1713353 (Refugee)

1713353 (Refugee) [2018] AATA 4011 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713353
COUNTRY OF REFERENCE:                  Iran
MEMBER:Alison Murphy
DATE:27 August 2018
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 27 August 2018 at 9:41am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – nationality – stateless – race – Faili Kurd – religion – Christian convert – one child has Australian citizenship – best interests of the child – contribution to Australian community – non-refoulement obligations – decision under review set aside

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 36, 65, 97-101, 107-109, 116, 128, 134B 140
Migration Regulations 1994, Schedule 2, 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).
According to the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the applicant arrived in Australia on 23 January 2010 and was granted a protection visa on 30 September 2010. The protection visa was granted on the basis of claims he made in the application for a protection visa (the visa application) in which he stated among other things that he feared persecution in Iran as a stateless Faili Kurd.
On 2 May 2012 the applicant’s wife lodged an application for a partner visa, nominating the applicant as her sponsor. In support of that visa application, she provided a copy of her Iranian birth certificate, her marriage registration and their son’s Iranian passport as well as details of the applicant’s birth record and identity card details. This information led the department to believe that the applicant was an Iranian citizen and not stateless.
In a notice issued under s.107 of the Act dated 22 February 2017, a delegate of the Minister informed the applicant that he considered he 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 21 June 2017 a delegate of the Minister cancelled the applicant’s visa and on 23 June 2017 the applicant applied to this Tribunal for a review of the decision.
The issues in the review are whether there was non-compliance in the way described in the notice 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.
The applicant appeared before the Tribunal on 17 July 2018 and 13 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s wife [named] and [Witness A]. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE SECTION 107 NOTICE
On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 22 February 2017 advising him 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 23 August 2012.
The NOICC advised the applicant that the information submitted by [the applicant’s wife] in her partner visa application indicated he and his family were Iranian citizens, as his son would not have been able to obtain an Iranian passport if the applicant were not an Iranian citizen and his wife acquired Iranian citizenship through her marriage to the applicant.
The applicant responded to the NOICC by way of submissions lodged by his representative dated 19 March 2017. In that response the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival [in Australia] 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 this notice. 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 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 23 August 2012.
In his response to the NOICC dated 19 March 2018, the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival [in Australia] and at the time he lodged his application for a protection visa. At hearing the applicant confirmed he had given incorrect information in his protection visa application when he claimed that he and his family were stateless.
As the applicant concedes he gave incorrect information about his citizenship and that of his family 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: I consider the correct information is that the applicant is an Iranian citizen, as are his wife, son, parents and siblings.
I accept his explanation as to the family’s circumstances as set out in his response to the s.107 notice, being that his father fled Iraq in the early 1970s and settled in Ilam, where he married the applicant’s mother. The applicant and his [siblings] obtained Iranian identity documents through their mother before the 1979 revolution, but after the revolution his father obtained someone else’s Iranian identity document because he was afraid that his younger children born after the revolution wouldn’t be able to get identity documents. The applicant’s father later applied for genuine Iranian identity documents and received them shortly before he died in 2004 and the applicant’s younger siblings were then given genuine Iranian identity documents.
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: As referred to in 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.
I accept the applicant is in fact a Faili Kurd. However I consider his claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based at least in large part, on the incorrect information.
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 visa application, an accompanying statutory declaration and at an interview conducted in respect of his protection claims. At hearing before me, the applicant stated he had given the incorrect information about his statelessness because he was told to by the people smugglers. In the response to the s.107 notice, the applicant claimed to be stateless on the advice of the people smugglers, being scared he would be kept in detention for a few months before being deported back to Iran.
The present circumstances of the visa holder: The applicant is married and his wife and youngest son joined him in Australia on a partner visa in 2012 while their elder son remained in Iran. Prior to their arrival in Australia, the applicant spent time with his wife and children in [a named country]. Their daughter was born in Australia in [year] and is an Australian citizen, now aged [age]. Their younger son is [at] [school] in [a named region], now aged [age]. The applicant runs a [business] and he works six days a week, employing [other] people. The business is successful with the applicant’s Australian income tax return showing a business income of [amount] in the 2017/18 financial year.
