1708371 (Refugee)

[2018] AATA 4974

1708371 (Refugee) [2018] AATA 4974 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708371 and 1708376

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Alison Murphy

DATE:6 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decisions under review and substitutes decisions not to cancel the applicants’ Subclass 866 (Protection) visas.

Statement made on 06 December 2018 at 9:27am

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – incorrect information – ethnicity – Faili Kurd – decision under review set aside


LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 2


CASES
Minister for Immigration and Citizenship v Brar [2012] FCAFC 57
NBKE v MIAC [2007] FCA 126
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

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. The applications the subject of this decision relate to two decisions made by a delegate of the Minister for Immigration to cancel the applicants’ Subclass 866 (Protection) visas under s.109(1) of the Migration Act 1958 (the Act).  Each applicant in this matter was the subject of a separate decision by the delegate and each applicant made a separate application for review to this Tribunal.  However as the issues in dispute in each case turn on the same facts, it is convenient to deal with both matters in one set of reasons.

2. The applicants are a husband and wife who arrived in Australia by boat [in] May 2010.  They identified themselves upon arrival as stateless Faili Kurds who were formerly resident in Iran and they were granted protection visas on that basis on 16 February 2011.

3. On 10 April 2017, a delegate of the Minister cancelled the applicants’ protection visas on the basis that he considered the applicants had breached section 101 of the Act by providing incorrect information in their visa application. In particular the delegate considered that each of the applicants had incorrectly stated they were stateless when information that had subsequently become known to the department suggested they were Iranian citizens.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visas should be cancelled.

5. The applicants appeared before the Tribunal on 21 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.  The review applicants were not represented in the review applications.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be set aside and substituted with a decision not to cancel the applicants’ Subclass 866 (Protection) visas.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. In considering whether the s.107 notices in this case are sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs[1]: 

   Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.

   …

   The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.[2]  

   [1] [2000] FCA 1235

   [2]    Zhao v Minister for Multicultural Affairs [2000] FCA 1235 [25]‑[26].

10. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case “are of assistance in terms of the proper interpretation and application of s 107”.[3]  

    [3]    Minister for Immigration and Citizenship v Brar [2012] FCAFC [57].

11. Further the Federal Magistrates Court in SZEEM v Minister for Immigration stated:

    … the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[4]

    [4]    SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 [38].

12. I note that the s.107 notices in each case set out in detail the information given by the applicants in their protection visa applications that is now said to be incorrect, as well as particulars of the basis that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicants to understand and respond to the non-compliance allegation.

13. In the present matters, I am satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notices issued under s.107 complied with the statutory requirements.

    Issue to be determined

14. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

15. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the applicants answered questions in their applications for protection and attached statutory declarations to the effect that they were stateless Faili Kurds who did not hold citizenship of any country.

16. For the reasons set out in the following paragraphs, the Tribunal is not satisfied that either or both of the applicants gave incorrect information to the department about their status as stateless Faili Kurds. It follows that the ground for cancellation is not established and the decision to cancel the applicant’s visas should be set aside and substituted with a decision not to cancel the applicants’ Subclass 866 (Protection) visas.

    The non-compliance described in the s.107 notices

17. Notices under s.107 were sent separately to each of the applicants on 23 September 2015.  In each case, the s.107 notice set out that the applicants had identified themselves as stateless Faili Kurds in their visa applications. 

18. In the s.107 notice sent to the applicant husband, the delegate noted he stated in his visa application that his parents were stateless Faili Kurds who were expelled from Iraq when he was [an infant] and he had been stateless since birth. He stated he had travelled on a false passport issued in the name of [name] arranged by his father. He claimed that he had been living and working illegally in Iran and experienced life without any civil identity or basic rights.  He claimed he was constantly threatened by the basiji about being a foreigner in the country and six or seven months before he fled around he was involved in an altercation with the basiji. He claimed he didn’t have access to the public health system and couldn’t improve his education. He claimed if he were to return to Iran he would be detained and probably executed, that basiji and intelligence officials may harm him, he would face restrictions in practising his religion, he would be harmed because he left Iran illegally and he would face persecution by the Iranian government and its security and intelligence forces.

