1712198 (Refugee)

1712198 (Refugee) [2021] AATA 3299 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712198
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Louise Nicholls
DATE:9 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 09 June 2021 at 2:31pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – Iran – incorrect information in application – evidence of applicant’s Iranian citizenship – daughter claimed Iranian citizenship – inconsistent evidence about applicant’s name and place of birth – doubts over true identity – implausible and confused evidence – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant for review claims he is [age] years of age. In his application for protection made in July 2009 he claimed he was a stateless Faili Kurd born in Iraq. He arrived in Australia by boat without any passport or identity documents [in] April 2009. He was granted a protection visa on 15 July 2009.
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) on 2 June 2017.
The delegate cancelled the visa on the basis that the applicant had provided incorrect information when he applied for his protection visa.
The applicant answered a series of questions in his application for a protection visa and in his supporting statutory declaration, in which he stated his name, his place of birth and his citizenship status. The delegate found that the answers to those questions were incorrect and therefore he did not comply with s.101(b) of the Act. Further, the delegate considered those matters relevant to the exercise of the discretion as to whether the visa may be cancelled. The delegate found, in weighing all the relevant considerations, that the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant gave evidence about his background, his travel to Australia, his history and his current circumstances. He also gave evidence in relation to the grounds of cancellation set out in the delegate’s decision and matters relevant to the possible exercise of discretion. The applicant was given time following the hearing to make further submissions.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Material before the Tribunal
The Tribunal has before it two Departmental files. It also has the oral evidence of the applicant, his representative’s submissions and documents provided to the Tribunal.
The Departmental files contain some documents which are relevant to the consideration of cancellation, including:
Departmental file [Number]
·Notes taken from the applicant’s entry interview on 14 April 2009.
·Application for protection visa (Form C, Form B) dated 14 July 2009.
·Statement made by the applicant on 5 June 2009.
·Recording of the interview between the delegate and the applicant on 8 June 2009.
Departmental file [number]
·Representative’s submissions dated 14 May 2017.
·Psychological report from [a named Clinical Psychology Service] dated 18 May 2017.
·Delegate’s decision to cancel the applicant’s protection visa made on 2 June 2017.
·Australian citizenship certificates for [Mr A] and [Mr B] issued [in] August 2015.
·Notice of Intention to Consider Cancellation (NOICC) under Section 109 of the Migration Act 1958 dated 4 April 2017.
·Referral and report on engagement and marriage ceremonies in Iran.
·Photograph of a ceremony (either engagement or marriage).
·NSW Marriage Certificate for [Ms C] and [Mr D], September 2013, and onshore partner application and sponsorship for a partner to migrate to Australia, October 2013, and related documents.
·NSW Marriage Certificate for [Ms E] and [Mr F] and documents relating to the partner application and sponsorship for a partner to migrate, January 2014.
·Country information on Iranian passports and visas published on website of the Iranian Embassy.
Tribunal file 1712198
The applicant provided the Tribunal with:
·Delegate’s decision record dated 2 June 2017.
·Written submissions made by the applicant’s representative.
·Educational documents and medical reports relating to the applicant’s current circumstances.
Background
In the applicant’s application for protection he claimed he was a stateless Faili Kurd born in Iraq. Subsequent information obtained by the Department indicates that the applicant may be Kurdish, but he is not stateless. Rather, information suggested he was born in Iran and has Iranian citizenship.
At the Tribunal hearing the applicant stated he was [age] years old. He is married and his wife is living with the applicant in Australia. He has [adult] children living in Australia. His children are all living in Australia and are permanent residents.
He has [grandchildren] and they are all Australian citizens. He has some family members outside Australia. His parents are deceased, and he has [brothers] living in Iran.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation, subject to the applicant’s response to that notice. It is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
What were the particulars of non-compliance set out in the notice?
The visa holder first arrived in Australia as an unauthorised maritime arrival (UMA) [in] April 2009. On 14 July 2009 the visa holder applied for a Protection (Class XA) visa. The applicant was granted a protection visa on 15 July 2009.
The applicant was the holder of a Subclass 866 Protection visa at the time of cancellation on 2 June 2017.
On 4 April 2017 and prior to the cancellation, the delegate issued a notice (NOICC) under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, in that he had claimed in his protection visa application that he was a stateless Faili Kurd and the evidence before the delegate indicated that the applicant was an Iranian citizen.
The NOICC set out the information provided by the applicant in his visa application and supporting documents.
On the application Form 866C, the applicant included information in answer to a series of questions. In answer to some of those questions he referred to his RSA statement[1].
[1] Refugee Status Assessment “Statement of Claims dated 5 June 2009” Department File [number] ff. 53-56
The delegate went on to refer to the details and claims made in the statement which was included with his protection visa application and his RSA form. The delegate summarised that material as follows:
[Mr G] states that he is a Faili Kurd who was born in Iraq. He and his family originate from [District 1], Baghdad, Iraq. He is married. His wife was also born in Iraq. His [children] were born in Iran.
In summary, [Mr G] states that in 1970, when he was [age] years old, he and his family were forcibly deported from Iraq to Iran, by Saddam Hussein 's regime on account of their Kurdish ethnicity and Shia Islam faith.
[Mr G] and his family were taken to a camp in Mehran, Iran. They remained there for over two years waiting to be issued with green cards. As time passed and they were not issued with the green cards, they fled from Mehran to Ilaam.
Faili Kurds have been experiencing difficulties in Iran due to their nationality and ethnicity. They have been unable to gain a tertiary education, purchase a motor vehicle or license to drive, or receive a loan from the bank or purchase a house. [Mr G] was not able to receive a public education in Iran as he had not received residence papers. He did however receive an education, up to year 12, through private tuition at night school.
The Iranian authorities introduced tougher laws leading to employers being hesitant in hiring people without a permit to work. Again, the lack of residence papers meant that while [Mr G] could find employment, he was paid half the wages of what lawful residents received.
[Mr G] did not have freedom of movement within or outside the country, as movement is restricted without first seeking and gaining permission to do so from the provincial authorities.
During the Iran / Iraq war, the claimant was forced to work as a [cook] for almost two years, making [food] for Iranian soldiers. He worked with 8-10 people, 4 of whom were Iranian army officers and the other 3 were Faili Kurds. He was not provided with a uniform as he was considered a [cook] and not a soldier. The claimant completed this service as he was informed that he would be issued residence papers on completion. On completion of service however, residence papers were not provided.