The applicant has purchased two residential properties in Australia, one of which he lives in with his family and the other of which is an investment property. They are both mortgaged, but the applicant saved the deposit of 20% for each property from his work in Australia. The applicant has significant ties in the Australian community, being active in his business, [a named Kurdish group] and [Church 1] (discussed further below). He has produced references from [a named person] of [a business] and members of [a Kurdish group]. Those references attest to his good character, his hardworking nature and his volunteering and community building activities.
The applicant’s wife has suffered from [health] problems since arriving in Australia. A letter from her doctor [states] she is currently receiving treatment for [Condition 1] from a [specialist] and lists a number of other medications she is taking, including [medication names]. At hearing the applicant’s wife also showed me a prescription for [a further medication], which she said had been prescribed to her for [another issue]. The medical report states she also suffers from [multiple conditions]. I accept the medical evidence before me.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:
According to the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the visa holder made no efforts to correct the incorrect information prior to being issued the s.107 notice dated 22 February 2017. In his response to the s.107 notice dated 19 March 2017, the applicant concedes that he had provided incorrect information but asked that his particular circumstances be considered.
Any other instances of non-compliance by the visa holder known to the Minister: On the basis of the evidence before me there are no other instances of non-compliance by the applicant known to the Minister. In his response to the s.107 notice dated 19 March 2017, the applicant states 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 2010 and approximately eight years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision refers to the applicant being charged with [an offence] in March 2017. At hearing the applicant gave evidence he was involved in an argument with [a client], during which he [damaged an item] and was subsequently charged. He showed me an order from the [local] Court dated [in] May 2018 stating he was placed on a diversion program which requires him to pay money to a charity, write an apology to the complainant and complete an anger management course.
Any contribution made by the holder to the community: I accept the applicant has made a significant contribution to the Australian community. As demonstrated by his income tax returns, he has started a [business] which last year had a business income of [amount] and employs [people]. As set out in the reference from the [named Kurdish group], he has engaged in volunteering and community building activities. He has assisted other Kurdish asylum seekers to find accommodation and employment.
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 visas of the applicant’s wife and son will also be cancelled under section 140 of the Act. I accept that as a consequence of the cancellation of his visa the applicant will become an unlawful non-citizen and that he will be liable to be detained.
Best interests of the child and the Convention on the Rights of the Child
As noted above, if the applicant’s visa is cancelled, the visa of his son will be cancelled under s.140 of the Act. The applicant’s [daughter] is an Australian citizen, but is the only member of her immediate family in that position.
The Department’s Policy Manual sets out that in deciding whether to cancel, a decision maker is obliged to treat as a primary consideration the best interests of any children in Australia and to consider Australia’s obligations under the Convention on the Rights of the Child (CROC). The CROC contains principles that should be applied when a decision maker takes actions that affect a child, including that their best interests be treated as a primary consideration and the child’s right to know and be cared for by their parents means that decision makers should take appropriate measures to prevent children being separated from their parents. When assessing the best interests of a child, PAM3 sets out the factors to be considered when exercising a discretionary power, including the child's age and the degree of their integration into the Australian community as well as the child's ability to resettle and integrate in the country of citizenship[1].
[1] Guiding Principles – Treatment of Children PAM3 at A122
The applicant’s son is currently in [school] and attended school in Iran up until [number] grade. The applicant gave evidence his son reads and writes only English, although he is able to speak Farsi. I accept that having spent six years in Australia, he is well integrated into the Australian community and he would face significant challenges resettling in Iran. In particular I accept it would be extremely disruptive to his education, given that he is in his [specified] years of [school] and is unable to read or write Farsi. The applicant’s [daughter] is an Australian citizen who has never entered Iran. I accept it is in the best interests of the applicant’s son and daughter in Australia to remain living in Australia with both parents.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements:
Faili Kurd
The applicant argues that as a Faili Kurd, he will be subjected to discrimination if returned to Iran. In his response to the s.107 notice the applicant maintained he will be subjected to discrimination in Iran as a Faili Kurd, but acknowledged that such discrimination did not give rise to a level of harm such as would engage Australia’s non-refoulement obligations.
