provided incorrect material, the applicant’s decision to voluntarily return to Iran does not by necessity mean he lied about his fears or the reasons why he believed he would be at risk of harm in Iran, and that the applicant’s Iraqi citizenship was recovered by the applicant’s father on his behalf in February 2011 – six months after the alleged incorrect information was provided by the applicant that he was stateless.

10. On 12 July 2017, the applicant submitted a letter from his wife outlining some of their past experiences, including that she believed and was fully assured that her spouse was stateless; that he is definitely a Faili Kurd; they are separated but share their care responsibilities for their children; and that she may one day live with the applicant again.[13]

    [13] AAT Folio 102-103.

11. Also submitted is a certified copy of the applicant’s father’s and mother’s Iraqi citizenship documents with an accompanying certified translation. The documents indicate that the applicant’s father citizenship was acquired in 2009 from the authorities in Iraq, while his mother acquired it in 2005 and that they were both born in Baghdad, Iraq.[14]

    [14] AAT Folio 98-101.

12. There were also numerous school and educational documents indicating that the applicant’s elder child had progressed educationally and a reference letter that the applicant is active in her academic development.[15]

    [15] AAT Folio 50-72.

13. Certified copies of Iraqi identification documents with certified translations, belonging to the applicant’s father and mother, were submitted.[16]

    [16] AAT Folio 93-97.

14. On 12 July 2017, the applicant attended a resumed hearing, in which principally the factors in favour of having the visa remain cancelled or not were discussed.

15. The Tribunal identified that based on the information before it it appeared that the applicant had breached s.101(b) of the Migration Act. This included providing incorrect information in his protection visa application form with respect to his citizenship status as stateless. The applicant maintained that this information was correct at the time of application.

    FINDINGS OF CLAIMS

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

16. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the matter particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: incorrect answers as part of the Refugee Status Assessment on 4 August 2010 and in answers provided in the Form 866C and a statutory declaration as provided with the application. When asked as to his citizenship in Parts A and C of Form 866C, the applicant had answered ‘None’, and when if the applicant was stateless, when and why did the applicant lose citizenship, the applicant answered ‘Never had citizenship’. Furthermore when the applicant was asked if the applicant had difficulties obtaining a travel document in his home country, the applicant responded that he had. Furthermore the applicant’s Form 866C contains a statement which details that he was a not a citizen of Iran and had been denied services and rights in Iran due to his stateless identity in his country of reference.

17. The applicant in his evidence and submissions has not conceded that he had been non-compliant in the manner as particularised by the s.107 notice. The applicant insists that he is a stateless Faili Kurd whose country of usual residence is Iran at the time of application for refugee status in 2010. He also claims this on behalf of his Iranian born daughter and his wife who were subsequent applicants to this application under Australia’s protection obligations. He further insists that he acquired a passport issued by Iranian authorities in Australia by submitting fraudulently obtained Iranian identity documents. In holding and travelling on a genuine but fraudulently obtained Iranian passport, the applicant claimed he did not have Iranian citizenship at the time of application and that he provided correct information as he was genuinely a stateless Faili Kurd.

18. The Tribunal notes that the applicant claimed that he is also a citizen of Iraq by virtue of him being granted this status in February 2011 – prior to him and the other family members applying for Australian protection visas. Again, it is argued that the applicant did provide correct information in claiming that he was a stateless at the time of application. As discussed during the hearing, the grant of the applicant and his family members’ visas occurred in November 2011, indicating that the applicant was not stateless at the time of his visa application.  

19. Firstly, the Tribunal assesses that the applicant is a Faili Kurd born in Iran. He used an interpreter who used the distinctive Faili Kurdish dialect during the scheduled hearing. He demonstrated knowledge consistent with Faili Kurdish history, including the external displacement into Iran by Saddam Hussein. The applicant’s religion is Shia Islam meaning the applicant belonged to the Shia majority in Iran. He provided documentary evidence that his mother and his father were born in Iraq and have been granted Iraqi citizenship in the aftermath of the Second Gulf War and regime change in Iraq in 2003. He also provided evidence that he acquired Iraqi citizenship in 2011, further indicating he was a Faili Kurd.  As the Tribunal accepts these documents pertaining to Iraqi citizenship to be genuine and based on the oral evidence, the Tribunal is satisfied the applicant is a Faili Kurd.

20. Secondly, with regard to the applicant’s Iraqi citizenship, the Tribunal accepts the applicant’s claim that he was eligible for Iraqi citizenship and that his father obtained this citizenship on his behalf in February 2011 based on the documentary evidence provided.  The applicant claimed that he was not aware that his father had recovered the applicant’s Iraqi citizenship and was no longer stateless later in the year, possibly after the grant of the protection visa.  In this matter, the Tribunal has provided the applicant the benefit of the doubt that he was unaware of his Iraqi citizenship until after the grant of the visa and therefore did not provide incorrect information in this regard.

