1712580 (Refugee)

[2020] AATA 713

1712580 (Refugee) [2020] AATA 713 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712580

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Nicole Burns

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 11 March 2020 at 5:39pm

CATCHWORDS

REFUGEE – cancellation – Protection visa – Iraq – incorrect information provided in protection application – applicant was not the holder of an Iranian passport – applicant is an Iraqi citizen  –voluntary return to Iran – medical condition of daughter – significant disruption to daughter’s care – likely to cause substantial hardship –  no jurisdiction with respect to the second, third and fourth named applicants – decision under review set aside

LEGISLATION

Migration Act 1958, ss 101,107,109, 116, 140

Migration Regulations 1994, r 2.41, Schedule 2

CASES

MIAC v Khadgi (2010) 190 FCR 248
Saleem v Migration Review Tribunal [2004] FCA 234
SZEEM v Minister for Immigration [2005] FMCA 27

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa because they were satisfied that the applicant provided incorrect answers on her protection visa application in breach of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The second, third and fourth named applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second, third and fourth named applicants.

4. The first, second and fourth named applicants appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A], who is a friend of the applicant’s. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 11 July 2016, which advised the applicant that her visa may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (visa applications to be correct) of the Act. She was advised to respond in writing. The applicant’s then representative provided a written response dated 28 July 2016 and supporting documents.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act:

    s.101 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 …

12. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to her protection visa application, and information she had provided at interview with an interpreter as part of a Protection Obligations Determination (POD) on 18 April 2011, which set out her background, experiences in Iran and Iraq, and specific protection claims and future fears. These included in summary that:

    ·The applicant was an Iraqi citizen who moved to Iran when young and lived in Iran as a refugee, without identity documents and access to services and resources.

    ·Her family resided in Qom (Iran) as refugees; her father was given a Green Card and later a White Card. He did not have permission to work, and worked illegally.

    ·She and her family faced discrimination from the authorities and public in Iran as refugees and Arabs.

    ·She married her first husband – an Iraqi refugee in Iran – in 1994. He was abusive and violent and belonged to an Islamic extremist group (Hawza group). They divorced not long after they married.

    ·The applicant married her second husband and, fearful of her ex-husband (who continued to threaten her), they moved to Iraq in 2006. After [a number of] weeks residing in Iraq she and her husband returned illegally to reside in Iran, due to being threatened there (considered Iranian).

    ·In Iran they were not eligible for a White Card and it was difficult to survive in Iran without access to basic human rights.

    ·They began planning to leave Iran in May 2010 and contacted a people smuggler who organised her husband’s fake passport.

    ·The applicant cannot go back to Iran because she has no identity documents or status there. She does not know if the authorities will allow her to return, she fears they could deport her to Iraq where she fears being harmed, viewed as an Iranian.

    ·In Iran her husband would have to work illegally in order for them to survive; she would be forced to live without documentation; their children have no access to education or healthcare and her daughter has a medical condition that requires treatment.

    ·She fears the government in Iran because they discriminate against her and persecute her as an Iraqi refugee. They also support the Hawza group and will not protect her from that group or her ex-husband.

    ·She has no right to return to Iran and they will not provide her with any protection.

    ·She also fears harm from the Iranian people.

13. The POD delegate was not satisfied that the applicant was owed protection and the case was referred to an Independent Reviewer (IR) for an Independent Protection Assessment. On 2 April 2012 the IR recommended the applicant be recognised as a person to whom Australia has protection obligations. The applicant applied for a protection visa on 28 June 2012 with her then husband (the second named applicant) and her eldest daughter (the third named applicant) as her dependents. Based on her answers provided in the application form, at interview and in supporting statements she was granted a protection visa on 3 July 2012.

14. However subsequently, as set out in the NOICC, the Department became aware of information that the applicant was an Iranian citizen – at least since 2006 – and was at the time of arrival and when she applied for protection. As well, information before the Department (contained in the applicant’s outgoing and incoming passenger cards) suggested the applicant had returned to Iran four times since her protection visa was granted, in the period from November 2012 to March 2016. According to the notice, such information indicated that the applicant had provided incorrect information in association with her protection visa application that she did not have legal status in Iran and that the Iranian authorities could not protect her from harm, and would persecute her.

    Response to the NOICC

15. In response to the notice which sets out this information the applicant’s then representative acknowledged that the applicant had returned to Iran on four occasions as indicated in the NOICC, but submitted that there was no non-compliance. He argued that she returned each time for compelling reasons – primarily due to her mother being unwell – and that she was not concerned about the Iranian authorities during her visits because she is not an Iranian citizen.

16. With regard to whether or not the applicant was an Iranian citizen – at least from 2006 as indicated in the NOICC – the representative submitted that she is not. He explained that she is an Iraqi citizen who lived in Iran as a long-term refugee – evidenced by a translated copy of her Iraqi identification card provided – and whilst she married her second husband (the second named applicant) in 2006, it was a religious marriage only, which was never registered. He submitted that as she was not legally married to her second husband the applicant was not eligible to apply for Iranian citizenship. The representative also advised in the response to the NOICC that the applicant and her second husband separated in 2013 but have continued living together to care for their eldest daughter, [Ms B]. He also advised that the second named applicant lodged a Partner visa application through the Australian Embassy in Tehran to bring his first wife and their children to Australia, and provided a copy of the acknowledgement letter, dated 27 June 2013.

17. Material provided in response to the NOICC included medical documents related to the applicant’s mother in Iran and her daughter in Australia; a copy of the second named applicant’s translated Iranian shenasnameh (birth booklet); a copy of the applicant’s Australian travel document (titre de voyage); and translated copies of the applicant’s and some of her family members’ Iraqi identification cards.