As set out above, I have found the applicant is an Iranian citizen. I have accepted the applicant is a Faili Kurd but as I discussed with the applicant at hearing, 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 Iranian citizens[2].
[2] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.13 and 3.14
I accept that Faili Kurds and other ethnic minorities in Iran face a level of official and societal discrimination in Iran, however I do not accept the discrimination described by the applicant rises to the level of serious harm for the purpose of s.5J(5) or significant harm for the purposes of s.36(2A).
For the above reasons, I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, because he is a Faili Kurd, if he returns to Iran now or in the reasonably foreseeable future.
Christian faith
During the first hearing it became apparent the applicant and his wife have recently engaged with the Christian church. Initially the applicant did not wish to discuss his religious activities at the hearing, stating it was private and not relevant to his visa cancellation. After being advised it was relevant to the Tribunal’s assessment of Australia’s non-refoulement obligations, he agreed that I should hear evidence from his wife and [Witness A], another member of the church.
I was also provided with a letter from [Leader A] of [Church 2]. The applicant and his wife gave consistent evidence about their engagement with [Church 2], which commenced in early 2018. Their evidence was corroborated by oral evidence [Witness A] and a letter of support from [Leader A].
The timing of the applicant’s engagement with the church initially caused me some concern given it occurred after the applicant’s visa was cancelled. However having regard to the evidence of the applicant, his wife, [Leader A] and [Witness A], I am satisfied that the applicant’s conduct in Australia was not for the purpose of strengthening his claims to be a refugee:
·The applicant did not initiate his engagement with [Church 1]. Consistently with the applicant’s own evidence, [Witness A] gave evidence that she met the applicant after engaging him [for his business]. While he was doing so, she invited him to attend her church, telling the Tribunal that she invites everyone to attend her church because it changed her life and she feels obliged to offer that opportunity to others. She gave evidence the applicant initially turned her down, advising her he was too busy and worked on Sundays and so she asked him if his wife would like to attend;
·The applicant’s wife was at this time extremely unwell [with stated conditions and was] unable to leave the house or care for her children. As set out above, she was also diagnosed with [Condition 1] in 2017 and is being treated by a [specialist]. When the applicant explained to [Witness A] that his wife was unwell and unable to drive, she offered to collect his wife from her home and drop her home after church. [Witness A] did this each Sunday for two months;
·After two months the applicant saw a significant change in his wife’s [health], describing it at hearing as a miracle. He gave evidence that the church had given his wife a gift he couldn’t buy, despite all the money he had spent on doctors and counsellors. He gave evidence that she was able to laugh and care for the children, after years of not being able to do so. Since that time he has attended [Church 1] with his wife and children each Sunday. I accept the applicant and his wife credit the significant improvements in her [health] to her conversion to the Christian faith;
·Since that time the applicant and his wife have attended church each Sunday and Friendship Groups each Friday evening. The applicant’s wife was baptised into the Church on [a date in] 2018, as evidenced by the letter from [Leader A]. At hearing she described the process of baptism and the significance of Easter. The applicant was baptised into that church in early August 2018. The applicant’s [family members] in Australia are aware of his wife’s conversion and accepting of it, acknowledging the very significant improvement in her [health]. The applicant and his wife have not told their families in Iran;
·[Leader A] describes the engagement of the applicant and his wife with the church over the past six months, stating they have made many friends who have helped them to learn about god and wish to open their home to Friendship Groups in their house. She states she has known many people seeking asylum in Australia, but she believes the decision of the applicant and his wife’s to embrace Christianity is genuine.