21. However, the applicant has not satisfactorily demonstrated or explained that he did not have Iranian citizenship when he applied for refugee status in 2010. As the delegate noted, the applicant’s passport presented on arrival on 17 October 2013 had the correct name and date of birth of the applicant, the correct name of his father and the actual date of the applicant’s last lawful departure from Iran, being 6 February 2010. It also has the identification numbers from his Iranian birth certificate (Shenasnameh) and Iranian national identification card (Kart-e-Melli).

22. The applicant argued that the details of his previous passport, fraudulently obtained, was recorded in the Iranian electronic system and it was those details, including his father’s name, that were recorded. The applicant noted that he had informed the Department at the time of his visa application that he fraudulently obtained an Iranian passport which used another name ([Applicant’s Alias 1][17]) when he departed Iran for Australia in 2010 but that was not the truth and that he was afraid to inform the Australian authorities that he used his actual name based on advice from other irregular maritime arrivals and that he would be denied protection as a stateless Faili Kurd. As discussed in the hearing, if the applicant was willing to lie about his name then it would be reasonable to expect the applicant lied about his status as a stateless Faili Kurd.

    [17] [Department File Number]Folio 57.

23. During the hearing the applicant claimed that he burnt copies of the fraudulently obtained Shenasnameh and Kart-e-Melli used in 2013 after his visa was cancelled and that the originals were back in Iran. The applicant was provided with an opportunity to submit the originals. With regard to the documents used for the passport for his departure in 2010, the applicant undertook to get either copies or the originals from Iran. However, at no stage did the applicant provide any original documents or copies of original documents to support his claims about fraudulently obtaining passports in the past.  This lack of responsiveness indicatesto the Tribunal that such documents do not exist and further indicates these claims about fraudulently or unlawfully obtained passports to evasive and lacking in credibility.

24. The Tribunal also noted, during the first scheduled hearing, country information about the provision of identity documents in Iran, by reference to the Department of Foreign Affairs and Trade (DFAT) Country Report on Iran. Key Iranian identification documents (birth booklets known as the Shenasnameh and national identity cards) are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use. It might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran. Furthermore Iran has issued diplomatic and service biometric passports since July 2007. Ordinary biometric passports have been issued since February 2011. As discussed during the hearing, this information indicated that it is very difficult to obtain fake documents. The applicant insisted that there are corrupt officials producing fake identity documents and he presented an Iranian driver’s licence he claimed to be fake.  However, in the context of the applicant’s lack of responsiveness in providing documents used to acquire fraudulently obtained documents, the Tribunal has placed considerable weight on the country information to further indicate that applicant’s claims about fraudulently or unlawfully obtained identity documents and passports to be lacking in credibility.

25. It was put to the applicant that there is country information from the 2014 DFAT Thematic Report regarding Faili Kurds in Iran to support the proposition that Faili Kurds remain stateless, although the numbers are not significant, and that Faili Kurds typically resided in provinces close to Iraq and in the largest cities. A credible academic report (Geraldine Chatelard, Migration From Iraq between the Gulf and Iraq wars (1990 – 2003), University of Oxford, 2009) estimates that prior to 2003, Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin, who could prove their Iraqi origins. In-country sources were unable to verify this information. It was put to the applicant that this information indicates that the applicant would be statistically and numerically unlikely to be a stateless Faili Kurd. The applicant responded somewhat irrelevantly that he had a brother in Australia and other siblings in other countries who have sought asylum based on the same identity status and insisted that Kurdish are not treated well anywhere in Iran. Although the Tribunal does not rely on this country information solely, it does indicate to the Tribunal that the applicant’s claims about being stateless at the time of application are lacking in credibility.

26. The applicant claimed that he travelled back to Iran because his parents were ill and that his father made arrangements to obtain fraudulent identification documents that supported the applicant unlawfully acquiring an otherwise genuine Iranian passport. While holding protection visas, the applicant and his family visited Iran for three months in 2013 and do not claim he experienced any harm or harassment due to being stateless. The applicant’s representative has argued that it did not mean the applicant was not necessarily stateless and that he had compelling and compassionate circumstances for returning to his country of usual residence, which can be permitted to holders of humanitarian visas. However, in the context of the Tribunal’s other credibility and other concerns, it finds that the applicant’s 2013 travel back to Iran further undermined the credibility of the applicant’s claims of a well-founded fear of persecution based on him being a stateless Faili Kurd and not being an Iranian citizen at the time of application.