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

18. At hearing the Tribunal discussed the relevant contents of the NOICC with the applicant. She disputed the delegate’s findings that she provided incorrect information in relation to her protection visa application about her citizenship status and fears of persecution in Iran. She explained that she was born in Iraq to Iraqi parents; they moved to Iran as a family when she was young and lived in Qom as Iraqi refugees; she married her first husband (also an Iraqi refugee living in Iran) in around 1994 in a religious ceremony; they divorced in around 2003 because he was violent and abusive; and she married her second husband in around 2006. She acknowledged that her second husband, whilst born in Iraq, had acquired Iranian citizenship when young. However she explained that when she married him in 2006 he had another family – a wife and two children at the time – who he continued to live with after their marriage (only visiting the applicant who lived in an apartment in Qom). Her second husband had a son with his first wife in 2008, and the applicant and he had a daughter born in [year] ([Ms B] – the third named applicant). They had their second daughter – [Ms C] (the fourth named applicant) – in Australia in [year].

19. The applicant told the Tribunal that her second husband, although an Iranian citizen, refused to register their marriage because he remained married to his first wife and did not want to let her (or their then two children together) know, or his other family members and relatives in Iran. To this day they do not know. The applicant explained that although eligible to obtain Iranian citizenship based on her marriage to her second husband because he is an Iranian citizen (and given polygamy is legal in Iran), in the absence of them registering their marriage, she has been unable to do so. She said if she was an Iranian citizen she would not have left Iran [on] a (genuine) Iraqi passport in 2010; paid someone to obtain a fake Iranian passport to enter [another country] not long thereafter; and used her Australian travel document (titre de voyage or TDV) – containing Iranian visas – to visit Iran four times from 2012 to 2016. (Copies of these documents were submitted in response to the NOICC.)

20. At hearing the second named applicant confirmed the applicant’s oral evidence in this regard. He stated that although born in Iraq he moved with his family to Iran when young and his father was able to obtain Iranian citizenship – specifically a shenasnameh – for him (and other family members) by paying money to someone. He used that shenasnameh to obtain an Iranian passport to leave Iran in 2010; he discarded it in the sea en route to Australia and has not replaced it. He said he has not told his first wife and their children about his marriage to the applicant (or about the existence of their two daughters), worried about causing them emotional distress. That is why he does not want to register the marriage in Iran because if so, it will be recorded on his shenasnameh and his first wife (and their children) will find out. When asked how he has managed to keep his second family secret for so long from his first family, the second named applicant said it has been difficult. He told his first wife that he was going to Australia and would sponsor them in the future.

21. The second named applicant told the Tribunal he has no plans to register his marriage to the applicant if they have to return to Iran, even if that would mean their daughter [Ms B], who lives with a number of disabilities and related health and developmental problems, would be able to access healthcare. This is because he does not want his first family to find out as mentioned, but also because he and the applicant are separated.

22. In his written and oral submissions to the Tribunal the representative submitted that the reasons given for non-compliance by the delegate are purely speculative and not based on evidence. In contrast he argues that the applicant has provided evidence of her Iraqi citizenship, as well as a copy of her religious marriage certificate (regarding her second marriage), which contains the applicant’s Iraqi passport number and the second named applicant’s shenasnameh number. He notes this Iraqi passport was used by the applicant to travel to [Country 1] and return to Iran in 2006, not as determined by the delegate, on an Iranian passport. The applicant also provided a copy of her second husband’s shenasnameh as evidence that their marriage was not registered, given it lists his first wife and their three children – including one born [after] their marriage – but omits any mention of the applicant and their daughter, [Ms B]. This indicates that their religious marriage ceremony was not registered because if so, it would have been recorded in the shenasnameh as an update of significant events in a person’s life as is practice in Iran.

23. Furthermore the representative submits that the applicant’s return trips to Iran holding Australian travel documents, not an Iranian passport, indicate that she is not an Iranian citizen. There were compelling and compassionate reasons for the return trips, he argues, and in any event they are not evidence that the applicant did not have a fear of persecution at the time she claimed protection. He refers to reasoning along these lines in other cancellation cases considered by the Tribunal. Additionally he noted the existence of the Department’s policy in respect of visa condition 8559[1] suggests approval is appropriate where the visit is for the purpose of visiting a close relative who is seriously ill or dying, as was the reason behind the applicant’s returns to Iran.

    [1] Attached to all protection visas granted on or after 3 June 2013 which provides that the visa holder cannot return to the country from which protection was sought unless the Minister approves so in writing.

    Findings in relation to non-compliance

24. The Tribunal has considered the information contained in the NOICC, the applicant’s then representative’s response to it, the applicant’s and second named applicant’s oral evidence to the Tribunal, the current representative’s submissions to the Tribunal, and other relevant material before it to assess whether the grounds for cancelling the visa are made out.

25. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in visa cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the 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 because 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.[2]

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

26. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.

27. The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v Minister for Immigration.[3] In this case the NOICC particularises answers not given correctly concerning a number of matters as set out in paragraph 12 including about the applicant’s citizenship and related fears of persecution (and lack of state protection) in Iran; experiences of serious harm from her first husband, who was allegedly violent and controlling, and claims that she and her (second) husband returned illegally to reside in Iran (not eligible for a White Card) and her husband would have to work illegally in order for them to survive. In the NOICC the particulars given upon which such allegations were based included:

    (i)Information that has been made available (to the Department) that indicates the applicant was an Iranian citizen (at least since 2006); and

    (ii)Her return to Iran on four separate occasions after her protection visa was granted, in the period from November 2012 to March 2016.

    [3] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234.

1. With respect to (ii), the applicant acknowledged that she returned to Iran four times as alleged but for compelling reasons: that is because her mother was ill when she returned in November 2012 (to [January] 2013); to support her parents who were going through a separation on the second visit from  [August] to [September] 2013; and because her mother was hospitalised and did not have anyone to look after her on the last two visits from [March] 2015 to [May] 2015, and from [February] 2016 to [March] 2016. At hearing the applicant said a friend told her that her first husband had migrated to [Country 1] prior to her first trip back to Iran in 2012. During that visit she went with her second husband and two daughters: however he spent his time with his first family there. Her two daughters accompanied her on the other three visits to Iran, as well as her sister who lives in Australia to help manage the care her mother required as well as [Ms B]’s care whilst there. The applicant said she has a brother who lives with her mother in Qom but he is disabled (from birth) and requires care himself. As mentioned, in the representative’s response to the NOICC he argues that the applicant was not concerned about returning to Iran these times because she was not an Iranian citizen, and the Iranian authorities only target Iranian citizens.