19. In the s.107 notice sent to the applicant wife, the delegate noted she stated in her visa application that her parents were stateless Faili Kurds who were born in Iraq and expelled by Saddam Hussein in 1979 or 1980 and she was born stateless in Iran. She stated that she had travelled on a false passport issued in the name of [name] arranged by her father-in-law.  She claimed that she had been living and working illegally in Iran and experienced life without identity or basic rights.  She claimed she was unable to register her marriage and would not be able to register the birth of her children. She claimed she and her husband fled Iran because they were stateless and had no identity and were subjected to constant harassment and denial of rights. She claimed if she were to return to Iran she would be detained and probably executed, that security and intelligence officials may harm her, she would face restrictions in practising her religion, she would be harmed because she left Iran illegally and she would face persecution by the Iranian government and its security and intelligence forces.

20. Each of the s.107 notices sent to the applicant husband and the applicant wife recorded that on 16 February 2011, the applicants were granted protection visas on the basis of the claims they had made.

21. The s.107 notices went on to set out the details of information that caused the delegate to consider they were Iranian citizens and not stateless. In summary, that information was explained as follows:

    ·In his application for a protection visa, the applicant husband listed [Mr A] as one of his siblings. [Mr A] also listed the applicant husband as one of his siblings in his own protection visa application;

    ·[In] October 2013, [Mr A] returned to Australia with his family after spending three months in Iran visiting his parents. He was interviewed at [an] airport on his return to Australia, where he produced a recently issued Iranian passport confirming that he was an Iranian citizen. That Iranian passport provided the name of his father, [Mr B], who was also listed as the father of the applicant husband in his application for a protection visa;

    ·In order for the applicant husband’s brother to be issued with a legitimate, genuine Iranian passport which attests to his citizenship, he would have had to satisfy the Iranian authorities of his Iranian citizenship and entitlement to such document;

    ·Iranian nationality laws Article 976 provide that Iranian citizenship is acquired by descent through a person’s father. Given that [Mr A] and the applicant husband have the same father and [Mr A] is an Iranian citizen, it follows that the applicant is also an Iranian citizen and not stateless as claimed;

    ·therefore the information the applicants provided in their entry interviews, their requests for refugee status assessments and attached statutory declarations, applications for a protection visa and attached statutory declarations was considered to be incorrect.

22. The s.107 notice sent to the applicant wife included further information indicating that as her husband was an Iranian citizen, she also became an Iranian citizen upon her marriage in 2004 even if she was stateless before that time.

    The responses of the applicants to the s.107 notices

23. The applicant husband responded to the s.107 notice on 14 October 2015, in which he maintained he and his family were stateless Faili Kurds and denied knowledge of any document used by his brother to travel to Iran.  He states he has asked his brother about it who told him he had spent much money to obtain the passport.  He states if he himself were able to travel, he would have done so but he hasn’t even applied for a travel document.  He states he was born in Iraq, but when he was issued with a visa it stated he was from Iran and so in order not to face problems he wrote Iran on his children’s birth certification.  He states he is not mentally or physically in good health.

24. The applicant wife responded to the s.107 notice on 13 October 2015, 12 November 2015 and 16 May 2016. The delegate’s decision records that in her submission dated 13 October 2015, the applicant wife stated she had two Australian born children and it was unfair that her right to stay in Australia would be taken away based on the actions of her brother-in-law.  In an email dated 12 November 2015, the applicant wife states that as she had mentioned before, she has no Iranian identity documents. In an email dated 16 May 2016, the applicant wife stated that she didn’t know how or with which kind of document her brother-in-law travelled to Iran and that she herself could not apply for any passport or report it as lost or stolen. She stated the passport which she used to depart Iran was a genuine passport in which only the photo had been changed and she had no relationship with the legitimate owner of that passport. She stated her father-in-law undertook the process of obtaining that passport.  She stated she did not need a white card because she and her husband worked as cash in hand labourers like thousands of people working illegally. She stated there was no evidence she was an Iranian citizen.

25. In a letter from their former representative dated 20 May 2016, the representative referred to the information already provided by the applicant wife and applicant husband and noted that the power to cancel the visa office was discretionary and urged the delegate considering cancellation to give genuine and proper regard to all the mandatory criteria outlined in regulation 2.41 and the relevant policy advice manual.