27. While it is not impossible that Iranian passports are fraudulently and unlawfully acquired, taking into consideration all the credibility concerns about the presented passport and the country information, the Tribunal is not satisfied the applicant provided credible explanations that the passport was fraudulently obtained. It further finds that the applicant would have to have provided to the Iran’s diplomatic mission in Canberra with a document to demonstrate his legal entitlement to an Iranian passport, that country information indicates that only Iranian citizens are entitled to an Iranian passport and that this is undertaken through submitting a genuine Iranian birth certificate (Shenasnameh) and Iranian national identification card (Kart-e-Melli). Accordingly, it does not accept the applicant departed Iran in 2010 unlawfully as he travelled on a genuine passport issued to him based on genuine identity documents by Iranian authorities because he was legally entitled to it.

28. Another residual consideration raised before the Tribunal has been the argument that as the applicant’s wife had travelled back to Iran using a titre de voyage travel document and not an Iranian passport, this was indicative evidence that both the applicant and his wife were in fact stateless, as the Iranian officials would have prevented her from entering or exiting has she been an Iranian citizen with a travel document.  On the Tribunal’s file is an untranslated copy of the wife’s travel document with entry and exit stamps in Persian. The Tribunal accepts these to be genuine and that she did not use an Iranian passport, fraudulent obtained or otherwise, to enter and depart Iran in 2013.  However, in the applicant’s wife not using an Iranian passport does not necessarily mean the applicant or his wife had provided correct information at the time of application.[18] Neither does it diminish the weight of unfavourable evidence that the applicant himself provided incorrect information as outlined in the s.107 Notice nor that he was not stateless.

    [18] A 2016 EU document indicates holders of travel documents issued to refugees can enter Iran.   >

    Similarly, the Tribunal finds that even in circumstances where the applicant had compelling and compassionate reasons for returning to Iran, it does not mean the ground for cancelation is undermined, especially considering he did not experience any apparent harm or hindrance.

29. Having cumulatively considered all the evidence and arguments regarding the grounds for cancellation not being met, the Tribunal is satisfied that the applicant, while he is a Faili Kurd and did not have Iraqi citizenship at the time of applying for protection visas on his and his family’s behalf, the applicant held a genuine Iranian passport in 2010 because he was legally entitled to one as an Iranian citizen and not because it was fraudulently obtained. It follows from this finding that the applicant provided incorrect information with respect to his citizenship status and his identity as a stateless Faili Kurd. The Tribunal considers that the applicant has incorrectly indicated in his protection visa application his citizenship status as stateless, when the correct information is that he is a citizen of Iran. The applicant has stated this incorrect information at the time of application, as outlined in the s.107 Notice and the delegate’s decision.

1. 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.

   Should the visa be cancelled?

2. 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).

3. 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.

4. 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.

   Regulation 2.41(a) – the correct information

5. At the hearing, the applicant reiterated his claims for protection, as detailed in the delegate’s decision, that he is a stateless Faili Kurd who did not have documents or the right to reside in Iran and that it is ‘100 per cent true’. The applicant’s claims regarding his identity and citizenship were fundamental to his claim.  Again the claim the information at the time of decision by the delegate is correct is argued by the applicant’s representative in 20 June 2017 submission as the Iranian passport was unlawfully obtained.

6. With respect to r.2.41(a), the Tribunal considers that the correct information is that the applicant is a citizen of Iran, that he is not a stateless Faili Kurd whose country of usual residence had been the Islamic Republic of Iran and that he did not have a well-founded fear of persecution based on being a stateless Faili Kurd if he were to be returned to the Islamic Republic of Iran, at the time of application.

7. Noting that the applicant claimed his wife and Iranian born child were also stateless Faili Kurds, as discussed at the hearing, and having examined the applicant’s 866 forms submitted in 2010, the Tribunal also finds that the correct information, through the applicant, includes that the subsequent applicants (his wife and Iranian born child) at the time of application are Iranian citizens.

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

8. An Iranian passport issued to the applicant was located by an Australian official on arrival in 2013. The applicant claimed that this travel document is a genuine document but was fraudulently obtained.

9. The Tribunal finds that the passport issued by the Iranian authorities in Australia referred to in this application is a genuine document and that it was not fraudulently obtained.  It further finds that the information included in this passport is correct, which includes the applicant’s name and date of birth, the fact that his father’s name is [name deleted] and the fact that the applicant last lawfully departed Iran on 6 February 2010, as well as the personal identifying numbers which correspond with his Kart-e-Melli and Shenasnameh.

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

10. As discussed during the scheduled hearing, the Tribunal notes the information in the delegate’s decision that states that the claimed fear of harm from the Iranian authorities – due to his statelessness and having no identity documents and no right to reside in Iran because of his statelessness – was fundamental to the decision that he was a person to whom Australia has protection obligations.  