2. It is not in dispute that the applicant returned to Iran four times from November 2012 to March 2016 for periods ranging from two to three months each time. Such actions do raise a question about her claimed fear of persecution in Iran at the protection visa application stage. However these returns, considered separately and cumulatively, do not, in the Tribunal’s view, necessarily mean her claims at the protection visa application stage to have experienced problems in Iran, including discrimination as a refugee and serious harm from her first husband, and being fearful of persecution from her first husband, the authorities and others as a result, were untrue. The Tribunal accepts the applicant’s evidence that her first husband had left Iran by the time she returned there the first time in late 2012, which explains why she did not experience any problems from him on return (and why, possibly, she felt comfortable returning). Her other core claims at the protection visa application stage related to her status as an Iraqi refugee living long term in Iran and associated difficulties including with accessing resources and having limited opportunities, for example. She returned to Iran each time on an Australian-issued TDV with a valid Iranian visa, staying a maximum of three months each time, within the validity of her Iranian visa, evidenced by copies of her TDV (containing the visas) provided to the Department in response to the NOICC. The fact she was not of adverse interest to the authorities during these periods does not, in the Tribunal’s view, raise serious doubts about her protection claims made in 2010/2011.

3. Taking into account these considerations, the Tribunal is not satisfied as per the requirement in Zhao – that is, a real state of satisfaction reached on a consideration of the available material before it – that the applicant’s return to Iran on four occasions from 2012 to 2016 meant that she did not hold a well-founded fear of persecution – from her first husband and based on her lack of citizenship status in Iran (among other things) – at the time of her protection visa application. The Tribunal is not satisfied that the grounds for cancellation are made out in this instance if relying solely on the basis of the alleged non-compliance being her four returns to Iran, as set out in (ii), above.

4. The Tribunal has gone on to consider the other basis (i) for the alleged non-compliance: that is, information before the Department that the applicant was an Iranian citizen (at least from 2006). There is no indication in the NOICC on what basis the delegate reached that conclusion. The applicant’s marriage to her second husband in 2006 is noted, which infers – particularly when read with further information contained in the cancellation decision record – that the delegate considered that the applicant acquired Iranian citizenship on marriage, as per Article 976 of Iran’s nationality law. Reliance on such an inference raises a question about the validity of the NOICC: that is, whether the delegate had provided sufficient particulars in the NOICC in this regard, to enable the applicant to meaningfully respond. Nonetheless, the Tribunal notes the delegate lists another ground for the alleged non-compliance – the applicant’s return visits to Iran as discussed – and clearly explains the basis and why that led the delegate to conclude there was non-compliance. Accordingly the Tribunal is satisfied the NOICC is valid.

5. The applicant acknowledges she married her second husband in 2006 and that he was (and is) an Iranian citizen. The second named applicant confirmed he is an Iranian citizen at hearing. The Tribunal accepts that is the case.

6. Article 976(6) of The Civil Code of the Islamic Republic of Iran stipulates that ‘Every woman of foreign nationality who marries an Iranian husband’ is considered to be an Iranian subject under Book 2 ‘Concerning Nationality’.[4] Polygamous relationships are legal. Therefore the question that arises in this case is whether a marriage between a non-Iranian woman (who allegedly does not have a White Card or other identity documents or status in Iran) and an Iranian man has to be registered in order for the non-Iranian woman to be able to obtain Iranian citizenship. In the country information sources consulted by the Tribunal this answer was not clearly provided, with reports tending to focus on the circumstances necessary for the legality of a marriage, or the documents required to register a marriage (for example).[5]

   [4] Alavi and Associates n.d., The Civil Code of the Islamic Republic of Iran, UNHCR Refworld, p.93 <

   [5] ‘The Civil Code of the Islamic Republic of Iran’, Alavi and Associates, ‘Registration of marriage’, Islamic Republic of Iran; Marriage of an Iranian man to foreign woman, Iran: Embassy of the Islamic Republic of Iran.

7. Nonetheless, the requirement that a marriage be registered/officially recorded is often implied as a necessary step in order to obtain citizenship in various reports consulted. For example DFAT in their 2014 ‘Thematic Information Report – Faili Kurds in Iraq and Iran’ state that applications for Iranian citizenship on the basis of marriage to an Iranian national are made at the Office of Immigrants, BAFIA; there are multiple offices in Iran; and as attendance at a government office is required, officially recording marriages might be problematic (if the husband is avoiding Iranian authorities).[6] In 2006 the Research Directorate, Immigration and Refugee Board of Canada reported that ‘Canadian women married to Iranian nationals who register their marriage with the Iranian authorities (e.g. the Iranian Embassy in Ottawa) automatically become Iranian citizens and are deemed to be Iranian citizens according to Iranian law...’[7] Given these considerations and country information the Tribunal doubts the applicant was able to obtain Iranian citizenship without her marriage to her second husband – an Iranian national – being officially registered.

   [6] ‘DFAT Thematic Information Report – Faili Kurds in Iraq and Iran’, Department of Foreign Affairs and Trade, 03 December 2014.

   [7] Exit and entry procedures at airports and land borders, particularly at Mehrabad International Airport; identity documents such as birth certificates, and marriage and divorce certificates; incidences of bribery of Iranian border officials to facilitate departure by individuals with fraudulent travel documents or outstanding financial, military or legal obligations, or who are sought by the government for political reasons; the punishment for border officers caught taking such bribes (2004 - February 2006), 3 April 2006, Research Directorate, Immigration and Refugee Board of Canada

8. Even if the applicant was able to obtain Iranian citizenship without her marriage to her second husband – an Iranian national – being officially registered for her to get Iranian citizenship, for the following reasons the Tribunal is not satisfied – to the requisite level required in cancellation cases – that the applicant is an Iranian citizen.

