1713008 (Refugee)

1713008 (Refugee) [2019] AATA 6728 (24 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713008
COUNTRY OF REFERENCE:                   Stateless
MEMBER:John Cipolla
DATE:24 December 2019
PLACE OF DECISION:  Melbourne
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 24 December 2019 at 2:26pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground of cancellation – incorrect information in the visa application – nationality – Iranian citizen – consideration of discretion – stateless claim central to grant of visa – time elapsed since the non-compliance – present circumstance of visa holder – marital relationship with an Australian citizen – commitment to commence a family of their own – 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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant annexed a copy of the Departmental decision record to the review application lodged with the Tribunal.
Recourse to the decision record indicates that the applicant arrived in Australia and was transported to Christmas Island [in] October 2009. On 27 November 2009 the applicant underwent a Refugee Status Assessment to determine whether he was owed protection obligations by Australia. The Refugee Status Assessment Officer found the applicant was a refugee and as a consequence the applicant was invited to submit an application for a protection visa application. On 21 January 2010 the applicant submitted an application for a Protection (Class XA) visa. On 27 January 2010, some 6 days later, the applicant was granted protection at primary stage on the basis of being a stateless Faili Kurd.
In a Notice of Intention to Consider Cancellation (NOICC) issued under s.109 of the Act dated 23 September 2015, a delegate of the Minister informed the applicant that she considered that the applicant had not complied with s.101(b) of the Act in that he had provided incorrect information in his visa application as to his statelessness, citizenship and country of nationality and his fear of persecution in Iran as a stateless Faili Kurd.
On 23 May 2017 a delegate of the Minister cancelled the applicant’s visa and the applicant applied to this Tribunal for a review of the decision.
ISSUES IN REVIEW
The issues in the review are whether there was non-compliance in the way described in the NOICC sent to the applicant, and if so, whether the visa should be cancelled. A summary of the relevant law is set out in Attachment A.
REVIEW HEARING
The applicant appeared before the Tribunal on 9 December 2019 to give evidence. The Tribunal also took evidence from the applicant’s Australian citizen wife [Ms A]. The applicant’s representative attended the review hearing.
The applicant and the Tribunal were assisted by an accredited Persian interpreter.
At the outset of the review the Tribunal went into extensive details about the respective issues in the review and the prospective outcomes of the review process. The Tribunal advised the applicant that it had recourse to the applicant’s protection visa file, the Departmental cancellation file and had considered evidence provided at review stage.
The Tribunal discussed with the applicant the importance of providing truthful answers to the questions asked at hearing. The Tribunal noted that the applicant had provided incorrect information to the Department in his protection visa application stating that he was a stateless Faili Kurd when he was in fact an Iranian citizen. Further to this that the applicant had given a number of different dates of birth in his dealings with the Department and that he had changed his name in Australia. The Tribunal noted that this had all impacted on the applicants overall credibility. The applicant advised he understood the need to be truthful in his answers to the Tribunal at the review hearing and undertook to do so.
At the outset of the review hearing the applicant conceded that he had provided incorrect information to the Department in support of his protection visa application. The applicant advised the Tribunal that he was a Kurd but that he held Iranian citizenship and possessed an Iranian passport and identity documents.
The applicant provided the Tribunal with his personal details. The applicant advised that he was born in Tehran Iran.
The Tribunal asked the applicant why he had given so many variances in his date of birth. The applicant stated that these differences stemmed from problems that he had with various interpreters that assisted him in completing applications to the Department and problems converting from the Persian calendar to the Julian calendar.
The Tribunal asked the applicant whether his parents were still alive and he advised that they were and living in Tehran Iran.
The Tribunal asked the applicant about his siblings. The applicant advised that he had [number of siblings residing in number of different countries]. The Tribunal noted that based on movement records obtained prior to hearing that it appeared that the applicant’s sister [Sister B] was overseas. The applicant stated that he thought that his sister may have travelled to Iran but he was not currently in communication with her.