[Mr G] claims societal discrimination also occurs, in particular, his son was questioned about the lack of ID documents by people in the street. Although he gave reasons why he did not have ID documentation, he was physically beaten, resulting in the loss of [number] teeth.
[Mr G] is unable to return to Iran as he does not have a lawful right to re-enter. He fears on return to Iran he will be arrested and detained at the airport. He will be referred to Etelaat (Iranian Government Internal Security Service) who will beat and torture him for reason that he has no ID.
Should [Mr G] be returned to Iraq, he fears the security authorities will accuse him of being a spy. They will find out about his previous expulsion from Iraq and they will mistreat and torture him before deporting him back to Iraq.
The NOICC went on to particularise the details of the applicant’s non-compliance with s.101(b) of the Act. The delegate referred to information known to the Department which indicated that the applicant had provided incorrect information.
The delegate stated that on 19 June 2012 the applicant lawfully changed his name from [Mr G], comprising [Name 1 and Family Name 1] to [Mr H, the applicant’s current name, comprising Name 1 and Family Name 2].
The applicant’s incoming passenger card indicated that he returned to Iran for two months [in] March 2013.
The delegate noted that on 25 May 2015 the applicant was interviewed in an identity interview conducted by an Immigration Officer in Sydney. The delegate noted that at the interview the applicant stated:
·His real family name is "[Family Name 2]".
·He purchased an airline ticket to Iran.
·He is an Iranian citizen.
·He was born in Elam, Iran.
·He went to the Iranian embassy in Australia and asked to be issued with a new Iranian passport.
·The Iranian embassy officials issued him with a passport number and a written letter. He paid $80 and was given a passport number which he used to obtain an Iranian passport in Iran.
The Department had information that the visa holder's daughter, [Ms C] is an Iranian citizen by birth.
Taking this information into account, the delegate considered the applicant did not comply with s.101 of the Act because he had given incorrect answers to questions on Form 866C Application for Protection (Class XA) visa. Specifically, where he was asked in Question 1 “What is your full name”, he answered:
Family name: "[Family Name 1]". Given names: "[Name 1]".
The delegate considered this answer to be incorrect because the applicant stated on 25 May 2015 in an identity interview that his real family name is "[Family Name 2]".
In Question 8 the applicant was asked his “Place of birth”; he answered:
Town/City "[District 1]".
Country "Iraq".
The delegate considered this answer to be incorrect because, according to the applicant’s Titre de Voyage, he was born in Elam, Iran.
In Question 21 the applicant was asked, “Your citizenship at birth” and he answered, "Iraq".
The delegate considered this answer to be incorrect because, according to the visa holder's Titre de Voyage, which was issued on 9 October 2012, he was born in Elam, Iran and he stated at interview on 25 May 2015 that he is an Iranian citizen.
In Question 22 the applicant was asked, “Your current citizenship (if different to at birth)” and he answered, "Stateless".
The delegate considered this answer to be incorrect because, according to the applicant’s Titre de Voyage, he was born in Elam, Iran and he stated at interview on 25 May 2015 that he is an Iranian citizen. Also, the Department had information that the applicant’s daughter, [Ms C], is a citizen of Iran by birth and, according to Iranian law, it follows that the applicant must therefore be a citizen of Iran.
In Question 23 the applicant was asked, “Do you hold any other citizenship or are you a national of any other country?” He answered, "No".
The delegate considered this answer to be incorrect because, according to the applicant’s Titre de Voyage, he was born in Elam, Iran and he stated at interview on 25 May 2015 that he is an Iranian citizen. Also, the Department had information that the applicant’s daughter, [Ms C], is a citizen of Iran by birth and according to Iranian law it follows that he must therefore be a citizen of Iran.
In Question 24 the applicant was asked, “If you are stateless, how and when did you lose your citizenship?” and he answered, "Expelled from Iraq to Iran in 1967".
The delegate considered this answer to be incorrect because, according to the applicant’s Titre de Voyage, he was born in Elam, Iran and he stated in an identity interview on 25 May 2015 that he is a citizen of Iran and was a citizen of Iran when he applied for his protection visa. Also, the Department had information that the visa holder's daughter, [Ms C], is a citizen of Iran by birth and, according to Iranian law, it follows that he must therefore be a citizen of Iran.
In Question 39 the applicant was asked, “Give details of all your past employment (For the periods you were not employed show the reason eg studying, unemployed, national service, in prison, etc. Make sure that you cover the whole time since leaving school, except for your current employment)” and he answered:
From/to; "Jan [year] — 01/1999".
Employer's name and address OR show if studying, unemployed, in national service, in prison etc. (specify city/town/village/region); "Farmer in [Area 1], Iran". Position/Occupation; "Farmer".
From/to; "Jan 1999 — Jan 2007".
Employer's name and address OR show if studying, unemployed, in national service, in prison etc. (specify city/town/village/region); "[Ilaam], Iran". Position/Occupation; "[Salesman]".
From/to; "Jan 2007 — Jan 2009".
Employer's name and address OR show if studying, unemployed, in national service, in prison etc. (specify city/town/village/region); "Farmer in [Area 1], Iran". Position/Occupation; "Farmer".
The delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and he stated at interview on 25 May 2015 that he is an Iranian citizen. The delegate considered that as an Iranian citizen, the two years that the visa holder claimed he worked with the Iranian army were military service and the visa holder omitted this detail from his answer.
In Question 41 the applicant was asked, “Why did you leave that country?” He answered that he is a stateless Faili Kurd from Iran, born in Iraq, could not attend study beyond secondary school and he could not work legally. The delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and is a citizen of Iran. As such, he enjoys the rights and protection of an Iranian citizen in Iran.
In Question 42 the applicant was asked, “What do you fear may happen to you if you go back to that country?” He stated that because he is a stateless Faili Kurd he is unable to return to Iran as he does not have a lawful right to re-enter Iran. He stated that if he returned to Iran he would be arrested and detained at the airport. He would be referred to Etelaat (Iranian Government Internal Security Service), who would beat and torture him because he has no ID and is stateless. He stated that he feared that the security authorities would accuse him of being a spy, they would find out about his previous expulsion from Iraq and they would mistreat and torture him before deporting him back to Iraq.
The delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and, as he stated at interview on 25 May 2015, he is an Iranian citizen. As such, he enjoys the rights and protection of an Iranian citizen in Iran.
The delegate also considered that given that the visa holder voluntarily returned to Iran using Iranian documentation in his identity [in] March 2013 and spent two months there, which is a considerable period of time, without apparent harm, this is evidence that that he did not and does not hold the adverse profile claimed by him in his protection visa application.
In Question 43 the applicant was asked, “Who do you think may harm/mistreat you if you go back?” He answered that on return to Iran he will be arrested and detained at the airport. He will be referred to Etelaat (Iranian Government Internal Security Service) who will beat and torture him for reason that he has no ID. He fears that the security authorities will accuse him of being a spy, and they will find out about his previous expulsion from Iraq and they will mistreat and torture him before deporting him back to Iraq.

The delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and as he stated at interview on 25 May 2015, he is an Iranian citizen. As such, the visa holder enjoys the rights and protection of an Iranian citizen in Iran. Given that he voluntarily returned to Iran using Iranian documentation [in] March 2013 and spent two months there, which is a considerable period of time, without apparent harm, this is evidence that he did not and does not hold the adverse profile claimed by him in his protection visa application.
In Question 44 the applicant was asked, “Why do you think this will happen to you if you go back?” He claimed that because he was a stateless Faili Kurd he was unable to return to Iran as he does not have a lawful right to re-enter Iran.
The delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and is an Iranian citizen. As such, he enjoys the rights and protection of an Iranian citizen in Iran. Given that the applicant voluntarily returned to Iran using Iranian documentation under his identity [in] March 2013 and spent two months there, which is a considerable period of time, and returned to Australia without apparent harm, this is evidence that the applicant did not and does not hold the adverse profile claimed by him in his protection visa application.
In Question 45 the applicant was asked, “Do you think the authorities of that country can and will protect you if you go back?” “Why not?” He answered: "No". He claimed that on return to Iran he will be arrested and detained at the airport and will be referred to Etelaat (Iranian Government Internal Security Service) who will beat and torture him for reason that he has no ID. He fears the security authorities will accuse him of being a spy, they will find out about his previous expulsion from Iraq and they will mistreat and torture him before deporting him back to Iraq.
The ^-delegate considered this answer to be incorrect because the applicant was born in Elam, Iran and as he stated at interview on 25 May 2015, he is an Iranian citizen. As such, he enjoys the rights and protection of an Iranian citizen in Iran. Given that the visa holder voluntarily returned to Iran using Iranian documentation under his identity [in] March 2013 and spent two months there, which is a considerable period of time, and returned to Australia without apparent harm, this is evidence that he did not and does not hold the adverse profile claimed by him in his protection visa application.
In the Declaration attached to the application form the applicant declared; "the information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail."
The delegate considered that this declaration was incorrect due to the incorrect answers to Questions 1, 8, 21 to 24 and 41 to 45 above.
In the overall consideration of the answers provided by the applicant, the delegate considered that the applicant’s answers to questions 1, 8, 21 to 24 and 41 to 45 in his protection visa application were incorrect. Therefore, he concluded that the applicant did not comply with s.101(b) of the Act.
As a consequence, he sent the visa holder a s.107 notice, giving particulars of the possible non-compliance, on 4 April 2017.
The applicant’s response to the NOICC
In his response to the NOICC, the applicant confirmed he had travelled to Iran after he arrived in Australia and claimed he used a fake Iranian passport to enter and leave Iran. He had to use a fake passport as he was concerned that if he and his wife used their travel documents to enter Iran, they might be questioned by the Iranian authorities and would be prevented from entering Iran.
The applicant maintained that he and his spouse have been and are still Faili Kurds and they do not hold Iranian citizenship. During the interview held on 25 May 2015 described in the NOICC, he told immigration officers that his current surname is [Family Name 2]. He was referring to his current surname, not his previous surname.
In relation to the place of birth recorded on his travel document, he could not complete the application form for this travel document as he cannot read or write English. A person assisted him by filling in the forms. When that person asked him where he was born and raised, he told her that he was born in Iraq but grew up in Elam, Iran.
The applicant also provided submissions on compelling and compassionate circumstances. These are summarised later in this decision.
Delegate’s decision
After considering the material, including the applicant’s response to the NOICC, the delegate was satisfied that the applicant’s answers to questions 1, 8, 22, 41, 42, 43, 44 and 45 in his form 866 Part C were not correct and found that the visa holder did not comply with s.101(b) of the Act.
The delegate went on to consider whether the visa should be cancelled, taking into account the applicant’s response and matters relating to the prescribed circumstances in r.2.41 of the Migration Regulations 1994 (the Regulations), as well as lawful government policy.
After considering and weighing those matters, the delegate decided to cancel the applicant’s protection visa on 2 June 2017.
Material before the Tribunal
The applicant provided the delegate’s decision record, written submissions made by the applicant’s representative and varied educational documents and medical reports relating to the applicant’s current circumstances.
The delegate’s decision record
The delegate noted in his decision that the applicant was interviewed by Departmental identity officers on 25 May 2015. A record was made of the interview by the interviewing officer. It was noted that the applicant stated:
·He is a citizen of Iran and his whole life he has "grown up in Iran".
·[Family Name 2] is his real family name.
·He used the name [Family Name 1] when he first arrived in Australia because [the first part] is his father's name and [the seond part] is his grandfather's name.
·He changed his family name from [Family Name 1] to [Family Name 2] on 19 June 2012, nine months before departing for Iran.
·On 9 October 2012, he obtained an Australian travel document in the name of [Mr H].
·He went to the Iranian embassy in Australia and asked to be issued with a new Iranian passport.
·Iranian officials issued him with his passport number and a written letter.
·He paid $80 and was given his passport number which he used to obtain an Iranian passport which was sent from Iran.
The delegate also considered Departmental records relating to the sponsorship application made by the applicant’s daughter, [Ms C], in 2013. In that application she stated that she is a citizen of Iran and that she acquired Iranian citizenship when she was born on [date]. This supported evidence that the applicant was an Iranian citizen at the time his daughter was born, as according to Article 976 of Iranian Nationality Law, persons whose fathers are Iranian citizens become Iranian citizens at birth.
The delegate also found that obtaining a Titre de Voyage in the name “[Family Name 2]” would have been necessary for the applicant to obtain an Iranian passport. The delegate noted that: “Before issuing him an Iranian passport, Iranian officials would require him to provide his ‘refugee passport’ containing his name and birth details so they can match the details with their passport records and records of international departures from Tehran.” The delegate referred to information in the Iranian Embassy’s website to support this finding.
The delegate noted that the applicant departed Australia [in] March 2013 and returned [in] May 2013. The delegate noted that the applicant was able to travel to Iran and stay there for two months without apparent issue or impediment.
Applicant’s submissions
On 15 October 2020, the applicant’s representative provided further submissions. He noted that the delegate made the decision to cancel on the basis of an interview held on 25 May 2015, where the delegate found that the applicant was an Iranian citizen, born in Elam, changed his surname to [Family Name 2] 19 months before obtaining a travel document, and travelled to Iran on an Iranian passport issued by the Iranian Embassy in Canberra.
The representative also noted that the delegate also considered Departmental information that the applicant’s daughter, [Ms C], was an Iranian citizen by birth and concluded by way of reference to Article 976 of the Iranian Nationality Law that the applicant was an Iranian citizen at the time of her birth. The submissions noted that the delegate considered the applicant travelled to Iran with no apparent issues arising in relation to the protection claim that he would face persecution from Iranian authorities due to being a stateless Faili Kurd.
The applicant’s representative submitted that the statements said to have been made in the interview of 25 May 2015 were not correct and the applicant continues to rely on the claims made in his protection visa.
The applicant claims that, when asked about whether he was of Iranian nationality in the 2015 interview, he gave a negative response.
After reviewing the identity interview conducted on 25 May 2015, the Tribunal considers that the applicant agreed:
·His family name is "[Family Name 2]".
·He purchased an airline ticket to Iran.