9. The applicant has consistently argued that she is an Iraqi citizen. Before the Tribunal (and in response to the NOICC) she argues that she was never able to obtain Iranian citizenship due to her husband’s failure to register their marriage, because he was afraid that doing so would alert his first wife (and their children) to their marriage, as discussed. The applicant’s oral evidence in this respect was consistent with the second named applicant’s oral evidence to the Tribunal and reflected what was contained in her then representative’s detailed written response to the NOICC (and the current representative’s written submission to the Tribunal). She has provided a copy of her and some of her family members’[8] Iraqi ID cards, and her second husband’s shenasnameh which records his first family members, not the applicant or her eldest daughter, indicating that their marriage was not registered. Additionally, the Tribunal agrees with the submission that the fact that the applicant returned to Iran four times on an Australian TDV containing Iranian visas (and having left Iran initially on a genuinely issued Iraqi passport, which the Tribunal accepts), indicates that the applicant was not the holder of an Iranian passport at any of these times.

   [8] That is her father, mother and brother.

10. The delegate noted in her decision record (to cancel the visa) that because the applicant was able to re-enter Iran following visits to [Country 1] and Iraq in 2006 she must have been an Iranian citizen at the time, given country information indicates that the Iranian government does not allow re-entry by registered refugees if they visit a third country.[9] On review the representative disputed this finding, noting that the applicant held an Iraqi passport at the time – as shown in her religious marriage certificate dated 2006 – which she used to travel to [Country 1] in 2006 and return to Iran, not an Iranian passport. As the Tribunal accepts the applicant is an Iraqi citizen, and her evidence about travelling on an Iraqi passport at this time (and to leave Iran in 2010) the Tribunal accepts his submission in this respect and does not draw an adverse inference from the fact that she was able to re-enter Iran from travelling abroad on two occasions in 2006.

    [9] DFAT Country Information Report Iran, 21 April 2016.

11. The Tribunal also notes, and gives some weight to, the oral evidence of Ms [A], a family friend of the applicant’s from Qom, Iran now residing in Australia. She confirmed that the applicant was an Iraqi refugee in Iran who – to her knowledge – had never acquired Iranian citizenship, even after her marriage to her second husband in 2006.

12. For these reasons, the Tribunal accepts that the applicant is an Iraqi citizen, not an Iranian citizen as concluded by the delegate. It accepts that her marriage to her second husband (an Iranian citizen) in 2006 was never registered, and therefore she has not obtained Iranian citizenship. The Tribunal is not satisfied that the grounds for cancellation in this respect have been made out.

13. The Tribunal notes the NOICC records information the applicant provided in respect of her POD interview in April 2011, as summarised earlier (paragraph 12). This includes the following claims made by the applicant:

    a.After [a number of] weeks residing in Iraq in 2006 she and her husband returned illegally to reside in Iran.

    b.They contacted a people smuggler in around May 2010 who organised her husband’s fake passport.

    c.In Iran her husband would have to work illegally in order for them to survive.

14. When raised at hearing the applicant was vague about whether or not her second husband had disclosed his Iranian citizenship at the time of the protection visa application, noting that she was preoccupied with [Ms B], who was young with very high needs. The second named applicant acknowledged that he failed to let the Department know that he was an Iranian citizen when he first arrived in Australia, on advice from other asylum seekers at the time. However sometime later he informed the Department. He did not specify when exactly, but the Tribunal notes (as included in the response to the NOICC and acknowledged by the second named applicant at hearing) that he applied to sponsor his first wife through a Partner visa application, made in June 2013 in which he indicated he was an Iranian citizen.

15. In addition to acknowledging the second named applicant is an Iranian citizen (and was at the time of the applicant’s protection visa application), the applicant told the Tribunal that he worked legally in [Iran], and supported her and his first family from this income. Further, the second named applicant told the Tribunal that he did not re-enter Iran illegally from Iraq in 2006, and he held an Iranian passport at the time. On this basis, the Tribunal is satisfied that the applicant provided incorrect information at the POD interview in April 2011 in the following respects (as set out in the NOICC):

    ·That her (second) husband returned to Iran from Iraq in 2006 but did so on his Iranian passport, not illegally;

    ·That he left Iran (in 2010) on the same Iranian passport, not a ‘fake’ passport organised by the people smuggler; and

    ·As an Iranian citizen he would not have to work illegally in order for them to survive in Iran.

16. At hearing when asked why she indicated at that time that her (second) husband would have to work illegally in Iran (for example) the applicant said she does not know why and said they were not her words.

17. At hearing the second named applicant claimed he had to pay money to obtain his Iranian passport in Iran in the past. However it is unclear why given he is (and was at the time) an Iranian citizen and there is no indication the Iranian authorities had concerns with the validity of his citizenship. When asked why at hearing the second named applicant replied that he was afraid for his children’s future, if he applied for a passport and any problems occurred; that the law changes all the time; and he did not know if that would affect their future. However he did not adequately explain, in the Tribunal’s view, why he had to allegedly bribe the authorities to obtain an Iranian passport given he had a shenasnameh (which contains a national identity number, among other things). For these reasons the Tribunal does not accept that the second named applicant had to bribe someone to obtain his Iranian passport. He may have paid money to do so, but the Tribunal is not satisfied on the evidence before it that this was anything more than the requisite fees and/or related administration costs.

18. Accordingly the Tribunal is satisfied the applicant provided incorrect information in relation to her protection visa application in these respects, as also set out in the NOICC. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice regarding her claim that her husband returned illegally to Iran from Iraq in 2006; a people smuggler organised a fake passport for her husband in 2010; and that her husband would have to work illegally in Iran.

