1713094 (Refugee)

1713094 (Refugee) [2020] AATA 990 (27 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713094
COUNTRY OF REFERENCE:                   Iran
MEMBER:Antoinette Younes
DATE:27 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 27 March 2020 at 12:37pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – not stateless Faili Kurd but Iranian citizen – documentation – member of a particular social group – divorced woman – harassment by former husband and others – religion – conversion to Christianity in Australia – practice and understanding consistent with genuine conversion – discretion to cancel visa – married to Iranian citizen on protection visa – two children born after applicant’s visa cancelled – children’s migration status uncertain – best interests of the children – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101(b), 107, 109(1)
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 delegate cancelled the visa on the basis that the applicant did not comply with 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.
The applicant appeared before the Tribunal by telephone on 24 March 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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.
Section 101 of the Act provides that:
Visa 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.
Section 99 of the Act
By operation of s.99, 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 or whether at an interview or otherwise.
BACKGROUND
The applicant arrived in Australia undocumented at Christmas Island [in] December 2009. She identified herself as [Alias] and claimed that she is a stateless Faili Kurd who was born in Iraq where she lived until she was about two years of age. She claimed that both of her parents were born in the Iraq and under Saddam Hussein’s regime, they were forcibly deported in 1982 to Iran.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. Relevantly, the Tribunal indicated that when the applicant lodged the application for a protection visa on 9 March 2010, she provided a Form 866 – Application for a Protection (Class XA) visa.
a)On the Form 866, at questions 1, 8, and 19 of Part C, the applicant provided her full name as [Alias] and her place of birth as Khaneqin, Iraq, stateless from birth.
b)At question 41 of the Form, she indicated that she was seeking protection in Australia so that she does not have to return to Iran.
c)In response to questions 42-46, she referred to her supporting statement where she claimed that she is a stateless Faili Kurd who has no rights in Iran and always faced discrimination. She claimed that the Iranian government would not allow her to return to Iran. She fears that she would be detained on arrival because she left Iran illegally and would be accused of spying or committing acts against the Iranian regime. She claimed that she would be treated harshly particularly because she is a Faili Kurd and would continue to be denied basic human rights such as the right to work or earn a livelihood. She would be facing further harassment from the Basij. She indicated that she feared harm and mistreatment at the hands of the authorities and the Basij. She indicated that this would happen to her because “I am a faili Kurd. I was born in Iraq, but my parents expelled in about 1980 when I was two years old because the Iraqi government said we were really Iranian citizens. We were able to enter Iran, but the Iranian government did not accept us as citizens. Some people were able to get documents such as Green Cards which were a form of permission to remain in Iran... I never had any identity document… My father died a year after we arrived in Iran from heart problems. My mother died the following year. After this my sister and I were raised by an Iranian friend of my fathers… ”. Her sister married an Iranian national but their marriage could not be registered because her sister did not have any documents. She claimed that she was able to complete primary school and begin high school because her sister’s husband paid money but she was unable to complete her education for lack of documentation. She claimed that she was discriminated against as a Faili Kurd and denied free medical care.
d)The applicant was granted a protection visa on 10 March 2010 on the basis of the claims she has made.
Events subsequent to the grant of the visa
The delegate’s decision record further indicates that on 28 November 2014, the applicant lodged a Freedom of Information request seeking to correct her identity details in Departmental records. She provided identity documents including a birth certificate and a driver’s license issued in Iran. The birth certificate was issued [in her birth year] and the driver’s license was issued [in] August 2001. Information from those documents indicates that the applicant’s given name is [Given name] and her surname is [Surname], born in Tehran Iran, not Khaneqin, Iraq.
The information provided by the applicant shows that she did hold identity documents including a birth certificate and a driver’s license, contrary to the claims she made in the application for a protection visa that she was a stateless Faili Kurd. The delegate referred to country information indicating that a Shenasnameh (Iranian birth certificate/identity certificate) is a primary identification document only issued to Iranian citizens.
In the course of the hearing, the applicant agreed that she had provided incorrect information for which she apologised. She explained to the Tribunal that she was intending to be truthful but when she went to [Country 1] and encountered a Kurdish family, they told her that if she were truthful about her claims of family violence and discrimination in Iran on the basis of being a divorced woman, she would not be successful. She stated that she was later advised to disclose her true identity. She expressed remorse and said she was frightened that the truth would mean that she would be sent to Iran involuntarily.