    Evidence of the applicants at the Tribunal hearing

26. At hearing before the Tribunal, both applicants maintained they were stateless Faili Kurds formerly resident in Iran.  They each gave evidence as to their personal backgrounds that was consistent with their previous statements to the department and the Independent Merits Reviewer.  They each denied giving incorrect information to the department about their country of nationality or any other matter. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The applicants’ ethnicity

27. It is not in dispute that the applicants are both of Faili Kurd ethnicity, nor that they were formerly resident in Iran before travelling by boat to Australia in May 2010.  Both the delegate and the independent reviewer who assessed their protection claims in 2010 and 2011 were satisfied they were among the many thousands of Faili Kurds who were expelled from Iraq by the Ba’athist government in Iraq and fled to Iran.  In its most recent country information report for Iran, DFAT states:

    3.13 The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinctive dialect

    . . .

    3.14 Upon seizing power in the 1960s, the Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree No. 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is very much at the high end). Iran recognised many (but not all) Faili Kurds as refugees. The number of those remaining in Iran is unclear. Many returned to Iraq after the fall of Saddam Hussein in 2003: UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran.

28. I note that all stages in the assessment and cancellation process the applicants have participated in interviews and hearings with the assistance of a Faili Kurd interpreter and I accept them to be of Faili Kurd ethnicity.

29. DFAT reports that there are three main groups of Faili Kurds live in Iran:

    ·Iranian citizens;

    ·those of Iraqi origin who are registered refugees;

    ·those of Iraqi origin who are not registered refugees.

30. DFAT states that accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available[5]. The UK Home Office confirms that certain ethnic minority groups in Iran, including Faili Kurds, are either stateless or at risk of statelessness[6].

    [5] DFAT Country Information Report: Iran 7 June 2018 at 3.13 – 3.14

    [6] UK Home Office September 2018 Country Policy and Information Note Iran: Background Information Including Actors of Protection and Internal Relocation at 21.2

31. At issue in this case is whether the applicants lived in Iran as refugees as claimed or whether either or both acquired Iranian nationality. The applicants claim to have lived as refugees in Iran, while the delegate formed the view that they were among the group of Faili Kurds of Iraqi origin that have been granted Iranian citizenship.

32. Whether either or both of the applicants is an Iranian national is a question of fact. There are essentially two matters arising on the material before the Tribunal that casts doubt on the applicants’ claims to be stateless Faili Kurds living in Iran:

    ·The fact that the applicant husband’s brother [Mr A] holds an apparently genuine Iranian passport issued to him in [2013] which he used to enter and exit Iran in 2013;

    ·Statements made by the applicant husband’s sister [Ms C] in an application for a global humanitarian visa in July 2014[7].

    [7] In considering this information, I note that while the Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice, it is not precluded from considering evidence relevant to non-compliance that was not referred to in the s.107 notice (as per cf Sheptitskaya v MIBP [2015] FCCA 159.

33. The most significant of these matters is that the applicant husband’s brother [Mr A] holds an apparently genuine Iranian passport issued to him in [2013] which he used to enter and exit Iran in 2013. The UNHCR Handbook states that ‘possession of ... a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise’.[8] However there may be circumstances where a person may hold a passport of a particular country, yet not be a national of that country, including where the passport was obtained fraudulently.[9]

    [8]UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, (UNHCR, reissued 2011) (‘Handbook’), at [93].

    [9] NBKE v MIAC [2007] FCA 126.

1. The applicants claim that [Mr A] obtained that passport fraudulently by paying a significant amount of money and that as a stateless Faili Kurd he was not entitled to that passport. Each of the applicants has consistently claimed that they departed Iran in the same manner in 2010, that is that they paid money to obtain genuinely issued Iranian passports to which they were not entitled because they were not citizens of Iran. I note that [Mr A], appearing before this Tribunal (differently constituted) continued to maintain that the Iranian passport was genuine but it had been fraudulently issued to him in exchange for payment. That Tribunal in that case acknowledged that it was not impossible that [Mr A’s] passport was fraudulently obtained, although it did not accept that to be the case in his particular circumstances. Rather the Tribunal found in that case that [Mr A] held a genuine Iranian passport which he was entitled to as an Iranian citizen.