The Tribunal noted that the applicant’s claims to be a stateless Faili Kurd had been impugned by evidence collated by the Department indicating that the applicant had communicated with his sister [Sister B] on [social media], and it was through this social media contact that it became apparent that the applicant was an Iranian citizen. The applicant was invited to comment on this. The applicant stated that he communicated with his sister on [social media] in the past but had not communicated with her for about three months. The applicant stated that his sister and brother-in-law lived in Sydney and that it was approximately two years since he had seen his sister [Sister B]. The applicant conceded that through this communication the Department determined that he was not a stateless Faili Kurd and was in fact an Iranian citizen.
The Tribunal asked the applicant what year he sister came to Australia and the applicant advised in 2013. The applicant stated that his sister and her husband travelled to [Country 1] and applied for protection through the United Nations and were found to be owed protection obligations. He advised that he sister [Sister B] was now an Australian citizen. The Tribunal asked the applicant why his sister would risk travelling back to Iran, a country that she had claimed protection from. The applicant stated that their mother was very unwell with [a medical condition] and that is why he sister had travelled to Iran to visit her. The Tribunal asked the applicant whether his sister [Sister B] had any children and he advised she had one child, aged [age] years.
The Tribunal asked the applicant about his sister in [Country 2] and whether she had obtained residence in that country as a result of a protection application. The applicant stated that he was aware of the fact that his sister had been given refugee protection in [Country 2] but did not know the grounds pertaining to her claims for protection.
The Tribunal asked the applicant about his wife and when she came to Australia for the first time. The applicant stated that his wife came to Australia in 2011 as the holder of a Tourist visa. She then made an application for protection a Protection visa on the basis of her conversion to Christianity and was found by the Department to be owed protection obligations at primary stage. The Tribunal asked the applicant what type of Christianity his wife adhered to for example Catholicism or Evangelical Christian. The applicant stated that he was not sure. The Tribunal asked the applicant whether his wife attended a church on a regular basis. The applicant stated that his wife did not attend church but prayed with friends at home and regularly read the Bible. The applicant added that his wife went to church in the past.
The Tribunal noted that the evidence before it indicated that the applicant’s wife had a number of health problems and asked the applicant to provide details about these health problems. The applicant stated that his wife suffered with a significant [medical problem]. That she had [other medical] problems as a result of a [condition]. He further advised that his wife had [Body Part 1] problems and had been hospitalised with regard to these problems. He advised that his wife also had problems with her [Body Part 2].
The Tribunal asked the applicant when his wife was born and he advised on [date].
The Tribunal asked the applicant what he did for work in Australia. The applicant stated that he worked for a [business] in Australia on a full-time basis.
The Tribunal asked the applicant about his own health problems. The applicant stated that at the time of arriving in Australia he underwent a surgical procedure for a [medical] problem. The Tribunal noted that the evidence before it indicated the applicant also had been treated for deep lacerations to his [Body Part 3]. The applicant stated that this occurred as a result of a workplace accident where he fell, and that the lacerations required [number of] stitches and he lost a lot of blood as a consequence of this injury. The applicant stated because of this accident he had a break from work but received no compensation.
The Tribunal asked the applicant whether he had purchased real estate in Australia and he advised that he had not. The Tribunal asked the applicant whether there were any reasons for this and the applicant stated that both he and his wife were desperate to have a child and had expended between $40,000 and $50,000 on an IVF program. The applicant advised the Tribunal that he and his wife were still involved in an IVF program and had been advised by medical specialists that there was still a sound opportunity for his wife to conceive. The applicant advised the Tribunal that his wife had fallen pregnant in 2017 but she miscarried and had significant bleeding which required major surgery at [a named] Hospital in Melbourne in 2017 to stem the internal bleeding. He advised this had been life threatening. The applicant stated that his wife lost so much blood that she had to undergo a full blood transfusion.
The Tribunal asked the applicant whether his wife worked and he advised that she worked in [a business] in [Suburb 1].