·He went to the Iranian embassy in Australia and asked to be issued with a new Iranian passport.
·The Iranian embassy officials issued him with a passport number and a written letter. He paid $80 and was given a passport number which he used to obtain an Iranian passport in Iran.
However, the applicant did not concede he was an Iranian citizen, but rather stated he had lived his life in Elam, Iran. He also stated that although he bought a ticket for Iran he stopped in [City 1, Country 1] and stayed there for the duration of his time outside Australia.
Tribunal Hearing
The applicant gave oral evidence to the Tribunal on 22 October 2020.
Place of birth
The applicant told the Tribunal he was born in [District 1], Iraq. He claimed his parents told him he was born in Iraq. He denied that there were documents showing he was born in Iran. The applicant claimed that he and his parents were forced to leave Iraq and that people were forced into trucks, but he stated he had no clear recollection.
He stated he left Iraq when he was [a teenager]. However, when the Tribunal asked him to recall details about living in [District 1] it was clear that he had no detailed recollection of the place or his life there. The Tribunal considers that if the applicant had been [a teenager] when he left, he should have been able to have some recall of the place and his experiences there.
The Tribunal put it to him that leaving [District 1] would have been a major disruption and that it would have been discussed within the family from time to time, yet it did not appear he had a detailed recollection of his early life in [District 1] or the family’s departure.
He stated people were forced to return to Iran. By way of explanation, he stated that some of these people were people who had been born in Iran, moved to Iraq and then were forced back to Iran. Also, there were grandfathers born in Iran and during the war they were forced back to Iran during the Shah’s time. However, the Tribunal found this evidence was not a personal recollection but something the applicant had heard from elsewhere.
As the applicant’s evidence was somewhat disconnected from the questions asked, the Tribunal asked him if he knew where his parents or their families originated. He stated they had lived in Iraq, but he did not know where they were born. The Tribunal told him it was difficult to accept his parents had not discussed this with him. In response, he stated that children born in Australia might not know where their parents were born. The Tribunal considers that the applicant’s response was evasive, and it told him that it appeared he did not wish to give a full answer. The Tribunal put it to him that his evasiveness may indicate that he is an Iranian citizen. He disagreed.
Given the lack of reliable documents and the poor quality of the applicant’s evidence, the Tribunal is unable to be satisfied as to the applicant’s place of birth.
Departure from Iraq to Iran
When asked what he could recall about his departure from Iran, he stated that during the night they put people into trucks and transferred them to Iran. He did not remember clearly but remembers a lot of people were forced into the trucks.
The applicant stated that when they were removed from Iraq they arrived in Mehran, Iran, a small border town, where they stayed for a few days. He then stated they stayed in Mehran for four to five months and were taken to Elam in military trucks by the Iranian government. They housed them in schools during summer holidays. Some people went to stay with their families in Elam and the government found places for the others to stay in the town and surrounding villages.
He and his family were housed in a village near Elam. During winter his father sold fruits and vegetables and in summer his father worked in construction and on a farm.
The applicant told the Tribunal he did not work when he was young. The Tribunal pointed out that he claimed he was about [age] years old at the time of the move. He stated he started working in the village after he married when he was about [age] years old. He worked on a farm planting vegetables, picking fruit and sometimes in construction. He was living in the village, he and his wife stayed in the village for a very long time and their children were born in the same village.
They moved from Elam to a city called Karaj, but he could not remember exactly when they moved. There was a lot of unemployment in the village and Elam. He did not have a clear recall of when they left, maybe when his oldest child was [age] years old. He found work in the construction industry in Karaj. He agreed that unemployment was a big problem in Iran, especially around Elam.
The Tribunal found the applicant’s evidence about his residence in Iran to be somewhat evasive. It formed the view that the applicant did not want to provide detail in the event that his evidence may contradict earlier statements made in connection with his protection claims.
Travel to Australia
The applicant left Karaj and arrived in Australia in April 2009. The applicant left by plane from Iran through the international airport in Tehran. He claimed that he had a fake Iranian passport. He claimed that [Mr G] was the name on the passport. He stated the family name was [Name 1] and [the first] and [second parts] were his father’s and grandfather’s names.
The Tribunal put it to him that country information indicates that it is unlikely a person would be able to pass through the international airport in Tehran with a false passport. He claimed that at that time it was not that difficult, but it has now it has become more difficult. The Tribunal does not accept this evidence.
A 2005 report by DFAT noted that counterfeit passports and "look-alikes" are rarely seen in Iran, but some document alteration is seen and this is primarily limited to photo-substitution. These sources, however, suggest that false passports are routinely detected at the major Iranian airports and that bribery of airport officials is possible but unlikely. In particular:
Fraudulent Iranian passports are either a) those seen abroad and b) those seen in Iran. To date those in (a) have been produced and used primarily in Turkey. Buyers are generally Iranian males who have gone to Turkey to escape the draft in Iran. Under (b), counterfeits and "look-alikes" are rarely seen in Iran. Some document alteration is seen and this is primarily limited to photo-substitution. Other forms of fraud seen but which are rare, include counterfeit airport entry and exit stamps and the obtaining of genuine passports through use of altered or counterfeit national I.D books.[2]
[2] Department of Foreign Affairs and Trade (DFAT) 2005, Country Information Report No. 05/30: Exit procedures from Iranian airports, Country Information Service, 21 June.
In 2009 the Danish Immigration Service also received reports that leaving Iran illegally through an airport is very difficult due to thorough security checks. Its source, a “western embassy”, stated that bribery of airport personnel may be possible, but would involve bribing many staff members as there are several checkpoints at the airport.[3]
[3] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April >
A UNHCR official provided information to the Canadian Immigration and Refugee Board on Iranian airport entry/exit procedures in 2006 as follows:
Verification of passports and documentation at departure points at land borders and airports is carried out in the last phase of exit procedure. This means that in airports, after the tickets are checked and the luggage is delivered to the airline and before getting into the waiting area for departure, the passports shall be checked by a Disciplinary Forces officer who verifies in [the] NAJA [law enforcement] database whether the passport is fake and whether the person standing in front of the officer is the same person whose name and photo appears on the passport.
While the Tribunal accepts that false documents may have been readily obtained in Iran in 2009, it does not accept the applicant’s evidence that it was not difficult to leave with a false passport. The Tribunal prefers the country information on the difficulties in departing on a false passport to the evidence of the applicant.
The applicant claimed he did not remember the name of the airline he travelled on from Iran on his way to Australia. The Tribunal put it to him that the flight would have taken many hours and it was difficult to accept he did not recall the name of the airline. He stated he was not thinking about the name of the airline at the time.
The applicant stated that he left [Country 2] by boat which arrived on Christmas Island. He spent about three months on Christmas Island and applied for a protection visa. The application form was set out in English and the interpreter helped him fill in the form.
The applicant’s statement was prepared by a migration agent on his instructions. This person took his instructions and attached the statement to his application. He was later interviewed by an officer of the Department and a decision made to grant the visa. The decision was made on the basis he was a stateless Faili Kurd.
Change of name