NOTICE OF INTENTION TO CONSIDER CACELLATION (NOITCC/Notice)
On 27 January 2017, the Department sent to the applicant a NOITCC to which the applicant responded in a statement dated 23 February 2017, as follows:
i)   She was born on [date] in Tehran, Iran into a family of [number]. Her father owned a [business] and her mother was a housewife. She has [a number of] sisters and [a number of] brothers. She had a happy childhood until her father died when she was [age] years of age. Subsequent to her father’s death, her grandfather managed their affairs. The grandfather sold her father’s [business] and kept money for himself. The grandfather made them get married as soon as possible while they were very young. He forced her to marry a “well-off” man in the neighbourhood when she was only [age] years of age. Her husband was [a number of] years older and he was violent. He abused drugs. Her mother encouraged her to divorce her husband [in] October 2002.
ii)     Subsequent to the divorce, she lived with her mother but her grandfather banned her from leaving home and when she was [age] years of age, her grandfather passed away and she gained freedom. She found work but as soon as the manager discovered that she was a divorced woman, he made sexual advances which caused her to leave her job. She was harassed by her former husband and she feared him kidnapping her.
iii)   Her mother died of [a Medical condition] in 2006 and she lived with her younger brother. She became [an Occupation] and worked in a female only [workplace 1]. She developed a [Medical] disorder and could no longer work in that environment. She decided to work in a [Workplace 2] but she was later identified as a divorced woman. She was harassed on a number of occasions but she could not complain about the situation. She was vulnerable and the law was in favour of men. She once complained to the police about being forced to engage in sexual activities with a man but the police held her responsible.
iv)   She had a miserable life in Iran and decided to come to Australia for her safety and because her sister had been living in Australia for 20 years. She went to [Country 2] as “ordered” by the human trafficker where she saw relatives of the smuggler who were Faili Kurds who told her that if she were to tell the truth, the Australian authorities would not consider her claims favourably.
v)    She wanted to be truthful but she also discovered that her sister was granted protection because of her husband’s family affiliation with Faili Kurds. Her sister asked her not to discuss their claims as the family is happy and living a comfortable life in Australia which she did not want to risk. On reaching Sydney, she started living with her sister and her sister’s family. She was happy that she would be safe in Australia although she felt uncomfortable about being untruthful.
vi)   She moved out of her sister’s home but with no income or employment, she went to temporary accommodation where she lived with the homeless and substance users for some weeks. This caused her psychological issues including severe depression and anxiety. She visited a psychologist and a psychiatrist regularly but nothing changed in her life for a long time. Eventually, she found public housing. Despite living safely in Australia, she has “lived in misery and in fear of anything happening”. She decided to apply for Australian citizenship and face the consequences.
vii) On advice, she wanted to correct the record. She has suffered from severe depression and has discovered that her sister is now divorced and faced serious mental health issues for which she was hospitalised.
viii) She takes medication for her mental health and constantly in fear of being sent back to Iran. If she had to go back, she would contemplate committing suicide so she does not have to return. She met her partner in September 2016 and soon discovered that he is a devoted Christian who attends Church every Sunday. He brought hope to her life and she has regained confidence. After going to different Churches with him, her life changed and began see that God loved her and has given her hope. Her partner took her to [a] Church and they arranged for the registration of their marriage through [Pastor A] [in] April 2017, after her baptism. The Iranian regime would not tolerate her Christian conversion. If she had to return to Iran when her husband is about to be granted a temporary protection visa that would cause her severe hardship.
ix)   She apologises for the provision of the incorrect information but would like another opportunity to demonstrate her appreciation and gratefulness to Australia.
In support of her response and to the Tribunal, the applicant provided a NSW Change of Name Certificate dated [November] 2015, an Iranian birth certificate showing the applicant as being divorced [in] October 2002, Iranian national ID card, Certificate of Baptism of the applicant’s fiancé, letter of support dated [February] 2017 of the applicant’s fiancé from [Pastor B] referring to the fiancé’s conversion to Christianity, the applicant’s NSW driver’s license, birth and death certificates of the applicant’s parents, the applicant’s Baptism Certificate of [May] 2017, report from psychiatrist dated [December] 2013 in relation to the applicant’s mental health including PTSD, major depressive disorder, social anxiety, and generalised anxiety disorder , visa grant (SHEV granted on 8 March 2017) for the applicant’s husband, multiple photographs of the applicant with her husband and infant son born on [date], in Church gatherings, letter of support concerning the applicant from [Pastor C] dated [August] 2019, Newborn Child Declaration about the applicant’s second daughter born on [date], and marriage certificate of [September] 2017.