The applicant stated that he and his wife lived in rented accommodation and had lived in two properties during the time they had been together. The first property was in [Suburb 2] and the second in [Suburb 3].
The applicant advised that the relationship with his wife commenced in 2014 after they met at a party. The Tribunal asked the applicant whether his wife had been married before and he advised that she had been approximately [number] years ago, when she was married at a very young age of approximately [age] and that the marriage came to an end a number of years ago. The Tribunal asked the applicant whether his wife’s ex-husband resided in Australia and he advised that to his knowledge he resided in [Country 3]. The Tribunal asked the applicant whether there were any children of his wife’s first marital relationship and he advised a son who is [age] years old, his name was [Mr C] and he had recently migrated to Australia on a [specified] visa which was granted [in] August 2019 and was residing with him and his wife. The applicant advised that his wife was very young when her son was born and was around [age].
The Tribunal asked the applicant whether he had any problems with the law in Australia and he advised that he had not. The Tribunal asked the applicant whether he had any driving offences in Australia and the applicant advised just one camera fine for slightly exceeding the speed limit.
The Tribunal asked the applicant whether he undertook any voluntary work in the community and he advised that he did not.
The Tribunal asked the applicant whether he and his wife shared a general practitioner. The applicant advised that he and his wife attended the surgery of [Doctor D] who is a General Practitioner located in [Suburb 2] and that he was of Persian ethnicity.
The Tribunal asked the applicant whether he and his wife had a circle of friends. The applicant stated they had a limited group of friends and work colleagues.
The Tribunal asked the applicant why he and his wife, given that she was a Christian, were not married in a Christian church and were married by an Imam. The applicant stated that he and his wife went to see an Imam who had been recommended because the Imam was a Persian speaker. The applicant further advised that he and his wife had two separate ceremonies to celebrate their marriage one Christian and one Islamic. The Tribunal asked the applicant whether he was a practising Muslim and he advised that he did not practice. The Tribunal asked the applicant whether he fasted during Ramadan and he advised that he did not. The applicant stated that he believed in God.
The Tribunal noted that the evidence before it indicated that the applicant’s wife did not attend church on a regular basis. The applicant stated that his wife was very sick with a lot of medical problems however, he stated that his wife regularly prayed and regularly read passages of the Bible. The Tribunal asked the applicant whether his wife had told him about any of the stories in the Bible. The applicant stated that his wife had told him about how Jesus Christ was crucified and rose from the dead in the resurrection.
The Tribunal asked the applicant about his sister [Sister B]. The applicant advised that his sister was an Australian citizen and as previously noted had obtained protection in Australia through an application to the United Nations made in [Country 1].
The Tribunal noting that the applicant arrived in Australia in 2009 asked the applicant had at that point he given the Department a truthful account of his circumstances in Iran what he would have advised. The applicant stated that when he arrived on Christmas Island he was in a very bad state. The applicant stated that the journey from [Country 1] to Australia by boat was a perilous one and that at the time that he arrived he was extremely stressed and anxious as well is exhausted from the lack of sleep. The applicant stated that he also had medical issues, [specified], for which he was transported to [Australian City 1] to undergo surgery. The applicant stated that other Iranians at Christmas Island was saying that it was best to claim to be Faili Kurd and the applicant stated that other detainees on the island stated that if he told the truth about his circumstances in Iran he would not get a visa to enable him to stay in Australia. The applicant stated that he was of Kurdish ethnicity and that his father was a Faili Kurd who had managed to get documents in Iran. The applicant stated that the word from other detainees at Christmas Island was to state that you were a Faili Kurd.
The Tribunal took evidence from the applicant’s wife who gave her name and date of birth. The Tribunal asked the witness about her immigration history to Australia. The witness advised the Tribunal that she arrived in Australia in August 2011 as the holder of a Tourist visa. She advised it took about 12 months to obtain the visa in Iran.