100. The applicant took steps to sponsor his wife and [children] after he obtained a protection visa. They arrived in Australia about two or three years after he arrived in Australia.
101. The Tribunal asked him why he decided to change his name. The applicant gave a confused account of why he changed his name some months before applying for an Australian travel document. He stated he changed his name because his daughters were embarrassed when they were studying because the family name of [Name 1] was a male name. He claimed they were not happy and this is why he changed the name to [Family Name 2]. The Tribunal put it to him that it did not find his explanation very believable. It noted that when his daughters were studying, instruction was in English and their classmates would have been from different backgrounds. He stated that some Iranian people laughed at them in Australia.
102. The applicant agreed he applied for a travel document after he changed his name and it was in the name of [Family Name 2]. He applied for the travel document because it is like a passport. Other people had applied, so he had as well. He claimed friends had travelled to Thailand and other places. He had not, however, travelled to Thailand or other places. He also claimed he needed an identity document; however, the Tribunal does not accept this as the Australian government had provided him with an identity document.

103. The Tribunal considers the applicant applied for the travel document as he had plans to travel overseas. The applicant agreed he had obtained his travel document on 9 October 2012. The applicant claimed that although the place of birth in that document was “Elam”, this was an error. When asked why the document had nominated Elam as his place of birth he stated that perhaps the officer or his friend who filled out the forms had written it incorrectly. When asked why they would have nominated Elam instead of [District 1] he stated he did not know.
Travel overseas
104. In his response to the NOICC the applicant confirmed he had travelled to Iran after he arrived in Australia and claimed he used a fake Iranian passport to enter and leave Iran. He had to use a fake passport as he was concerned that if he and his wife used their travel documents to enter Iran, they might be questioned by the Iranian authorities and would be prevented from entering Iran.
105. However, at the identity interview and the Tribunal hearing, the applicant claimed he had not travelled to Iran. He did concede he had travelled overseas sometime after he arrived in Australia. The applicant used his travel document to depart Australia, but he could not remember when he left. The Tribunal put it to him that the records showed he travelled in 2013.
106. He stated he had purchased a ticket for Iran, but he stopped in [City 1] and did not travel to Iran. He claimed he stayed in [City 1] with a friend for two months and returned to Australia. When asked about evidence of his entry and visa to [City 1] he stated his friend facilitated his entry. There is no evidence of a visa or any other permit to enter and depart.