In submissions to the Tribunal dated 20 March 2020, the representative referred to earlier submissions and reiterated the applicant’s background and the applicant’s regret for the provision of incorrect information to the Australian authorities.
The representative focused on the following matters:
i)   The applicant met her husband, known as [Mr D], in September 2016 and he brought her hope. [Mr D] treated her with love and respect and helped her regain confidence. [Mr D] explained the love of God and invited her to read the Bible. She started going to Church with him for some time and embrace Christianity. She was subsequently baptised by [Pastor B] [in] May 2017 in [a] Church of [Suburb]. [In] September 2017, [Pastor B] solemnised the marriage according to the Christian faith.   She continues to be committed to her Christian life with [Mr D]. She and [Mr D] have two children, a son and a daughter. The family lives happily but they are worried about the cancellation of her visa.
ii)     The applicant’s and her husband’s Christian faith are public and they both fear returning to Iran as they would be persecuted. Conversion to Christianity in Iran would be unforgivable carrying a sentence of capital punishment. Moreover, her marriage in Australia to her husband would not be considered legal in Iran and in fact would be considered as an act of adultery subject to severe physical punishment.
iii)   Despite providing incorrect information and making false claims, the applicant was a divorced woman in Iran and was subjected to family violence. She is a member of a particular social group (divorced women from Iran) who were subjected to discrimination, degradation and deprivation of basic human rights in Iran.
iv)   The applicant is owed Australia’s protection obligations and if she were forced to leave Australia, she has nowhere else to go. She would be separated from her husband and would be considered an outcast by her relatives and the general Islamic Society of Iran.
v)    She faces persecution by the Iranian authorities on the basis of her conversion from Islam to Christianity. Conversion from Islam to Christianity implies that the applicant does not recognise the legitimacy of the Iranian authorities.
FINDINGS & REASONS
The applicant does not dispute that she has provided incorrect information when applying for the protection visa. She has accepted that she provided incorrect information in response to relevant questions in the application for a protection visa, specifically in response to questions 1, 8, 19, and 42 to 46.
In consideration of the evidence as a whole, the Tribunal finds that the applicant did provide incorrect information in her responses to those questions, the Tribunal finds that the applicant is not a stateless Faili Kurd, contrary to the claims she had made in responses to those questions. The Tribunal finds that the applicant is an Iranian national not a stateless Faili Kurd.
For those reasons, the Tribunal finds that there was non-compliance with 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. Briefly, they are:
· the correct information
The correct information is that the applicant is not an undocumented stateless Faili Kurd but an Iranian national with the possession of the Shanesnameh. The correct information is that the applicant is an Iranian national who has identity documents.
As discussed in the course of the hearing, the Tribunal considers the provision of incorrect information to the Australian authorities to be serious.
The Tribunal gives this aspect significant weight in favour of the visa cancellation.
· the content of the genuine document (if any)

The applicant has provided an Iranian birth certificate and an Iranian national identification card indicating that she is an Iranian national, not a stateless Faili Kurd.
The Tribunal gives weight in the applicant’s favour in the fact that in her attempt to correct the record, she provided genuine 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
The claims that the applicant is a stateless Faili Kurd are significant claims. Those claims are central and not peripheral matters. The Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on the incorrect information that the applicant had provided.
The Tribunal gives this aspect significant weight in favour of the visa cancellation.
· the circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant lodged the application for a protection visa on 9 March 2010 claiming to be a stateless Faili Kurd when in fact the applicant is an Iranian national.
The applicant has provided a number of explanations but essentially she indicated that she was advised by Kurdish persons that if she were to make the claims based on her divorced status and any consequential discrimination, she would not succeed in being granted a protection visa from the Australian authorities.
The Tribunal is not persuaded by the applicant’s explanations; there is a personal responsibility involved as recognised in s.99 of the Act. The provision of false and incorrect information to the Australian authorities has the potential of undermining the migration program and the legislature had intended that a visa can be cancelled on the basis of the provision of incorrect information – as has happened in this case. The cancellation of the visa is not intended to be punitive but cancellation has a significant role in maintaining the integrity of the migration program, as well as, demonstrating respect for Australia’s laws and authorities.
The Tribunal gives some weight in the applicant’s favour in the fact that she has acknowledged her wrongdoing and has expressed remorse. However, the Tribunal gives significant weight to the fact that the applicant has provided incorrect information on the basis of which she was granted an Australian protection visa.