The Tribunal asked the witness about her family. The witness advised that her parents were still alive although her mother had significant health issues. She advised that her mother had [a variety of medical issues]. The witness advised that she had [number of siblings]. She advised that her sister had come to Australia as a student and later successfully applied for a Protection visa. She advised that her sister was married with [number of] children and that she and the applicant engaged with them from time to time. The witness advised that her [other sibling] was currently a [student] in Iran.
The Tribunal noted that a Visitor visa is valid for 3 months and asked the witness what she did to obtain her permanent residence. The witness advised that about 3 months after arriving in Australia she made an application for Protection and that she was granted protection by the Department at primary stage on the basis of her adoption of and conversion to Christianity. The witness stated that she had an interest in Christianity in Iran but was unable to practice it in that country. The witness advised that when she arrived in Australia she attended a church in [Suburb 4] Victoria with her sister. The witness advised that she was interviewed by the Department with regard to her protection application. The Tribunal asked the applicant whether she had discussed her Christian beliefs with the applicant. The witness stated that she had discussed her beliefs and conveyed a number of stories from the Bible to him and she had advised her husband how she was able to find inner peace through her Christian religious beliefs.
The Tribunal asked the witness whether she continued to practice her Christianity. The witness advised that she continued to read the Bible and pray but did not attend an institutional church on a regular basis because she had suffered a significant range of health problems. The Tribunal sought more details of these problems.
The witness advised that since the age of [age] she had problems with her [body part]. She advised that she was overseen in Australia by [a named specialist]. She advised that she also had a [further specified] problem which caused problems with [another body part]. She advised that she saw a [different specialist] for this problem [named].
The witness further advised that she and her husband had been desperately attempting to conceive a child. So far they had expended between $40,000 and $50,000 on IVF and were still pursuing IVF treatment. The witness stated that she had a pregnancy in 2017 but miscarried at approximately one month and had extremely severe internal bleeding after the miscarriage. The witness stated that as a consequence of the internal bleeding she underwent extensive surgery at [a named] Hospital in Melbourne and was an inpatient for 19 days after the surgery. She advised that this pregnancy was as a result of natural conception but there have been problems with conception since that time. The witness advised that IVF doctors had told her that there was still a significant chance that she would fall pregnant in due course and that she was not too old to conceive.
The Tribunal asked the witness about her employment and she advised that she worked for [a business] in Melbourne.
The Tribunal asked the witness about her first marriage. The witness advised that she was married for the first time in [year] when she was [age] years old. She advised that she entered into this marriage which was arranged between families. She advised that her parents were happy with this arranged marriage. She advised that she was married to her first husband until 2000. She advised that there was one child of the marriage, a son, born on [date] who is now [age] years old. She advised that her ex-husband was living in [Country 3] and that she did not know much more about him. The witness stated that her relationship with her first husband was characterised by domestic violence both physical and verbal and this led to the end of that relationship. The witness stated that her relationship with the applicant was protective and respectful.

The Tribunal asked the witness how her son came to migrate to Australia. She advised that she sought advice from an immigration specialist and then lodged an application for a [specified] visa on the basis that her son was a dependent member of her family unit. The witness advised that her son lived with her since his migration and the applicant and that she provided her son with accommodation and financial support.
The Tribunal asked the witness about the inception of her current relationship. She advised that she met the applicant in 2014 and that the relationship developed quickly from that point. The witness stated that she was married to the applicant [in] January 2016 in a ceremony conducted at [a location] in Melbourne. Around 60 guests attended including her sister and brother in law along with mutual friends of the couple.
The Tribunal asked the applicant whether he had any further evidence that he wished to provide. The applicant re-stated that when he arrived at Christmas Island after the illegal boat journey from [Country 1] he was exhausted and both physically and mentally ill. The applicant stated that he had a problem with a [specified condition] and was transported from Christmas Island to [Australian City 1] to undergo surgery. The applicant stated that whilst he was a detainee on Christmas Island fellow detainees said that as a person of Kurdish ethnicity it would be best if he claimed to be a stateless Faili Kurd. The applicant stated that he had a range of problems in Iran as he had failed to marry his cousin in a marriage arranged by the respective families.