    Should the visa be cancelled?

19. 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).

20. 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, as follows.

21. The correct information: is that the applicant’s second husband returned legally to Iran from Iraq in 2006; he obtained a genuine Iranian passport, not a fake one, in 2010 (or possibly before); and that he would not have to work illegally in Iran, given he is an Iranian citizen (and has worked legally there in the past).

22. The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).

23. 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: although the applicant’s claims inferring her second husband was not an Iranian citizen and related problems and fears (for example, having to work illegally in Iran) at the protection visa application stage appear to have intended to strengthen her claims by painting a picture of the applicant and her second husband being particularly vulnerable (among other things) in Iran as refugees without any legal status, the IR did not accept their claims in this respect. As set out in the IPA statement of reasons, dated 30 March 2011,[10] the IR did not accept the second named applicant was not a citizen of Iran or that he faced discrimination in Iran for those reasons, given a number of credibility concerns with his evidence in this regard. The IR found the applicant faced a well-founded fear of persecution in Iran from her former husband there and the second named applicant was granted protection based on his membership of her family unit: the decision to grant the visa was not based, wholly or in part, on the incorrect information that her husband returned illegally to Iran from Iraq in 2006; a people smuggler organised a fake passport for her husband in 2010; and that her husband would have to work illegally in Iran.

    [10] Contained on Departmental file [deleted]

24. The Tribunal has given this consideration significant weight towards not cancelling the visa.

25. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant at her POD interview on 18 April 2011. In response to the NOICC the applicant claims (via her then representative) that she did not provide incorrect information at the visa application stage in relation to her citizenship status and more broadly her claimed problems in Iran, and future fears. At hearing the applicant said she did not recall stating that her husband would have to work illegally in Iran, noting that they were not her words (she did not elaborate). However reading the information provided at the POD interview as set out in the NOICC as a whole it is clear that the applicant indicated that both her and her husband did not have Iranian citizenship given her multiple claims in this regard as set out earlier.

26. The present circumstances of the visa holder: The applicant has been resident in Australia for over nine years. She lives with her two daughters aged ­– [ages] – and her second husband in a house they rent in [Suburb 1]. She said although they separated in around 2016, she and her second husband have continued living together to care for [Ms B]. The applicant used to [work] but quit around 18 months ago because of [Ms B]’s increasing demands, including more recently her failure to sleep at night.

27. The second named applicant does not work. They both receive a carer’s pension and funding through NDIS which covers the costs for a carer four days a week and occupational and other therapists on occasion. [Ms B] is enrolled in a special school in [Suburb 1], and before that attended a special school in [Suburb 2]. A letter from the [School] (dated 27 February 2015) was provided in response to the NOICC who notes that [Ms B] requires full-time care to ensure her safety and health, including assistance to walk, eat, bathe, dress and with toileting.

1. Medical evidence has been provided to the Department[11] (in response to the NOICC) and the Tribunal[12] detailing [Ms B]’s diagnoses, past medical history and current and future treatment needs and concerns. For reasons explored further below (in relation to government policy about whether the visa cancellation would result in Australia’s obligations under relevant international agreements being breached), the Tribunal has given [Ms B]’s situation (and the related impact on her family, including the applicant) significant weight not to cancel the visa.

   [11] Letters from [a doctor], [Suburb 2] Medical Centre, dated 12 May 2013, 15 August 2014, and 26 July 2016; and a copy of a letter from [a] Hospital to [Ms B]’s doctor, dated 27 September 2015.

   [12] A letter from [a] Paediatrician, [dated] 5 February 2020.

2. [Ms C], the applicant’s youngest daughter, is [at] a local primary school and is progressing well, engaged in school and other activities, according to the applicant. The Tribunal accepts that is the case.

3. The applicant’s brother and sister both live in Australia, having left Iran around a month before the applicant via a similar route, and claiming protection (successfully) on the basis of their Iraqi refugee status in Iran. Her sister has three children and is expecting her fourth. Her brother has two children and his wife is expecting their third. The applicant said she and her daughters are very close to her siblings and their children in Australia. The Tribunal accepts that is the case.

4. The Tribunal notes its concern as to whether the applicant and her second husband are separated as claimed, given inconsistencies in their evidence to the Department and Tribunal in this regard. For example she told the Tribunal at hearing they separated in 2016, whilst the second named applicant said they separated in 2014. In their response to the NOICC the then representative said they separated in 2013. Furthermore, in his application for a Partner visa for his first wife – a copy of which is contained on Departmental files in respect of the visa cancellation and initial protection visa application – the second named applicant stated in the application form that their relationship ended in 2011. The fact that the second named applicant lodged that application in mid-2013 indicates that he and the applicant had separated by that time, or at the very least the second named applicant was presenting that as the case to the Department in June 2013. It appears the second named applicant has shifted his evidence about the status of his marriages to suit the matter at hand with the Department, which is a concern.

5. Nonetheless, having discussed this and other relevant matters with the applicant (and the second named applicant) at length at hearing the Tribunal accepts they have separated. It is of the view that the inconsistencies in their evidence in this regard may be attributable to the fact that they have continued living together and there may not have been an exact date when their relationship finished. It became clear at hearing that the ongoing and extraordinary demands required to care for [Ms B] each day have strained their marriage, which is unsurprising.

6. At hearing when asked his plans if they return to Iran, the second named applicant did not answer, refusing to consider it. However he had indicated earlier that if his first wife’s (and children’s) visa application to Australia was successful, he planned to live with them and continue to help support the applicant and their daughters, but would do so in secret. Given his evidence in this regard, and that they have separated, the Tribunal is of the view that if the applicants return to Iran the second named applicant will return to live with his first family and will continue to keep his second family secret. The Tribunal considers it likely the applicant and her daughters would live alone, without the day to day support of the second named applicant in Iran. This would be a major disruption for both of his daughters, but particularly [Ms B] whom he helps care for, and also the applicant who would be largely alone in managing [Ms B]’s care. The Tribunal doubts their co-parenting arrangement in place in Australia would continue in Iran, to the detriment of their daughters.