2. The applicants both gave evidence that they were not aware that [Mr A] had obtained or travelled on an Iranian passport until they received the s.107 notice setting out that information and they were shocked when they heard. The applicant husband gave evidence he realised immediately his brother had made a huge mistake, but he believed he had done so to avoid the complications of obtaining a visa to enter Iran using his temporary Australian travel document. He said he had tried to talk to his brother about his reasons for obtaining the false passport, but that relations between the families were now strained.

3. The fact that [Mr A] holds an apparently genuine Iranian passport issued in his own name prima facie suggests he is an Iranian citizen. I consider this raises questions as to whether the applicant husband is also an Iranian citizen and if so, whether the applicant wife became an Iranian citizen by virtue of her marriage to the applicant husband in 2004.  However a mere suspicion is not sufficient to establish the ground for cancellation.

4. In Zhao v MIMA, the Full Federal Court stated:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[10]

   [10] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

5. For the following reasons I am unable to reach a real state of satisfaction that either of the applicants are Iranian citizens as alleged by the delegate:

   ·Even if [Mr A] is the holder of a genuinely issued Iranian passport to which he is legally entitled for reasons of his Iranian citizenship, it does not necessarily follow that his father [Mr B] or the applicant husband are also Iranian citizens;

   ·While Article 976(2) of Iran’s Civil Code provides that a person born in or outside Iran to an Iranian citizen father is considered to be an Iranian citizen[11], the evidence before me does not establish that the applicant’s father [Mr B] is an Iranian citizen.  Nor does the available country information suggest that conferral of Iranian citizenship upon the applicant husband’s brother would automatically result in the conferral of citizenship on the applicant husband;

   ·While it is possible that [Mr A] inherited his Iranian citizenship through his father [Mr B] pursuant to Article 976(2), it is also possible that [Mr A] went through the process of obtaining Iranian citizenship himself. As the country information cited below makes clear, there is no automatic conferral of citizenship on Iraqi refugees resident in Iran even where they have the required Iranian ancestry or family links to Iran. Rather it appears the process of obtaining Iranian citizenship is long, complicated and expensive. There is no evidence before the Tribunal that the applicant’s father [Mr B] has ever engaged in such a process or been granted Iranian citizenship. In the absence of any such evidence, I cannot reach a state of positive satisfaction that applicant husband’s father [Mr B] is an Iranian citizen or that the applicant husband has inherited Iranian citizenship through his father;

   ·There are also material differences between the situation of the applicants and that of [Mr A]. While [Mr A] travelled back to Iran for three months using an apparently genuine Iranian passport, the applicants have not departed Australia since arriving in May 2010 and there is no evidence they have ever been issued Iranian passports in their own names;

   ·In considering the likelihood of the applicants’ having obtained Iranian citizenship at some time since their families arrived in Iran, I have had regard to the advice contained in the current DFAT report to the effect that many Faili Kurds of Iraqi origin have applied for Iranian citizenship, however the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and high costs involved[12]. The current advice is consistent with older reports which indicate that while Faili Kurds who could present documentary proof of Iranian ancestry or family links to Iran were able to obtain citizenship, this process was reported to be complicated and to take years, with the documents required to process an application for Iranian citizenship effectively meaning that few, if any, applicants are successful;[13] 

   ·I am also mindful that the applicants have consistently claimed to have departed Iran in 2010 on genuine passports which were obtained fraudulently by the applicant husband’s father.  At hearing before me they each gave evidence consistent with their evidence in 2010 to the effect that the applicant husband’s father arranged their passports using the identities of real Iranian nationals of roughly the same age and sex but had the applicants’ own photographs inserted. They departed Iran under the identities of the persons who were entitled to the passports. That evidence was accepted by both the departmental delegate and the Independent Merits Reviewer who determined the applicants’ claims in January 2011;

   ·In considering the plausibility of the applicants’ claims to have departed Tehran on genuine passports to which they were not entitled, I have had regard to DFAT’s advice that while it may be possible to obtain a genuine identification document with the intention of impersonating another person, sophisticated border control procedures would make it difficult to use such a document to leave Iran. At hearing the applicants’ vehemently disagreed with that information, giving evidence that the concern of the regime was to identify political dissidents and others it considered to be a threat to the regime or national security. They gave evidence that many people departed Iran without difficulty on genuinely passports which were fraudulently obtained. Consistently with their evidence in 2010, each of the applicants stated they had no problem departing Iran through the airport in Tehran;