11. The decision of the delegate to grant the protection visa has relied on the incorrect information for the grounds to be granted a protection visa. The Tribunal considers that, if the correct information about the applicant’s citizenship status and reasons for coming to Australia had been provided, the applicant would not have been granted a protection visa.

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

12. As stated above, the Tribunal considers that the applicant has knowingly provided incorrect information from the day he provided false information with respect to his protection application by asserting his identity and citizenship status as a stateless Faili Kurd whose country of usual residence is Iran. The Tribunal places significant weight on these breaches in favour of the visa remaining cancelled, as they undermine the integrity of Australia’s migration and humanitarian laws and programmes.

    Regulation 2.14(e) – the present circumstances of the visa holder

13. The applicant has provided information that has been working in Australia as [an occupation] and [occupation]. There is also oral and written evidence that the applicant is separated from his wife, that they both care for his children and that the spousal couple is open to reconciling.  He also stated that his wife and his brother, who travelled to Australia with them, will have their protection visas cancelled because of his visa cancellation, although they are subject to separate review applications. He also has a mortgage for a house. As acknowledged in the scheduled hearings, the applicant is living through distressing times and the Tribunal will take this into account in its deliberation.

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

14. In the applicant’s response to the s.107 Notice as provided to him, he continued to provide incorrect information to the Department. Neither has conceded that has provided incorrect information with respect to his identity and citizenship status to the Tribunal. The Tribunal places some weight on this ongoing non-compliance in favour having the visa under review remain cancelled.

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

15. The Minister’s delegate was unaware of any non-compliance by the visa holder, other than that the applicant has maintained that he has not provided incorrect information to the Department since his arrival in Australia in 2010. There are no known instances of any further non-compliance by the applicant to the Tribunal.  

16. The Tribunal places limited weight on this on this aspect of this matter in favour of this visa not remaining cancelled.

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

17. It is almost eight years since the non-compliance occurred, when the applicant lodged the documents in August 2010 that led to his being granted a protection visa. The Tribunal places some weight of this factor in favour of having the visa not being cancelled.

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

18. As detailed, the applicant has admitted that he used a false Iranian driving license to form the basis for the issuing of a full [Australian State 1] drivers licence. He claimed that he did so to improve his employability and mobility in the labour market. The applicant implausibly claimed he was ignorant that this was a breach of the law. The Tribunal has considered if this is an example of providing incorrect information to gain a benefit in Australia and whether the matter is serious, given community standards towards road safety and the integrity of Australia’s identity verification system.

19. During the scheduled hearing, the applicant has claimed that he had a fraudulent driving licence from Iran which in turn, he provided to Iranian officials to obtain a passport and to obtain a drivers licence in [Australian State 1] to improve his employability and mobility in the labour market.  As the Tribunal finds that the applicant is an Iranian citizen, it follows the Iranian driver’s licence is unlikely to have been fraudulently obtained and that the [Australian State 1] licence was also lawfully acquired.

20. Accordingly, the Tribunal finds that there was no further known non-compliance by the visa holder and it places some weight on this factor in favour of the applicant.

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

21. The applicant stated that he has engaged in volunteering for the Kurdish community, although not through any formal organisation or charity, and that he attended Persianate festivals such as Nowruz celebrations. The applicant has also contributed to the community as a taxpayer and as a conscientious father. The Tribunal places some weight on this narrow contribution towards the general community in favour of the applicant’s visa not remaining cancelled.  

    Other relevant factors

100. The prescribed circumstances as listed under r.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 occur under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under r.2.41.

Consequential cancellation

101. As noted above, the delegate considered there would be a consequential cancellation to the applicant’s Iranian born daughter, [Child 1], under s.140(1) of the Act and the delegate placed significant weight on this factor in favour of the visa not being cancelled due to the potential hardship faced by the applicant’s family members. There are also the protection visa cancellations of the applicant’s brother and the applicant’s wife to consider.

102.   For the same reasons, the Tribunal places significant weight on the potential hardship arising from the consequential cancellation of the protection visa held by applicant’s daughter, wife and brother in favour of the visa not remaining cancelled.

Iraqi citizenship

103.   The Tribunal also notes that the applicant claimed to have acquired/be eligible for citizenship of Iraq since his application for protection in 2010. His representative, in a written submission, argued the Tribunal was obliged to consider whether the applicant would be suffer refoulement if he were to be resettled in Iraq, where sectarian violence, warfare and discrimination against Faili Kurds are prevalent, even in Kurdish dominated parts of that country.  During the hearing, these issues were explored with the applicant in some detail.