7. The Tribunal gives these considerations significant weight towards not cancelling the visa.

8. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.

9. In response to the NOICC the applicant’s then representative stated that the applicant did not provide incorrect information as contended in the notice. For reasons given above the Tribunal is not satisfied (to the requisite level, despite some concerns) that the applicant provided incorrect information in respect of her citizenship status, related experiences, and fears of persecution at the visa application stage as contended in the NOICC. However it found the applicant provided incorrect information in respect of her claims at the time that her husband returned illegally to Iran from Iraq in 2006; a people smuggler organised a fake passport for her husband; and that her husband would have to work illegally in Iran.

10. Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.

11. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in July 2012 and almost eight years have passed since then.

12. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.

13. Any contribution made by the holder to the community: the applicant claims to volunteer at a [workplace] in [Suburb 1], [doing certain tasks] according to Islamic procedures and requirements, along with the second named applicant. A letter from the Chairman, [of an organisation]. dated 5 February 2020 was provided to the Tribunal who mentions this activity undertaken by the applicant, in addition to counselling of individuals and their families. The Tribunal notes the letter is unsigned and contains a spelling mistake in the title of the organisation (contained as a header on the letter), which casts some doubt as to its authenticity. Nonetheless, the Tribunal is willing to accept the applicant volunteers at a [workplace] in Australia as claimed and may counsel relatives and families in this regard.

14. The Tribunal notes the applicant’s volunteer work in this respect is also mentioned in a letter provided from [another organisation][13] (the contents of which mainly refer to the second named applicant) and a letter provided by a social [worker/counsellor].[14] According to the social worker/counsellor – who has been supporting the applicant since 2018 – in addition to [volunteering], the applicant conducts community events to bring people together and raise money for orphaned children in Iraq. The applicant did not mention this at hearing, and instead gave the impression that she has very little free time given the demands of [Ms B] (including having to give up work around 18 months ago). Given these concerns the Tribunal is of the view that the extent of the applicant’s community involvement may have been exaggerated. Nonetheless, it is willing to accept that she undertakes some volunteer work at a [workplace] and may help out with community activities at times, but considers it limited. It gives this some limited weight in favour of not cancelling the visa.

    [13] Dated 4 February 2020

    [14] Dated 4 February 2020

    Other factors: Departmental guidelines

15. While these factors in r.2.41 of the Regulations 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 government policy,[15] as follows.

    [15] PAM3 ‘General visa cancellation powers’.

16. Whether there would be consequential cancellations under s.140: The applicant’s second husband and two daughters’ visas would be cancelled as a consequence of the cancellation of the applicant’s visa under s.140 of the Act because they hold visas on the basis of being members of the family unit of the applicant. For reasons given below, the Tribunal considers a real consequence of cancelling the visa in [Ms B]’s case would be a significant disruption to her care, and therefore likely to cause substantial hardship to herself as well as her parents and sister.

17. Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[16] Relevant to this case, Departmental policy states that pursuant to those obligations, decision makers should ‘treat the best interests of any children under 18 years old who are in Australia or within Australia’s jurisdiction as a primary consideration’[17] (among other things).

    [16] Australia’s non-refoulement obligations arise primarily from the Refugees Convention. However, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child also generate explicit or implicit non-refoulement obligations: see Policy – Migration Act – Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – Australia’s international obligations

    [17] Policy – Migration Act – Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – Australia’s international obligations (re-issue date 1/7/2017).

    Best interests of the applicant’s children in Australia

18. As a signatory to the Convention of the Rights of the Child (CROC) Australia has certain obligations, including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CROC also includes integrated but wider considerations including education[18] and health and disability considerations[19] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[20]

    [18] Article 28

    [19] Articles 23 and 24

    [20] Article 22

19. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship.[21] Policy also indicates that the child concerned ‘may be a non-citizen or an Australian citizen child of a non-citizen parent’,[22] which applies to [Ms B] and [Ms C].

    [21] Departmental Policy Guidelines, Guiding Principles – Treatment of Children 

    [22] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at 23.

20. In response to the NOICC the applicant’s then representative submits that the applicant’s daughters, who are not Iranian citizens and ineligible for such because their parents’ marriage was not registered in Iran, would be denied basic human rights in Iran, including access to medical treatment and support, which is critical in particular in [Ms B]’s case. Nor would she be able to attend special schools tailored to her specific needs, as she does in Australia.

21. These sentiments were echoed in the current representative’s written and oral submissions to the Tribunal. He notes that [Ms B], born [in] Iran has been diagnosed with a [medical condition].  He refers to medical evidence provided including a recent report from [a] Hospital which identifies her numerous diagnoses, the severity and complexity of her disabilities; associated behavioural problems; and the fact that the condition is lifelong and permanent to argue that [Ms B]’s care needs are very high and continuity of care in Australia is vitally important for her. The representative adds that [Ms B] has only known Australia, and her carers have intimate knowledge of her over many years enabling them to provide optimum care. This has also allowed them to anticipate and deal with behavioural challenges and enabled [Ms B] to feel safe and comfortable in clinical settings. The representative submits that it is in the best interests of [Ms B] to remain in Australia where she can access the continuity of care required for the rest of her life and that removing her from her caregivers would negatively impact her development, attachment, behaviour and any future potential she may have to engage in new environments.

22. [Ms B], the applicant’s eldest daughter was born in Iran and came to Australia with the applicant and her husband when she was [age] year old. If the applicant’s visa is cancelled, then [Ms B], [Ms C] and their father’s visa will be cancelled as a consequence, under s.140 of the Act. The applicant’s daughter [Ms C] was born in [Australia]. However she is not an Australian citizen (as erroneously submitted in the representative’s written submission provided to the Tribunal) because at the time she was born her parents did not hold permanent visas: their protection visas were granted on 3 July 2012.