As discussed with the applicant, the Tribunal does not accept his evidence that he entered and remained in [City 1] for two months. He could not produce any evidence of a visa or permit to stay in [City 1] or any arrival or departure information which might support his evidence. Country information indicates that for those on Australian passports there is no requirement for pre-entry visas to enter [Country 1]. On arrival they are able to enter, and obtain, a 30-day visa. Iranians must obtain a pre-approved tourist visa or entry visa before they can enter [Country 1] (a passport is required to obtain this). Those wishing to travel on to a third country need to obtain a Transit Visa upon arrival in [Country 1]; a passport is needed to obtain this.[4]
[4] “Visas: Entry to [Country 1]”, [Country 1] Ministry of Foreign Affairs and [Embassy] of [Country 1] in Canberra.

108. Further, although he claimed he stayed with a friend who facilitated his entry and residence in [City 1], he did not know the address of where he stayed in [City 1], he did not know what work his friend did and he claims he has since lost contact with his friend.
109. The Tribunal does not accept the applicant purchased a ticket for Iran but decided instead to remain in [City 1] with a friend for two months before returning to Australia. The Tribunal considers that the applicant may have transited in [City 1] but that he travelled to Iran where he stayed for approximately two months before returning to Australia. It notes in his original response to the NOICC he had conceded he travelled to Iran.
Identity interview with officer of Department
110. The Tribunal advised the applicant that it intended to write to him inviting him to comment or respond to information he gave a Departmental officer at an identity interview conducted with the applicant in 2015, which would be the reason, or part of the reason, for affirming the review. In the end the Tribunal did not invite the applicant to comment or respond as such a response would not have altered the outcome of the review. At the hearing the Tribunal outlined the information said to have been provided in that identity interview.
111. The Tribunal put to the applicant that in the interview he had stated he was born in Elam, Iran and that he had gone to the Iranian Embassy to apply for a passport, had been given a passport number and had used this to obtain a passport from Iran. He stated he had not said he was born in Elam and his answer may have been incorrectly interpreted. He denied he had an Iranian passport. The Tribunal asked him why he went to the Iranian Embassy. He stated he had not gone to the Iranian Embassy. He stated someone told him that he could get a number which looks like a passport number and then get a false passport.
112. The Tribunal also noted that at the interview, it was put to him his daughter said she was an Iranian citizen in her application to sponsor her husband, and that according to the nationality laws of Iran this means that the applicant was an Iranian citizen.
113. DFAT reports that:
5.46 Iranian passports are issued to nationals of Iran for the purpose of international travel. Passports serve as proof of Iranian citizenship. Iran has issued diplomatic and service biometric passports since July 2007. Ordinary biometric passports have been issued since February 2011.
5.47 Applicants for a passport are required to provide completed copies of the application form; their original Iranian Birth Certificate (shenasnameh); photocopies of all the pages of the Birth Certificate (containing an ID photo); the original and a copy of their Residence Permit card (IND issued document); and three passport photos taken within the past six months.