104.   As a residual consideration, the applicant’s representative has argued that in the circumstances where the Tribunal accepts the applicant is an Iranian citizen and the applicant’s Iranian citizenship is revoked, Australia’s non-refoulement obligations should be assessed against the applicant resettling in Iraq. The representative provided country information indicating that Iranian immigration officials do routinely confiscate foreign passports held by dual nationals who enter and exit Iran on their Iranian passports. This information indicates that passports are confiscated, not that Iranian citizenships are cancelled. It is further noted that the applicant’s father is a dual citizen and his citizenship of either Iraq or Iran has not been revoked.  In any event, it is open to the applicant in returning to Iran, voluntarily or otherwise, to revoke his Iraqi citizenship, if he is concerned about resettling in Iraq.

105.   While the Tribunal accepts that the applicant has Iraqi citizenship and that he acquired it after he had applied for a permanent onshore protection visa, as the Tribunal is satisfied that the ground for the cancellation has been made out and that the Tribunal is satisfied no refoulement and no breaches of other international obligations arise if the applicant were to return to the Islamic Republic of Iran in this case; the Tribunal is not obliged to exhaustively examine such issues in a third country.

106.   The Tribunal therefore places very little weight on this matter in favour of the visa not remaining cancelled.

Recent travel history

107.   The applicant claimed that he travelled back to Iran because his parents were ill and that his father made arrangements to obtain fraudulent identification documents that supported the applicant unlawfully acquiring an otherwise genuine Iranian passport. While holding protection visas, the applicant and his family remained there for three months in 2013 and do not claim he experienced any harm or harassment due to being stateless during the 2013 trip or that Faili Kurds who hold Iranian citizenship face a real chance of persecution or a real risk of significant harm. The Tribunal places significant weight on this behaviour in favour of the visa remaining cancelled.

Australia’s international obligations

108.   A detailed ITOA was completed and determined that the applicant did not have a real chance of serious harm or a real risk of significant harm if returned to Iran on 27 September 2016. The Tribunal referenced the Onshore Protection ITOA in the delegate’s decision, which determined that ‘Australia does not have non-refoulement obligations to the applicant’ which Australia might otherwise have under the Refugees Convention, the Convention against Torture and Other Cruel Inhuman Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).  Considerable country information was incorporated into this decision and it resulted in findings that the applicant did not have a real chance of serious harm or a real risk of significant harm as a Faili Kurd or as a forced returnee from a western country.[19]

[19] [Department File Number] Folio 165-175

109.   The ITOA also mentioned that the applicant is not a person in respect of whom Australia has non-refoulement obligations, and following from this finding, Australia does not have non-refoulement obligations towards the applicant’s Iranian born daughter.

110.   The applicant has made oral submissions to the Tribunal that he is not a citizen of Iran and that he is a stateless Faili Kurd whose country of usual residence is Iran. During the hearing, the applicant claimed that returning to Iran may end his life and it would be difficult on his children. He claimed that his son and his daughter are [age] and [age] years of age respectively at the time of the scheduled hearing and they cannot speak Persian (or Farsi). He was also concerned that he would have to pay full fees for his children to access school and that they may be refused access to tertiary level education.  Although his immediate and extended family continues to reside in Iran and he is likely to return to Tehran where his parents reside, as a Faili Kurd, life would be difficult due to discrimination and insults. He further claimed that if the authorities in Iran knew he has Iraqi citizenship they may assume he is an Arab. He added that Iraqis have been accused of killing Iranians, even though Faili Kurds were expelled because of Saddam Hussein. He feared there would be discrimination in the health system in Iran as he would be expected to pay the full amount while citizens do access publicly subsidised health care. The applicant also mentioned that accessing loans from a licensed financial institution in Iran would be difficult due to his statelessness, that Persians do not respect Kurds and cumulatively there were too many barriers for him and his family to return. However he expressed that he did not fear capital punishment, arbitrary deprivation of his life, torture at the hands of the Basij or the security forces as possibilities, if he returned. He expressed concern about the horrendous traffic conditions in Iran and its economic difficulties.

111.   The legal submission further stated that the applicant argues that as a Faili Kurd he will be subject to social discrimination in Iran to a level of harm to engage any non-refoulement obligations on Australian authorities. At the hearing he has stated that he does have refoulement fears returning to Iran based on these specific fears.  

112.   The Tribunal notes that DFAT has advised that it is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity.[20] Also, Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranian citizens.[21]  It is further noted that the applicant returned with his wife and his children to Iran for a three month period in 2013. He claimed he visited to see his mother and father who were ill.  He provided evidence that his children enjoyed the company of his extended family members but he feared the levels of crime to be harmful. As discussed during one of the hearings, the applicant claimed to be religiously a non-practising Shia Muslim, indicating that he would not face a real chance of persecution or a real risk of significant harm based on his religion.  

[20] DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 at 3.6. 

[21]  DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 at 3.53

113.   According to the DFAT Thematic Report on Faili Kurds from 2014, Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. In general, a child born to an Iranian father acquires citizenship at birth, regardless of where the child is born. In practice, the children of Faili Kurd mothers and Iranian fathers can acquire Iranian citizenship.