   ·DFAT states in the same report goes that in February 2016, a passport forger was arrested in Thailand and admitted to selling forged passports to people from Iran, Iraq and Syria, the majority of which were allegedly used to travel to Europe. An Iranian legal expert cited by the UK Home Office advises that the frequency of forgery and producing fraudulent documents is high in Iran, although he does not specifically discuss passports[14].  On the basis of this information, I conclude that it is possible to depart Iran on fraudulently issued documents;

   ·I have also considered the information contained in the departmental file which indicates that the applicant’s sister [Ms C] gave slightly different information about the movement of the family from Iraq to Iran than that given by the applicant husband in her own visa application lodged offshore in July 2014.  While they both listed the same [siblings] born between [year range], [Ms C] apparently stated that their eldest sister [was] born in Iraq and the other siblings in Iran, while the applicant husband stated that the [older] siblings, including himself, were born in Iraq and the younger [siblings] were born in Tehran. I note that none of the documents lodged in [Ms C’s] visa application are contained on the departmental file, rather the delegate relies on email correspondence with an officer in the Australian Embassy in [another country] which extracts those details from the application form. As noted in that email correspondence, some of that information is contradictory on its face, for example two different birthdates are given for [Mr A]. Nothing in the information extracted from that visa application indicates that [Ms C] suggested the family were Iranian citizens and not stateless and indeed movement records indicate she was granted an offshore refugee visa (subclass 200) in July 2015 and records her country of nationality as Iraq;

   ·At hearing the applicant husband gave evidence that he believed he was born in Iraq after his mother returned to visit her own parents while she was pregnant with him, although of course he has no direct memory of these events. I accept the applicant’s evidence in that regard, noting his sister was only [age] at that time and is also unlikely to have any direct recollection of these events. However I note that even if the applicant is wrong about that, none of the information before me suggests that arriving in Iran in 1974 rather than 1979 would have made any difference to the family’s ability to obtain Iranian citizenship;

   ·Consistently with the applicant’s husband statement in his response to the s.107 notice, the hard copy Australian visa document issued to the applicant husband by the Department contains a stamp which incorrectly records that he was born in Iran and is of Iranian nationality[15]. This is despite that same visa being granted on the basis of his claims is a stateless Faili Kurd born in Iraq, both matters accepted by both the delegate and the Independent Merits reviewer during the assessment of his protection claims. I accept his evidence that after receiving that visa document, he completed his citizenship application and his children’s birth certificate applications in a manner consistent with his Australian visa document, believing this was the manner in which the department had categorised his details.

   [11] Civil Code of the Islamic Republic of Iran [Islamic Republic of Iran],  23 May 1928, available at: DFAT Country Information Report: Iran 7 June 2018 at 3.13 – 3.14

   [13] DIAC Focus Brief Iran: The Situation of Faili Kurd Refugees in Iran 16 December 2009 at p3; DIAC Country Information Service 2010, Country Information Report No. 10/13 – Iran: Faili Kurds, (sourced from DFAT advice of 1 March 2011), 18 March

   [14] UK Home Office September 2018 Country Policy and Information Note Iran: Background Information Including Actors of Protection and Internal Relocation at 22.5.3

   [15] See Tribunal file 1708371 folio 43

6. For these reasons I am not satisfied that the applicant husband is an Iranian citizen as asserted by the delegate. It follows that I am not satisfied the applicant husband gave incorrect information to the department or the Independent Merits Reviewer about his place of birth, his country of nationality or his status as a stateless Faili Kurd formerly resident in Iran.

7. The basis on which the delegate concluded that the applicant wife is an Iranian citizen is her marriage to the applicant husband in 2004. As I am not satisfied the applicant husband is an Iranian citizen, I am not satisfied the applicant wife is an Iranian citizen by virtue of her marriage. It follows that I am not satisfied the applicant wife gave incorrect information to the department about her country of nationality or her status as a stateless Faili Kurd formerly resident in Iran.

8. For these reasons, I find that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Alison Murphy
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   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.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.