· the present circumstances of the visa holder
The applicant has been married for approximately three years. She has married an Iranian national (she gave evidence that he is of Iranian nationality) who according to the applicant was granted the SHEV on the basis of his conversion from Islam to Christianity. She has also converted to Christianity. The couple now has two [children].
The Tribunal asked the applicant about the migration status of the children and the representative advised that he would get back to the Tribunal as the applicant was uncertain. Subsequently, the representative advised the Tribunal that the children’s migration status remains unresolved.
On the evidence and without information to the contrary, the Tribunal accepts that the applicant is in a genuine relationship with her husband who holds a temporary protection visa.
The Tribunal questioned the applicant extensively about her conversion to Christianity and about her Christian beliefs. The Tribunal acknowledges that the applicant’s credibility must be questionable given the fact that she has previously provided incorrect information, however, the applicant has provided evidence in support such as letters from Pastors supporting her claim of conversion to Christianity.
In the course of the hearing, the Tribunal formed the view that the applicant has an understanding of Christianity commensurate with a person who has converted to Christianity. She gave evidence that she has the Bible in the Persian language which she reads. She gave examples of her favourite stories in the Bible. She distinguished between Islamic and Christian religious principles. Both the applicant and her husband have been baptised. In relation to the children, she advised the Tribunal that they have not been baptised yet as she was advised by the Pastor that it would be best for the children to make their own decisions about being baptised. The Tribunal does not see this aspect as undermining the applicant’s claim of conversion to Christianity.
The Tribunal discussed with the applicant that potentially it is arguable that she has engaged in Christian-related activities to strengthen her current protection claims. She said she understood the concern and stated she is a Christian.
The Tribunal has concerns about the purpose of the applicant’s conversion to Christianity but in consideration of the evidence as a whole, the Tribunal accepts that the applicant has converted from Islam to Christianity and that she would be considered by the Iranian authorities as being a Christian who converted from Islam and who has married a convert from Islam.
In its 2018 Report, the Department of Foreign affairs and Trade (DFAT)[1] refers to the following matters:
[1] DFAT Country Information Report, Iran, 7 June 2018.
RELIGION
Approximately 98 per cent of Iranians are Muslim – 90 per cent Shi’a, and 8 per cent Sunni. The remainder consists of religious minority communities, including Yarsan (approximately one million followers), Baha’is (more than 300,000), various Christian denominations (around 300,000), Zoroastrians (30,000-35,000), Jews (20,000) and Sabean-Mandeans (5,000-10,000). Religious minority communities have shrunk considerably since 1979, with many members leaving Iran.
Iran is a theocracy that, with the possible exception of The Holy See, mixes religion and state more completely than any other country in the world. Article 4 of the Constitution requires that all of the country’s laws and regulations be based on (Shi’a) Islamic principles. In practice, government policy and legislation heavily favours the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities. The Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security (MOIS) monitor religious activity. The IRGC also monitors churches.[2]
…
Religiously-based charges
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, other Shi’a holy figures, or other divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Koran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter Five of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. In the vast majority of cases, however, defendants charged with apostasy also faced a litany of other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups).
Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation. Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[3]
[2] DFAT Country Information Report, Iran, 7 June 2018 at 3.17-3.18.
[3] DFAT Country Information Report, Iran, 7 June 2018, at 3.41 – 3.45.
The Tribunal is satisfied that as a convert from Islam to Christianity, the applicant faces a real chance and risk of serious and significant harm on the basis of that conversion. The Tribunal finds that the applicant would be considered as being anti-Islam, holding anti-regime opinions by virtue of her own conversion, as well as, the fact that she has married a convert, adding to her risk of harm. The Tribunal is satisfied that the applicant’s fear on this basis is well-founded.
In relation to her claimed fear of harm on the basis of being divorced previously, the Tribunal is satisfied that there is a real chance that she would be seriously harmed due to being married to a man who converted from Islam rather than due to previously being a divorced woman. The Tribunal is satisfied that her marriage to a convert adds to her adverse profile, increasing the risk of serious harm.
The Tribunal gives significant weight to the applicant’s circumstances in her favour.
· Subdivision C of Division 3 of Part 2 of the subsequent behaviour of the visa holder concerning his or her obligations under Act
The applicant’s non-compliance was discovered when she lodged a freedom of information request on 24 November 2014. She provided Iranian identity documents to support her request. This was a voluntary act on the part of the applicant following professional advice.
The applicant has acknowledged in the response to the NOITCC and to the Tribunal that she had provided incorrect information.
The applicant expressed remorse and conceded wrongdoing.