114.   They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion. Based on the findings that the applicant is a Faili Kurd but not stateless and the country information, the Tribunal accepts that he will face a real chance of harm, arising from some societal and official discrimination, and face insults and assumptions that he is an Arab or an Iraqi who fought against Iranians. However, the harm will not amount to significant physical harassment, severe economic hardship, the denial of rights or any other harm amounting to serious harm based on his ethnicity as a Faili Kurd. Neither does the Tribunal finds there are substantial reasons to believe he will face a real risk of significant harm based on the same concerns.

115.   The Tribunal notes that the applicant made claims that he and his wife were harmed in the past by Basij members and that there is a general claim of fear arising from the Basij or other parastatal groups based on the applicant’s ethnicity. Whilst the Tribunal accepts this incident occurred, it was over 11 years ago and it did not constitute serious or significant harm.  DFAT’s Thematic Report from 2014 on Faili Kurds states that it cannot make a definitive assessment in regard to treatment of Faili Kurds by the security services. It is possible that individual members of the Basij discriminate against ethnic and religious minorities, including Faili Kurds. The Basij, particularly in rural areas, often receive low levels of training and might not have clearly defined roles or objectives, leading to an element of unpredictably in behaviour. The Basij and Iranian Revolutionary Guard Corps have some members who are of ethnic minorities, including ethnic Kurds. Checks of identity cards and other inspections are described by the same report as infrequent and not a normal part of everyday life. Noting this country information, the Tribunal finds the applicant to be an Iranian citizen and that he did not advance a claim that he would be targeted based on any religious or political activities, the Tribunal assesses the applicant will face only a remote chance of serious harm for any Refugees Convention reasons, including his religion, ethnicity or political opinion, imputed or otherwise, or a remote chance of significant harm, if the applicant is inspected by the Basij or other members of the Iranian authorities.

116.    With regard to the applicant returning as a failed asylum seeker from a western country, the Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm, given he was able to return to Iran without being harmed in 2013, indicating that he is not a person of interest to the authorities. Even considering the dangerous traffic conditions as raised in the resumed hearing, the claimed levels of crime in Iran and the relative lack of economic sophistication, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on any nexus reason mentioned in the Refugees Convention or a real risk of any significant harm relevant to the Act’s complementary protection provisions, as these are risks faced by the general Iranian population and by the applicant and his family personally.  

117.   As the protection visa held by the applicant’s daughter may be necessarily cancelled if this visa under review remains cancelled, and noting that his wife’s visa is being separately reviewed, the Tribunal has considered whether Australia has non-refoulement obligations towards his daughter if this visa remains cancelled. As the Tribunal assesses that her father is not stateless and that he is entitled to Iranian citizenship, she is automatically eligible for Iranian citizenship by virtue of her paternity. Under those circumstances, she will be able to return to Iran with her family and access the same level of rights and services as other Iranian citizens. The Tribunal accepts that the applicant’s daughter is a Faili Kurd, so discrimination exists against her ethnicity, and that she will face a real chance or a real risk of difficulties and challenges in integrating into Iranian society at her age. However the Tribunal does not accept that these difficulties and challenges amount to either a real chance of serious harm or a real risk of significant harm.  As a minor, the Tribunal does not accept the applicant’s daughter faces any further real chance of serious harm as a forced returnee, either on arrival or in the community, or for any other Convention or non-Convention reasons, if she were to return to Iran with her family or any real risk of significant harm relevant to the Act’s complementary protection provisions.

118.   The Tribunal does not consider that the effects of the cancellation, cumulatively considered, would be to return the applicant or his daughter or both of them to Iran in breach of Australia’s non-refoulement obligations, as arise out of CAT and the ICCPR, or in breach of any obligations arising under the Refugees Convention or complementary protection provisions as found in the Migration Act 1958. The Tribunal, accordingly, places little weight in favour of the applicant’s visa not remaining cancelled.

Convention on the Rights of the Child (CROC).

119.   The Tribunal has considered the CROC. This includes taking into account the best interests of the child, which is a primary consideration. The Tribunal also notes that the CROC also considers that the unity of the family is also an important consideration. The applicant has insisted that this was the most significant factor for the Tribunal to take into consideration.

120.   There are two children in the family: [Child 1] born in [year] and [Child 2] born in [year].  Tina, who has advanced educationally in a [Australian State 1] public school, was born in Iran. She was granted permanent residency when the applicant was granted a protection visa. The other child was born in Australia while his parents, then married and not separated, were permanent residents, so he is an Australian citizen, which the Tribunal takes into account. Based on the country information discussed above, the Tribunal also notes that both children are entitled to Iranian citizenship, arising out of the applicant’s Iranian citizenship.