114. Nationality and citizenship are derived through paternal lines and children are not automatically entitled to Iranian citizenship unless their father is an Iranian citizen. Subject to some exceptions which do not cover the applicant’s situation, if children are entitled to Iranian citizenship then their father would be an Iranian national.[5]
[5] “Feyli Kurds—obtaining identity travel documents”, DIBP Tehran, 17 September 2015, p. 8,
CISEC96CF13392
Did the applicant provide incorrect information in the way described in the notice?
115. In the notice (NOICC) the delegate considered that the applicant had given incorrect answers to Questions 1, 8, 21 to 24, 41 to 45 and in his declaration.
116. In considering matters of proof in cancellation matters, the Tribunal notes that the basis for the exercise of the cancellation power in s.109 of the Act is finding the existence of factual material on which to cancel the visa. Thus, the Tribunal must be positively satisfied that there was non-compliance in the way described in the s.107 notice.
117. The main issues for the Tribunal are whether the applicant, in his application for protection and related statement, provided his full family name, his correct birthplace, his correct citizenship at birth, his correct current citizenship, whether he completed military service in Iran, whether he is an Iranian citizen and whether he holds the adverse profile claimed by him in his protection visa application.
118. The Tribunal finds that the applicant gave incorrect information and did not provide his full family name in answer to Question 1 of his application. It finds that his full family name is [Mr H]. It finds his full family name was not [Mr G] as set out in his application for protection.
119. Firstly, at the identity interview held in 2015 he conceded that his family name was [Family Name 2].
120. When questioned at the Tribunal hearing about his name change to [Family Name 2] in 2012, he gave a very confused account of the reasons for the name change in Australia. He claimed his daughters were embarrassed and other Iranians laughed at them because their family name was the name of a male. The Tribunal finds the applicant’s explanation for formally changing his name in 2012 is not plausible and makes no logical sense. His daughters were adults by the time of the name change and it is not clear why such a change would be desirable some three years after he arrived in Australia. The Tribunal does not accept he changed his family name for the reasons he has given. It considers that [Family Name 2] was always his family name and the applicant used a different name, that is [Family Name 1] when he arrived in Australia. He subsequently changed his name in Australia because he wanted to be known by his correct family name and for the purposes of future travel.
121. The applicant claimed in his statement and at the Tribunal hearing that he was born in [District 1], Iraq and that he and his family were forced to move to Iran when he was 15 to 16 years of age. Contrary to this evidence, the applicant’s Australian travel document states he was born in Iran. The applicant speculates that this may have occurred because of an error in the application process for the travel document, although it is difficult to understand how such a mistake could be made. The applicant’s evidence as to his familiarity or knowledge of [District 1], Iraq and the claimed forced departure from Iraq had many problems. Nevertheless, in listening and reviewing the applicant’s identity interview, the Tribunal did not find that the applicant made an admission that he was born in Elam, Iran. During the interview, the delegate put to the applicant that he had been born in Elam, but the applicant did not specifically concede this, rather he stated he had lived all his life in Elam which is a somewhat ambiguous answer. However, he later strongly rejected the suggestion by the Tribunal that he had told the Departmental officer he was born in Elam.
122. In weighing the evidence on this issue, the Tribunal considers it cannot make a positive finding that the applicant was born in Elam, Iran and it cannot easily draw that inference from the evidence. It also considers there is not sufficient evidence to conclude that the applicant had Iranian citizenship at birth.
123. The Tribunal finds that the applicant did give incorrect information in answer to Question 22, which asked him his current citizenship. The applicant stated he was stateless at the time he completed the application; however, the Tribunal considers that at that time he was an Iranian citizen.
124. The applicant claimed he left Iran on a false Iranian passport, but the Tribunal does not accept this. The country information indicates that at the time the applicant left Iran in 2009, it was highly unlikely that persons using false passports could pass through the comprehensive border controls and checks at the international airport in Tehran. The Tribunal considers that the applicant departed Iran using his own Iranian passport in his full family name.
125. The applicant was interviewed in 2015 in relation to his identity. The delegate’s decision record notes that the applicant stated he went to the Iranian embassy in Australia and asked to be issued with a new Iranian passport. The Tribunal finds is consistent with the interview recording. He paid $80 and was given a passport number which he used to obtain an Iranian passport from Iran. When questioned about this statement at the Tribunal hearing the applicant denied he had been to the Embassy and said someone had given him a passport number which he could use to create a passport in Iran. The Tribunal does not accept his explanation and finds that the applicant did attend the Iranian Embassy and applied for a passport. The Tribunal has drawn an inference from this evidence that the applicant is entitled to apply for an Iranian passport because he is an Iranian citizen.
126. The delegate’s decision record also noted that the applicant’s daughter, [Ms C], applied to sponsor her partner for a partner visa and stated in her application that she was an Iranian citizen. As set out above, nationality is derived through paternal lines and if the applicant’s daughter was an Iranian citizen the applicant must also be an Iranian citizen. The applicant did not explain why his daughter claimed Iranian citizenship in his statement, in his representative’s submissions or in evidence at the Tribunal hearing.
127. Drawing on the evidence and findings set out above, the Tribunal finds that at the time of his application for the visa the applicant was an Iranian citizen. It finds that the applicant answered Question 22 incorrectly as he was not stateless at that time.
128. The delegate considered the applicant had given incorrect information in answer to Question 39 which asks for details of employment including military service. The Tribunal does not consider there is sufficient evidence to make a positive finding that the applicant completed two years of military service at the time he claims he was employed as a [cook] in the Iranian army. It follows that it does not find that the information in answer to Question 39 is incorrect.
129. The Tribunal finds the applicant answered Question 41 incorrectly because he did not leave Iran because he was a stateless Faili Kurd. It also finds he did not answer Question 42 correctly because he stated he cannot return to Iran because as a stateless Faili Kurd he does not have the right to re-enter. The Tribunal finds he is an Iranian citizen and as such has the right to re-enter Iran.
130. In answer to Questions 43, 44 and 45, he stated he will either not be able to re-enter Iran or will be harmed by Iranian authorities if he tries to re-enter because he is a stateless Faili Kurd. As the Tribunal has found he is an Iranian citizen, it considers he gave incorrect information in answer to these questions.
131. As the Tribunal has found that the applicant has given incorrect answers to questions set out above, the Tribunal also considers the applicant gave incorrect information when he completed his declaration attached to the application form.
132. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the NOICC sent to him pursuant to s.107 of the Act.
Should the visa be cancelled?
133. 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).
134. 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.
135. Dealing with each specified prescribed circumstance in turn:
· The correct information. The Tribunal considers the correct information is that the applicant’s family name is [Family Name 2] and not [Family Name 1]. The applicant accepts the applicant is of Faili Kurdish ethnicity. The Tribunal also considers that the applicant was previously the holder of an Iranian passport issued in the name of [Family Name 2] and it follows that he is an Iranian citizen. The Tribunal does not accept that the applicant was stateless.

· The content of the genuine document (if any). This is not relevant to the facts and circumstances in this matter.

· 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 Tribunal has read the delegate’s decision record and considers that the protection visa was granted on the basis that the applicant was a stateless Faili Kurd and that he faced serious discrimination amounting to persecution for this reason if he returned to live in Iran.

· The circumstances in which the non-compliance occurred. The applicant has not conceded that he is an Iranian citizen. The Tribunal considers that the applicant provided the incorrect information set out above to strengthen his claims for protection. The Tribunal notes that the applicant sought refugee assessment in June 2009 and the visa grant was made on 13 July 2009 after a fairly short period of consideration. The Tribunal accepts that the applicant and his family are of Faili Kurdish ethnicity and were living in poor economic circumstances in Iran in an area of high unemployment. At the hearing the applicant stated that he does not think of his own interests but is most concerned with the interests of his children. It may be that the applicant is unwilling to concede that he is an Iranian citizen as he is aware that this may have a significant impact on other members of his family, that is, his children, their spouses and his grandchildren and they may be affected by consequential cancellations. The applicant’s representative stated that the applicant’s daughters were previously considered for cancellation but that the Department decided not to proceed with those cancellations.

· The present circumstances of the visa holder. The applicant’s representative made submissions in 2017 and 2020 as to the applicant’s current circumstances. He submitted that the applicant arrived in Australia in 2009 and thus has lived in Australia for almost 12 years. He has brought his wife and [adult] children to Australia under the humanitarian program. His children are married, and he has [Australian] citizen grandchildren. His children, their partners and children have established lives in Australia. The family have strong familial connections and the removal of the applicant would be emotionally and psychologically harmful to his children and grandchildren.

· The applicant gave evidence that he and his wife have not worked in Australia. He stated they are older and have multiple health problems. The applicant gave evidence that his son and sons-in-law are working [in] Australia. He and his family members have regular and close contact with each other. He sees his children and grandchildren every day and is involved in their care when his children are studying or working.