The Tribunal asked the applicant what stress he had experienced as a result of the cancellation. The applicant stated that the cancellation of his visa had a substantial impact on both himself and his wife. He advised that he had now been in an ongoing relationship with his wife for more than five years and they had extensively invested in IVF in the hope of conceiving a family of their own. The applicant stated that he and his wife had discussed plans for their future together which they hoped would include children, the potential of opening up their own business and the potential of buying a home together. The applicant added that he believed that he had made and could continue to make a good contribution to Australia. The hearing concluded.
POST HEARING INFORMATION
The Tribunal received a post hearing submission on 23 December 2019.
The submission included an updated statement from the applicant’s wife. The submission noted that the couple met five years ago. The submission noted that the applicant’s wife had been suffering with a combination of medical problems as well as depression. She advised that she and the applicant had built up a good life together and she described the applicant as an extremely caring husband. The submission noted that the couple had spent thousands of dollars on IVF programs and had plans to try IVF again in the near future. The applicant’s wife described the applicant as stable, supportive, and reliable.
A submission from the applicant’s representative noted that the applicant’s wife, an Australian citizen is substantially reliant on the financial and emotional support of the applicant. The submission noted that the applicant’s wife’s son from her first marriage has recently migrated to Australia and joined the couple’s family unit. The submission noted that the applicant’s wife had been a victim of family violence in her first marriage and had found peace and stability with the applicant.
Annexed to the submission was a report from [Doctor D] the couple’s general practitioner. The report makes reference to the health conditions pertaining to the applicant’s wife. The report notes that the applicant’s wife had been a patient of [Clinic 1] since [2011]. The report notes that “over the years, she has suffered from many complicated medical conditions. She tried five IVF treatment cycles without success. In June 2016, she had a very complicated [operation] during which she nearly died. She has ongoing problems with her [specified conditions]. Over the years, she has suffered from depression symptoms. Despite all these problems, she has been working full-time in a [business] for the past year. Please give this lady and her husband a second chance. For your kind understanding, compassion and help.” The medical report goes on to outline the applicant’s wife’s medical history since 2011. Supplementary reports were provided from medical specialist pertaining to the applicant’s wife’s [specified] conditions. Supplementary medical evidence from a consultant obstetrician and gynaecologist was provided with regard to the IVF treatment that the couple had engaged in an pertaining to the 2016 pregnancy of the applicant’s wife that resulted in miscarriage. The report notes that the applicant’s wife has a complicated obstetric history.
In addition to the above material an additional statement was provided from the applicant dated 4 December 2019. The applicant makes reference to his unlawful travel from Iran to Australia via boat from [Country 1]. The statement makes reference to the applicant’s medical history. The statement makes significant reference to the applicant’s relationship history with his wife and the strong bond that exists between them. The applicant’s statement also notes that he provides substantial support to his wife to help her through her ongoing medical issues and to their commitment to ongoing IVF.
THE SECTION 107 NOTICE
On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 12 April 2017 advising the applicant his visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) (visa applications to be correct) of the Act. The NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a Protection visa on 30 September 2010.
The NOICC advised the applicant that as a result of examination of a [social media] account held by the applicant that he had communicated with [Sister B]. The applicant’s [social media] page indicated that the applicant had attended university in Iran which contradicted his claims to being a stateless Faili Kurd who had not had access to education in Iran. The NOICC noted that based on this information the Department determined that the applicant was an Iranian citizen and was so at the time of his protection visa application on 21 January 2010. The delegate noted that the applicant’s claim that he was stateless was fundamental to the grant of the applicant’s protection visa. The delegate went on to note that the applicant had not complied with the requirements of section 101(b) of the Act namely that a noncitizen must fill in his or her application form in such a way that no incorrect answers are given.
The applicant responded to the NOICC by way of submissions lodged by his representative dated 30 November 2015. In that response the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to Christmas Island and at the time he lodged his application for a protection visa.
No issue has been raised in this review by the applicant as to the validity of the NOICC. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.