121.   The applicant’s agent provided submissions regarding the obligation on the Tribunal in this area. The Tribunal notes that, in considering the best interests of a child or children, care should be taken to consider what decision in respect of the cancellation would be in their best interests, rather than how the children’s interests would be affected by a decision to cancel the relevant visa.[22] It was submitted that the best interests of the children should be a primary consideration in the making of administrative decisions, reflecting the guidance of Minister of State for Immigration and Ethnic Affairs v Teoh.[23] The Tribunal considers this a relevant submission, but notes that it is ‘a’ primary consideration, not ‘the’ primary consideration in this matter.

[22] See Vaitaiki v MIEA (1998) 150 ALR 608 at 618 and Wan v MIMA [2011] FCA 568 (Branson, Stone and North JJ, 18 May 2001) at [27]. These judgments concern a deportation decision and a s.501 cancellation decision respectively. However, their findings on this point appear equally applicable to s.109 cancellation where a decision-maker purports to treat the best interests of a child as a primary consideration.

[23] [1995] HCA 20; (1995) 128 ALR 353

122.   The Tribunal notes the following 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

(1)   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.

123.   The submission states that his children’s safety, freedom, education and healthcare prospects are better in Australia than Iran. They do not have property in Iran and will face financial hardship which will affect the children’s prospects in life.

124.   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. As they have identity documentation that demonstrates that they are citizens, they have access to healthcare and health insurance, education and state benefits. As citizens they are entitled to travel across Iran without restriction[24] and have access to employment and higher education on the same basis as other Iranian citizens. Identity documents would be required to buy a house, car and mobile phone, apply for a loan 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.

[24] DFAT Thematic Report Faili Kurds in Iraq and Iran, 3 December 2014 at 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.

125.   The Tribunal has considered the best interests of the applicant’s children. The Tribunal accepts that these two relatively young minors would be affected by the cancellation of the visa. The daughter has mostly experienced life in Australia and has largely been educated here, while the son has only experienced life in Australia as an Australian citizen. They have not meaningfully experienced life in Iran, where the services that are available are not comparable to the services that are provided in Australia. It is accepted that as children of Kurdish speaking parents they do not know Persian. The Tribunal notes that the applicant and his children will have access to the services that are available to all Iranian citizens, including education, health and employment, and that learning another language such as Persian is not a unique or insurmountable barrier for young pupils returning to their parents’ country of citizenship. While not as developed as the services that are in Australia, based on the available country information, the Tribunal considers that these services are of a standard that would provide for the family as needed, and the applicant and his children will not be deprived of such services.

126.   The Tribunal has also considered that the applicant has claimed he and his wife are separated but not divorced; that the separation arose after Australian officials discovered the applicant’s Iranian passport in 2014; and that the separation has been cooperative as the wife shares the caring duties of their children. He also said he was trying to reconcile with his wife and that he sees his children, to whom he is close, every day and every weekend.  With no evidence to the contrary, the Tribunal accepts this to be the case and that at the time of this decision the applicant remains separated from his wife.  

127.   The applicant’s representative also argued that there is a risk, albeit an unlikely one, of the Australian citizen child having his Australian citizenship revoked under s.34 and s.34A of the Australian Citizenship Act 2007 as consequence of this visa being cancelled. Even in these highly improbable circumstances, the Tribunal is satisfied that the Australian citizen child in question is entitled to Iranian citizenship. The Tribunal places little weight on this factor.

128.   The Tribunal considers that the best interests of the child are for the applicants to remain as a family. The Tribunal considers that this can be achieved by the family returning to Iran, where the applicant and his children will be able to enjoy the services that are available in Iran as provided for its citizens. It is also satisfied that the degree to which the applicant’s children have integrated into the Australian community does not outweigh their ability to integrate in Iran if they were to return with the applicant.  

129.   Given the information with respect to the opportunities that will be available to them as citizens of Iran for the applicant, his children and the family in general, even when considering the primary interest of his children, including an Australian citizen child, on balance, the Tribunal places a notable amount of weight on those opportunities in favour of the visa remaining cancelled.

Effect of the cancellation

130.   The Tribunal understands that the effect of affirming the cancellation would cause the applicant to be barred from applying for further visas, and may lead to the applicant being detained as an unlawful non-citizen. The Tribunal notes that given the applicant has one Australian citizen child and one child whose permanent residency visa will be cancelled as a consequence of this cancellation. Therefore the applicant is unlikely to be detained while making preparations for departure from Australia. The Tribunal considers that the applicant will be able to obtain a valid Iranian passport for himself and his children, and therefore has the ability to depart Australia voluntarily.