23. As indicated, the Tribunal accepts the applicant’s parents are separated and it is likely on return to Iran the second named applicant will return to his first family.

24. At hearing it became clear the paramount consideration in the applicant’s mind relates to her daughters: specifically to continue the high level of care [Ms B] requires and for significantly more opportunities and freedom for her younger daughter, [Ms C]. The applicant said such opportunities and freedom were never available to her as an Iraqi refugee in Iran (and also as a girl/woman, noting she married her first husband at [age]). She said [Ms C] only knows Australia and whilst she speaks some Farsi, and Arabic (and English) she is starting to lose her competency in this regard.

25. [Ms B] currently attends a special school in [Suburb 1] and before that she attended a special school in [Suburb 2]. A letter from the assistant principal from the [Suburb 2] school has been provided, as noted earlier, which highlights [Ms B]’s significant care needs at that time (February 2015). Although no contemporaneous information has been provided about [Ms B]’s current circumstances at school, the Tribunal doubts there has been much improvement, based on the applicant’s oral evidence and the medical evidence provided. The applicant told the Tribunal that recently [Ms B] has not been attending school given she is awake most nights and then sleeps for some of the time during the day. The applicant said her daughter requires substantial care each day: she cannot eat, go to the toilet or shower and has no knowledge of risks so has to be constantly supervised. She is non-verbal, although often screams and cries, sometimes for hours. A carer assists four days a week for four hours a day.

26. The applicant said in addition to the fact that her brain has not developed as it should have, [Ms B] had a brain tumour, which was surgically removed in 2015 but a new one has grown in another part of her brain (a consequence of [her medical condition]). She is scheduled to have an MRI later in February (2020) to determine how best to deal with the new tumour. This was confirmed by [a] Paediatrician [in] a report dated 5 February 2020 in which the doctor states that [Ms B] has and will require further surgery to manage medical problems associated with her[medical condition].

27. Based on the medical evidence provided as well as the applicant’s and the second named applicant’s oral evidence, the Tribunal accepts their claims about [Ms B]’s diagnosis, treatment and ongoing high-level needs. The medical evidence provided in response to the NOICC indicates that she has been diagnosed with [various medical conditions]. [The doctor] in her recent report confirmed these diagnoses, adding that [Ms B] has [a specified medical condition] and significant behavioural problems. Key points from [the doctor]’s letter – in which she described [Ms B] living with ‘a complex neurodevelopmental disability’ – are as follows:

    ·She has a profound physical disability that is lifelong and permanent.

    ·Her care needs are intensive, extensive and very high. She requires care 24 hours a day and full carer support for every activity of daily living including mobility, feeding, communication, personal care and to ensure her safety.

    ·Her behavioural problems are numerous, and significant, including aggression and self-stimulatory behaviours which have caused extensive self-injury.

28. Based on this evidence the Tribunal accepts the applicant’s daughter lives with serious disabilities and as a result has extremely high care needs to function day by day. Even with substantial support in Australia she has exhibited significant and challenging behavioural problems (among other things) and requires constant care and supervision. She (and her parents) would face enormous challenges returning to Iran – a country [Ms B] left at [age] – where her care would be disrupted and she would be unlikely to obtain care at commensurate levels to help manage her daily needs. Particularly if her father refuses to register his marriage to her mother (and his children’s existence on his shenasnameh), to enable her to become an Iranian national with related education, health care and other benefits.

29. The Tribunal also notes country information that indicates that persons suffering from significant intellectual and physical health issues, including children, are subject to forms of stigmatisation and discrimination in Iran.[23] A November 2017 Centre for Human Rights in Iran report stated that ‘[p]eople with disabilities in Iran have long been subjected to social stigma and governmental indifference to their needs’.[24] Childhood Education International reports that ‘children with special needs are negatively stigmatized in Iran and are often regarded as ‘retarded’[25]. Regarding the treatment of disabled children more broadly, a joint report published by the HRW and CHRI in June 2018 states:

    Stigma is especially strong in rural areas, according to those interviewed, particularly for people with intellectual or psychosocial disabilities and girls with disabilities. Some families hide family members with disabilities at home and prohibit them from participating in social activities or education[26].

    [23]  'Redefining Disability in Iran through Entertainment Education', Hallajarani, F, OCAD University, 2 July 2014, pp.3-4,  'Living in the shadow of shame and stigma: Lived experience of mothers with deaf children', Ebrahimi, E, Mohammadi, E, Shamshiri, M, Vehviläinen-Julkunen, K and Mohammadi, M A, International Journal of Medical Research & Health Sciences, vol.5, iss.11, 2016, pp.5-6; 'Stigma in Mothers of Deaf Children', Ebrahimi, H, Mohammadi, E, Mohammadi, M A, Pirzadeh, A, Mahmoudi, H and Ansari, I, Iranian Journal of Otorhinolaryngology, vol.27, no.2, March 2015, pp.115-116; 'Iran’s LGBTQ Community and the Digital Tools for Change', Schmidt, N, IranWire, 18 May 2018; 'Iran's Parliament Should Pass Pending Disability Rights Bill', Centre for Human Rights in Iran, 30 November 2017, 'Iran: Giving disabled people a chance to lead a normal life', International Committee for the Red Cross (ICRC), 2 November 2015

    [24]  'Iran's Parliament Should Pass Pending Disability Rights Bill', Centre for Human Rights in Iran, 30 November 2017

    [25] ‘Educating Children With Disabilities in Iran’, Childhood Education International, 9 July 2018

    [26] I am Equally Human: Discrimination and Lack of Accessibility for People with Disabilities in Iran’, Human Rights Watch and Center for Human Rights in Iran, June 2018, p.16

1. In its 2020 annual report on human rights in Iran, HRW similarly noted:

   People with disabilities face stigma, discrimination, and lack of accessibility when accessing social services, healthcare, and public transportation and may receive medical treatment, including electroshock therapy, without their informed consent. Local and national authorities have taken insufficient steps to address the situation.[27]

   [27] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.291

2. Whilst there are special schools for disabled children in Iran, reports indicate that large number of children with disabilities do not attend school in Iran, with many children with intellectual disabilities assessed as being ‘ineducable’ and excluded from the formal education system in Iran[28].  Sources also noted concerns with the quality of education provided at special schools in Iran[29].