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?
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.
As set out above, the NOICC advised the applicant had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 27January 2010.
In his response to the NOICC dated 30 November 2015, the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to Christmas Island and at the time he lodged his application for a protection visa. At the outset of the review hearing the applicant confirmed he had given incorrect information in his protection visa application when he claimed that he was stateless.
As the applicant concedes he gave incorrect information about his citizenship in his protection visa application, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
The correct information:
The evidence before the Tribunal indicates that the correct information is that the applicant is an ethnic Faili Kurd who holds Iranian citizenship and Iranian identification documents.
The Tribunal accepts the applicants explanation as to his family’s circumstances as set out in his response to the s.107 notice and at the review hearing namely that he is of Kurdish ethnicity but that his family held Iranian citizenship.
The content of the genuine document (if any):
This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).
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:
Recourse to the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a Protection visa was based on his claim that he was a stateless Faili Kurd. In his response to the s.107 notice, the applicant acknowledged the decision to grant him the protection visa was based on incorrect information.
The Tribunal accepts on the evidence before it that the applicant is an ethnic Kurd. The Tribunal finds that the applicant’s claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based on the incorrect information. This fact is conceded to by the applicant.
The circumstances in which the non-compliance occurred:
The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his Refugee Status Assessment and in his subsequent application for a Protection (Class XA) visa application. At hearing before the Tribunal the applicant has stated he had given the incorrect information about his statelessness because he was told to by his fellow detainees on Christmas Island to advise Australian authorities of this as his best chance of obtaining protection. The Tribunal accepts the evidence that the applicant at the time of arriving at Christmas Island would have been traumatised by the journey from [Country 1] and that he had medical problems that led to him having to be flown to [Australian City 1] for [specified] surgery which caused him considerable pain and discomfort.
The present circumstances of the visa holder:
The visa holder is in a marital relationship with an Australian citizen. They have been in a relationship since 2014 and married [since] January 2016, almost 4 years now. The evidence before the Tribunal indicates that the applicant’s wife was found to be owed protection obligations by Australia on the basis of her conversion to Christianity and after being interviewed by a Departmental delegate was granted a protection visa at primary stage. The evidence indicates as noted that the applicant’s wife is now an Australian citizen. The evidence indicates that the applicant’s wife’s adult son who has been deemed to be a dependent Member of the applicant and his wife’s family unit, recently migrated to Australia on a [specified] visa and resides with the applicant and his wife.
The evidence before the Tribunal indicates that the applicant and his wife have invested heavily in IVF expending between $40,000 and $50,000 to date in an effort to conceive a child of their own.. This follows an earlier successful natural conception in 2016 that resulted in a miscarriage and the applicant’s wife needing extensive surgery as a consequence of internal bleeding. The couple seem very committed to having a family of their own.
The applicant’s wife gave evidence to the Tribunal at review hearing stating that her first marriage which she entered into at a very young age was characterised by domestic violence. She has provided statements that indicate that the relationship she has had with the applicant has been loving and supportive. The applicant’s wife gave evidence that the applicant is hard-working and a good provider.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:
The evidence before the Tribunal indicates that after being served with the NOICC the applicant acknowledged up front that he had provided incorrect information to the Department in his application for a protection visa.
Any other instances of non-compliance by the visa holder known to the Minister:
On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister. In his response to the s.107 notice the applicant stated that there are no other instances of non-compliance and he has otherwise fully complied with his visa conditions.
The time that has elapsed since the non-compliance:
The relevant non-compliance took place when the applicant made his visa application in January 2010 and almost 10 years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches:
There is no evidence before the Tribunal and indeed the applicant stated at hearing that there have been no instances of the applicant breaching the law and he has been a law abiding permanent resident.
Any contribution made by the holder to the community:
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
If the applicant’s visa is cancelled the applicant will become an unlawful non-citizen and that he will be liable to be detained.