·The applicant is [age] years of age. The representative submits, and the evidence before the Tribunal indicates, that he has a number of medical conditions which have affected his health and wellbeing. He has been seeing a psychologist [since] 2014 and the applicant provided a copy of a letter from his psychologist. That letter noted that the applicant suffers from depression and anxiety and he has been receiving counselling and psychotherapy [on] a regular basis. He notes that the applicant’s mental health has been deteriorating due to the applicant’s uncertain migration status. The applicant’s representative submits that removal would harm the applicant physically and mentally. Further, he needs the support and care of his family given his medical and psychological condition.
·Later medical reports (15 October 2020) indicate that the applicant has a number of conditions, including a heart condition with a consequent angioplasty and a stent insertion, high blood pressure, pre-diabetes, osteoarthritis, depression, anxiety and a number of other medical conditions. [The psychologist] provided an updated psychological report in October 2020 which indicated that the applicant continued counselling and psychotherapy.
·The applicant lives with his family in Australia and has no members of his close family living in Iran. He is not in touch with other relatives in Iran.
·The applicant also provided several documents showing that he has undertaken and successfully completed a series of English language courses.

· The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.

·There is no evidence that the applicant has failed to comply with obligations under

· Any other instances of non-compliance by the visa holder known to the Minister. There is no evidence before the Tribunal of other instances of non-compliance by the applicant.

· The time that has elapsed since the non-compliance. The application for protection was made on 14 July 2009. Thus, almost 12 years has elapsed since the non-compliance took place.

·Any breaches of the law since the non-compliance and the seriousness of those breaches. The applicant submits and the Tribunal accepts that the applicant has not been involved in any breach of the law and has endeavoured to abide by the law.

· Any contribution made by the holder to the community. The applicant referred to the care he provided to his grandchildren enabling his children to participate fully in work and study.

136. While prescribed circumstances 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”, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
137. While there is not sufficient information before the Tribunal to determine the likelihood of consequential visa cancellations, the Tribunal considers that it is possible that if the applicant’s visa is cancelled his wife and three children and their partners’ visas may be cancelled, as the applicant sponsored his family members for their humanitarian visas.
138. The applicant has only provided minimal evidence concerning the circumstances of his grandchildren. However, the Tribunal notes the evidence that the applicant’s [grandchildren] were born in Australia, are Australian citizens and those of school age are attending Australian schools. If the applicant’s visa is cancelled and he is removed from Australia, and his children and grandchildren remain in Australia, the Tribunal accepts that the applicant’s grandchildren will lose the benefits of the day to day care and contact they have with their grandfather in Australia. In these circumstances it accepts that the best interests of the grandchildren are to continue the close personal contact they have with their grandfather.
139. If the applicant, his wife, his children and their spouses are all removed from Australia to Iran as a result of consequential visa cancellations, it is likely that they will take their children with them. The Tribunal does not have any evidence as to the best interests of the grandchildren in these circumstances, as there is no information to compare the situation they would experience in Iran as opposed to their current situation. However, the Tribunal notes country information which indicates that there is a high rate of unemployment in Iran and it may be that the grandchildren’s living conditions and economic circumstances may be adversely affected if the families return to Iran.
140. There is no suggestion that the applicant would face indefinite detention should his visa be cancelled. He is an Iranian citizen and would be able to apply for an Iranian passport and return to live in Iran.
141. The Tribunal has concluded that the applicant is an Iranian citizen of Faili Kurdish ethnicity. If he returned, he would enjoy the rights of an Iranian citizen and the Tribunal considers he would not face a real chance of persecution for reasons of his Faili Kurdish ethnicity. The Tribunal has also concluded that the applicant returned to Iran for a two month visit and was not mistreated in the way he claimed that he feared in his application for protection. It does not consider that if the applicant returned to Iran he would be mistreated or harmed for reasons of being a Faili Kurd or a failed asylum seeker. No other reasons were put forward by the applicant as to why he might face serious or significant harm if he returned to Iran now or in the foreseeable future.
Conclusion
142. The Tribunal considers that in 2009 the applicant concealed his true identity and his citizenship status to support his claims for protection. Further, he did not take the opportunity to give an accurate account of his history to the Tribunal on review. The incorrect information he gave to the Department resulted in the grant of a protection visa to which he may not have been entitled had the correct details been provided.
143. The applicant did himself no favours in the evidence he gave to the Tribunal. On a number of issues his evidence was highly implausible, confused and lacking in rationality. While in no way condoning the provision of false information in applications for visas, the Tribunal considers the applicant has a strong interest in the welfare of his children and grandchildren. It is the Tribunal’s view that he did not wish to give the Tribunal a full and accurate account of his history due to his significant fear that it may have an adverse impact on the welfare and best interests of his children and grandchildren.
144. The applicant has lived in Australia for almost 12 years which is a lengthy period of time. He is in poor health both physically and psychologically. His [adult] children have established their homes and lives in Australia and the applicant has [Australian] citizen grandchildren living near the applicant and his wife. The family members are close and provide each other with care and support. If the applicant’s visa was cancelled it would have a significant impact on the family group whether his children stayed in Australia or the whole family returned to live in Iran. The applicant has not breached any laws of Australia and appears to be a law-abiding resident. He has completed a number of English language courses which would be extremely difficult for a person with little or no formal education at his age and stage of life. The Tribunal considers this shows a commitment to living in a country where English is the official and spoken language.
145. While there are a number factors that weigh in favour of cancelling the visa and these factors have caused the Tribunal some significant concern, the Tribunal considers that overall other factors have slightly more weight in determining whether to cancel the applicant’s visa. Considering all the matters before it, the Tribunal concludes that the applicant’s visa should not be cancelled.
146. As set out earlier, 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should notbe cancelled.
DECISION
147. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Louise Nicholls
Senior 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.

[2021] AATA 3299

9 June 2021

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Jurisdiction

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Natural Justice

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