   [28] ‘Just like other kids’: Lack of Access to Inclusive Quality Education for Children with Disabilities in Iran’, Human Rights Watch & Center for Human Rights in Iran, 2 October 2019, pp10-20

   [29] ‘Just like other kids’: Lack of Access to Inclusive Quality Education for Children with Disabilities in Iran’, Human Rights Watch & Center for Human Rights in Iran, 2 October 2019, p.41

3. Taking into account these considerations, the Tribunal finds it would be in the best interests of [Ms B] – a young girl who suffers from a severe disability and associated medical problems, that is permanent and lifelong – to remain in Australia to continue with the care and treatment she currently receives, and with the support of her parents and other extended family here, to minimise any disruptions and further deterioration in her neurodevelopment and behaviour.

4. The applicant’s second daughter is currently in grade [grade] at a mainstream school and according to her mother is progressing well. Although not an Australian citizen, she was born in Australia and has only lived in Australia. She is able to speak some Farsi and Arabic but according to her mother is starting to lose her aptitude in this respect, as English dominates. The Tribunal accepts spending her entire life in Australia, she is well integrated into the Australian community and she would face a number of challenges resettling in Iran, particularly if her father refuses to register his marriage to her mother (and his children’s existence on his shenasnameh), to enable her to become an Iranian national with related education, health care and other benefits. She would have some extended family support there – that is, her grandparents and an uncle – but the bulk of her extended family is in Australia, including numerous cousins whom she is close to. The Tribunal accepts it would be disruptive to her education and is concerned her educational opportunities in Iran may be limited.

5. Taking into account these considerations the Tribunal finds that it is in the best interests of the applicant’s daughters – including one who is severely disabled – to remain living in Australia with their parents, and in [Ms B]’s case to continue with her treatment and care here.

6. Accordingly the Tribunal finds Australia would breach relevant articles in CROC (including disability considerations) if the visa was cancelled and the applicant’s children returned to Iran. It has given this consideration very significant weight towards not cancelling the visa. Therefore, even if the Tribunal were to find that the applicant’s removal would not be in breach of other international agreements such as the Refugees Convention and the Convention Against Torture, the fact that there would be a breach of CROC leads the Tribunal to give this consideration weight towards not cancelling the visa.

7. Mandatory legal consequences to a cancellation decision: If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal from Australia as soon as practicable, as required by s.198 of the Act. There are provisions in the Act which would prevent her from making a valid application for any visa without the Minister personally intervening. The Tribunal has given some limited weight to this consideration in the applicant’s favour.

8. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): if the applicant’s visa is cancelled the Tribunal considers the degree of hardship that is likely to be caused to her and her daughters will be significant, primarily due to the disruption and likely reduction of [Ms B]’s care. Whilst this would impact all family members, the potential impact on the applicant, who would be returning to Iran as a separated mother with limited extended family support there, would be great. The Tribunal notes in this regard [the doctor]’s repeated emphasis in her report that [Ms B]’s disability is profound, and the high level of physical care and supervision is ‘well beyond routine care and parenting’, causing her to note that her parents are at very high risk of carer burn-out. If this occurs in Iran as a result of the major disruption to [Ms B]’s care, the impact on [Ms B] and [Ms C] could be devastating.

9. Furthermore, if the applicant’s visa is cancelled her extended family in Australia whom she (and her children) are close to will be adversely affected. Specifically her sister and her sister’s three children (soon to be four) and her brother and his two (soon to be three) children. The Tribunal is satisfied that a significant degree of hardship may be caused to the applicant and in particular her three young children by separating from these family members in Australia, as well as to her relatives in Australia themselves.

10. The Tribunal also notes – as mentioned earlier – that the applicant would be returning to Iran as a single/separated woman. Country information indicates that there is a significant degree of discrimination and related hardship for women and girls in Iran and that there are severe restrictions placed upon them by law and practice. As noted by DFAT in their most recent country information report on Iran:

    Most Iranian women face persistent societal discrimination and the threat of gender-based violence. Legislation, long-standing traditional values and gender roles continue to restrict the participation of women in the workforce and community.[30]

    [30] DFAT Country Information Report Iran, 7 June 2018 at 3.89.

    EXERCISE OF DISCRETION

11. In exercising its discretion, the Tribunal gives weight to the fact that it appears the applicant may have intentionally misled the Department in relation to her (then) husband’s citizenship status, possibly to enhance her protection claims, which is clearly a concern. However as the IR did not accept the applicant’s then husband was not an Iranian citizen, even if the correct information had been known, the Tribunal is satisfied that the applicant would still have been found to engage Australia’s protection obligations. As such, she did not benefit as a result of providing this incorrect information.

12. Furthermore, having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular the Tribunal gives weight to its finding that it is in the best interests of the applicant’s children to remain living in Australia with their parents. In particular the applicant’s eldest daughter who is severely disabled and has high-level care needs that are permanent and lifelong. The Tribunal is obliged to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the CROC.

13. Furthermore, the applicant has consistently claimed that life was harsh in Iran and she had limited opportunities and support as a woman and Iraqi refugee there, which would likely be the case on return. The applicant has had limited schooling and never worked in Iran and would be returning as a single/separated woman with two young girls, one of whom is highly dependent for the most basic tasks.

14. The Tribunal is satisfied that given these considerations life would be extremely difficult for the applicant and her daughters. Their only other family in Iran is the applicant’s mother who is old and requires care and her disabled brother.

    CONCLUSION

15. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

100.   The Tribunal has no jurisdiction with respect to the other applicants.

Nicole Burns
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.