Another consequence of the cancellation of the applicant’s visa is that the applicant is now an important and integral part of the family unit of his wife and her son from a former marriage. The evidence indicates that the applicant’s wife and the applicant have been in a long term marital relationship of close to four years duration and have embarked on a course of IVF since 2016 in their quest to have a family of their own.
If the applicant’s visa is cancelled and he has to return to Iran the evidence before the Tribunal indicates that the applicant’s wife, who is an Iranian of Persian ethnicity (now an Australian citizen) would not be able to relocate to Iran to live with her husband as she has been found by the Australian Government to be a refugee and owed protection obligations by Australia.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements:
The Tribunal accepts on the basis of the evidence before it that the applicant is of Kurdish ethnicity but as discussed with the applicant during the course of the review hearing country information such as the Department of Foreign Affairs and Trade (DFAT) reports that Iran’s laws do not discriminate on the basis of ethnicity. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states those experiences are not uniform. DFAT is not aware of instances where Faili Kurds have been singled out for discrimination or where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. DFAT reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranians. (see DFAT Country Report Iran 7 June 2018 at 3.13 and 3.14).
EXERCISE OF DISCRETION
The Tribunal in considering the exercise of discretion gives significant weight to the finding that the applicant’s statement in his visa application claiming that he was a stateless Faili Kurd was the critical fact that led to the grant of protection. The evidence before the Tribunal and indeed conceded to by the applicant was that the grant of a protection visa was based on incorrect information. The Tribunal finds that had the applicant provided correct information he may not have been found to engage Australia’s protection obligations. The Tribunal discussed this with the applicant at the review hearing and put to the applicant that the Tribunal, held the view that the applicant had been granted permanent residence on a false pretext. The Tribunal holds a strong view that the applicant should not derive a benefit from the provision of false information. However the cancellation of a visa requires a two pronged consideration. Does the ground for cancellation exist (a fact that has been conceded to by the applicant) and whether the visa should be cancelled having regard to a range of discretionary considerations. The Tribunal is also conscious of the fact that the grant of permanent residence occurred in January 2010 almost 10 years ago. In addition to this the Department did not proceed to cancel the applicant’s visa until May 2017 and did not get dealt with at merits review until December 2019. During the extended passage of time since the initial grant of permanent residence the applicant has established a life in Australia, he works as a [Occupation 1] and has been in a marital relationship with an Australian citizen since January 2016. The evidence indicates that since the applicant has been in a marital relationship with an Australian citizen that he and his wife have invested a significant amount of money on IVF in the hope that they can have a family of their own. The evidence further indicates that the applicant’s wife’s son from a former marriage was granted a [specified] visa in August 2019 and has joined his mother and step-father in Australia as a dependent member of their family unit.
All of these discretionary factors require very careful consideration and having given all of the required circumstances such consideration the Tribunal considers that these matters which the Tribunal is required to have regards to outweigh those matters which favour cancelling the applicant’s visa. In particular the Tribunal gives weight to the following matters.
The applicant’s present circumstances

The evidence before the Tribunal indicates that the applicant is in a marital relationship with an Australian citizen. The evidence indicates that the applicant has cohabited with his wife since 2014 and that the couple have been married since January 2016. The evidence before the Tribunal indicates that the applicant and his wife have made a considerable financial contribution to having a family of their own and have engaged in an IVF program to achieve this.
The evidence before the Tribunal indicates that the applicant’s wife has a son from a previous marriage who has recently migrated to Australia having met the requirements for the grant of a [specified] visa and is a dependent member of the applicant and his wife’s family unit. The evidence before the Tribunal indicates that the applicant has been able to provide emotional and financial support to his wife who gave evidence that he previous marital relationship, which had been arranged and which she entered at a very young age had been characterised by domestic violence.
The evidence further indicates that the applicant’s wife obtained her permanent residence on the basis of being found to be owed protection obligations as a refugee.
The Tribunal apportions significant weight to these factors in not cancelling the applicant’s visa.
CONCLUSIONS
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
John Cipolla
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.

[2019] AATA 6728

24 December 2019

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