131.   Further, based on the Tribunal’s earlier findings that the applicant is an Iranian citizen, the Tribunal considers he will be able to return to Iran and does not accept that indefinite detention is a likely consequence of cancellation.

Other Matters

132.   The Tribunal notes that the applicant has stated that he has been working since arriving in Australia as a [occupation] and that he and his wife have no property in Iran, but he has 400,000 Australian dollars owing to a financial institution for a mortgaged house in [State 1]. It is anticipated that it would be challenging to settle the applicant’s affairs in this regard in circumstances whereby his visa is cancelled and he voluntarily departs. With regard to the applicant’s mortgage, earning income through a rental arrangement or selling this asset may be open to him. The Tribunal gives this factor some weight in having the visa not remaining cancelled.  The applicant stated at the hearing that he was working as [an occupation]. These skills are transferrable to Iran and he would be able to work in Iran with the support of his extended family.  

133.   As noted, there are some challenges and economic hardship, arising from his children’s integration into Iranian society, involved in the applicant and his family returning to Iran. However the Tribunal does not accept these difficulties will amount to being severe or significant, either financially or otherwise.  In this regard, the Tribunal places some weight in favour of the applicant’s visa not remaining cancelled.

134.   Based on the available evidence, the Tribunal does not accept that the applicant and his children will face severe or significant financial hardship on return to Iran. 

135.   As detailed, the Tribunal has serious concerns about the evidence of the applicant’s incorrect information to the Department and his ongoing insistence that a passport indicating his Iranian citizenship had been fraudulently and unlawfully obtained by using false identity documents to both the Department and the Tribunal, in both written and oral evidence.

136.   The Tribunal considers that the applicant has not been honest with the Tribunal regarding the identity documents that have been issued to him in Iran. 

Conclusion

137. The Tribunal considers that the applicant provided incorrect information since his ‘entry interview’ as an irregular maritime arrival into Australia and since his onshore protection visa application on his own behalf and that of his wife and Iranian born child. He provided incorrect information about his citizenship status and identity as a stateless Faili Kurd and has continued to provide this incorrect information up to the Tribunal hearing stage. At the time of his visa application, his claims for protection were not correct, given his citizenship. The applicant is an Iranian citizen, which gives him and his children entitlements as ordinary citizens in Iran. Country information discussed with the applicant, at the hearing and in the processes at the Department level, supports a determination that that he will not be harmed on return to Iran. The Tribunal finds that the applicant has provided incorrect information in breach of s.101(b) of the Act, and thus is in breach of this provision of the Act.

138.   The provision of incorrect information that led to a grant of a visa is a grave issue. The information is relevant to the application of Australia’s law with respect to permission to enter and reside in the Australian community. Departure from those laws must be taken seriously as they undermine the integrity of Australia’s migration and humanitarian laws and programmes. As to whether a visa holder should be entitled to continue to hold that visa, deliberate breaches of the law should be given significant scrutiny in determining whether the visa should remain cancelled.

139.   The basis of the applicant’s opportunity to reside in Australia was based on the incorrect answers that the applicant provided with his application. He understandably wanted a better life for himself, his wife and child. However he fabricated critical information in his application which led to the provision of a permanent visa to remain in Australia. He has not conceded that he provided this incorrect information since an Iranian passport issued to the applicant was discovered on his arrival after spending some time in Iran in 2013 with his family over a three month period. The Tribunal has made strong findings that it is satisfied that the passport was not a fraudulently or unlawfully obtained passport and that the applicant, while a Faili Kurd, was an Iranian citizen and not stateless at the time he provided incorrect information in 2010.

140.   The applicant now relies on the fact that in the interim he and his wife (from whom he is now separated) has had another child, who was born in Australia and is an Australian citizen, as the most significant reason why he should his visa should not remain cancelled. The Tribunal accepts that returning to Iran will be challenging to him and his children. In this, the applicant is correct, and the Tribunal has had due consideration of this in its deliberations. However he has also kept on providing incorrect information throughout this cancellation process, as detailed above, and the country information strongly indicates that the applicant and his relatively young children can resettle in Iran with the same rights as other Iranians to basic services.  

141. In conclusion, after considering all the circumstances of this case, including the circumstances the applicant will face returning to Iran, including the issue of his Australian citizen child and his Iranian born child being a primary consideration, and after considering the prescribed factors pursuant to r.2.41 of the Regulations, and all other factors considered, the Tribunal finds that the seriousness of the applicant’s actions to deliberately provide incorrect information in the application, without which he would not have been granted a permanent visa, outweighs the factors in favour of not cancelling the visa.

142.   The Tribunal is conscious that the cancellation of a visa, in particular the nature of the visa under consideration in this matter, is a very serious matter and that it was a difficult decision to reach. 

143. 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 regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should remain cancelled.

DECISION

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

Brendan Darcy
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.