The provision of incorrect information is serious warranting adverse consequences. However, the Tribunal has decided to give weight in the applicant’s favour in her correcting the record and acknowledging wrongdoing.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance.
The Tribunal gives weight to this aspect in the applicant’s favour.
· the time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged the application for a protection visa on 9 March 2010, over 10 years ago.
During that time, the applicant has married and now she has two minor children.
The Tribunal considers a 10 year period to be significant and the Tribunal gives this aspect weight in the applicant’s favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any breaches of the law.
The Tribunal gives weight to this aspect in the applicant’s favour.
· any contribution made by the holder to the community.
There is no information concerning this aspect.
The Tribunal gives this consideration neutral weight.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. The applicant could also be precluded from making any further visa applications subject to s.46 and s.48 of the Act.
If the applicant chooses to remain in Australia unlawfully, she could be liable for removal and detention.
The Tribunal is satisfied that although those consequences are intended lawful consequences of the legislation, in the applicant’s case, they present significant hardship, including potential consequences of being separated from her husband and two minor children in Australia.
The Tribunal gives weight to this consideration in favour of the applicant.
·whether there would be consequential cancellations under s.140
The Tribunal has been advised that the migration status of applicant’s two minor children has not been resolved. The two children were born subsequent to the cancellation of her visa but had the visa not been cancelled, the children could potentially have been added to her visa rather than her husband’s temporary SHEV.
Therefore, although there is no current consequential cancellation as the children have not been granted any visas, the cancellation of the applicant’s visa has a serious consequential impact in that the children would not have the opportunity to obtain subclass 866 visas as secondary applicants.
The Tribunal gives this aspect significant weight in the applicant’s favour.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s two minor children. The CROC applies to children under 18 years of age.
By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.
The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.
The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The cancellation of the applicant’s visa could potentially mean separation from the husband. If the applicant departs Australia with the two children, the family would be separated and the children would not have the opportunity to be with their father, unless the whole family departs Australia. However, the husband was granted a protection visa, albeit temporary, on the basis of findings that he met the criteria for the visa. Until the expiry of the SHEV and unless there are other events, the husband is allowed to live in Australia – as intended by that visa.
The Tribunal is satisfied that it is in the best interests of the children that the applicant’s visa not be cancelled. In these circumstances, the Tribunal is satisfied that Australia would be in breach of the CROC in case of the cancellation.
On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would be in breach of its international obligations.
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR)
The applicant has made protection claims, namely her and her husband’s Christian-related activities, and their conversion to Christianity. For the stated reasons, the Tribunal has found that the applicant has engaged in Christian-related activities which give rise to an adverse profile. The Tribunal is satisfied that both the applicant and her husband would be imputed with anti-regime views, and that on returning to Iran, she would be persecuted, and that she has a well-founded fear on the basis of any of those claims.
Based on the material before it, the Tribunal is satisfied that there is a real chance or a real risk of the applicant facing serious or significant harm in case of her return to Iran. For those reasons, the Tribunal finds that Australia would be in breach of its non-refoulement obligations.
The Tribunal gives this aspect significant weight favourable to the applicant.
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
In this case, the Tribunal considers that there is a significant degree of hardship to the applicant and to her family. As discussed above, cancellation could potentially mean the separation of the applicant from her husband and/or minor children. The potential separation of the children of the children from their father would result in severe hardship to two minors as it could mean not seeing their father for a period of time.
The Tribunal gives this aspect significant weight favourable to the applicant.
CONCLUDING REMARKS
The task of the Tribunal in this instance is to determine whether there was non-compliance by the applicant in the way described in the s.107 notice.

When the applicant applied for a protection visa, she claimed that she feared harm essentially on the basis of being a Faili Kurd. She claimed that the authorities of Iran could not protect her from the harm she feared. She feared that she would be harmed in case of return. The applicant was granted the Protection visa on the basis of those claims, which are incorrect.
The Tribunal considers the cancellation of a permanent protection visa to be serious and significant, requiring proper consideration of all relevant matters.
For the stated reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice. The Tribunal is satisfied that there are strong factors including but not limited to, the fact that the applicant has two minor children, a partner, and there are non-refoulement obligations, to mean that on balance of all considerations, the Tribunal is satisfied that it is the correct and preferable decision to exercise discretion in the applicant’s favour. This does not mean that the Tribunal has not given significant weight to the applicant’s conduct in providing incorrect information, but the balance of the relevant considerations mean that there are strong factors in favour of the applicant.
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. However, 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.
Antoinette Younes

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.

[2020] AATA 990

27 March 2020

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