While I consider the applicant is still at a very early stage of his faith journey, I am satisfied that the applicant’s conduct in Australia was not for the purpose of strengthening his claims to be a refugee. I accept that he and his wife will continue to attend church and participate in the church community and develop their understanding of the Christian faith. I accept the evidence of the applicant’s wife and [Leader A] that the applicant’s wife will soon commence holding Friendship Groups in their home. I accept that if returned to Iran, they would wish to continue to practise their Christian faith.
DFAT reports that 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. Approximately 98% of Iranians are Muslim, the remainder consisting of religious minority communities, including various Christian denominations made up of recognised ethnic minority churches (about 300,000 people). While Christianity is one of three recognised minority faiths in Iran, Iran’s Penal Code strictly prohibits proselytization by religious minority groups and it is a capital crime for non-Muslims to convert Muslims. None of the three recognised minority religions in Iran proselytise or accept converts as members who are under strict instructions not to minister to Iranians. The strict prohibition on ministering to Iranians is enforced by bans on conducting services in Farsi and identity checking worshippers to verify that non-Christians or converts do not participate in these services[3].
[3] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at pp19-23
DFAT reports that as a result of these prohibitions, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’. Secrecy surrounding these churches make it impossible to assess the number of unrecognised Christians in Iran, but DFAT assesses that Iran has a significant and growing unrecognised Christian population, a high percentage of which are Farsi-speaking converts from Islam and their children. According to international observers, house churches exist across Iran and frequently change locations and members. While some have leaders trained in theology, others may be untrained with an increasing number being led by ‘internet pastors’, where a pastor who has fled Iran may continue to lead the church remotely by internet[4].
[4] Ibid
DFAT reports the Iranian authorities have interpreted the growth in house churches as a threat to national security, characterising them as ‘illegal networks’ and ‘Zionist propaganda institutions’. Under the current Rouhani administration, security forces have increased the frequency of crackdowns on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise or seek out new members.
Long sentences for house church activities have been handed down by the judiciary: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, sentencing the group to between 10 and 15 years imprisonment. As of December 2016, approximately 90 Christians were reportedly in detention or awaiting trial because of their religious beliefs and activities[5].
[5] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at pp19-24
Christian advocacy groups report the authorities have pressured some church leaders to migrate, either through direct threats or intentional harassment, including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs. Human rights observers report that Christians in detention are subjected to severe physical mistreatment, including beatings and solitary confinement[6].
[6] Ibid
DFAT assesses that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from the authorities upon return to Iran, provided they have not previously come to the attention of the authorities for political activities conducted in Iran and they maintain a low profile and do not engage in proselytization or political activities within the country. Similarly it assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from the authorities beyond monitoring and low level harassment. Rather it assesses that members of larger congregations that engage in proselytization and have connections to broader house networks are more likely to face official repercussions, which may include arrest and prosecution and the leaders of such congregations are at particular risk[7].
[7] Ibid
Other sources confirm DFAT’s advice about the restrictions on Christian converts in Iran. The United States Commission on International Religious Freedom reported in 2017 that there was an increase of anti-Christian sentiment in government-controlled and pro-government media outlets during the year and the government continued to regulate Christian religious practices closely to enforce the prohibition on proselytising and conversion[8].
[8] United States Commission on International Religious Freedom Annual Report 2017 26 April 2017
In March 2017 the UN Special Rapporteur noted the targeting of Christian converts in Iran, whom she said continued to face arbitrary arrest, harassment and detention and are often accused of national security crimes such as ‘acting against the national security’ or ‘propaganda against the state’[9].
[9] UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 6 March 2017
The UK Home Office cites a number of international organisations as reporting that the most severe abuse is faced by Christians who have converted from a Muslim background, and those who engage in ministry among Persian speaking people of a Muslim background and that security forces continue to target Christian converts of Muslim heritage, as well as members of the house church movement who gather to worship in private homes. It reports that activities which attract attention from the authorities include:
·Any kind of gathering;
·Sharing the gospel;
·Being in possession of more than one bible or a library of Christian literature;
·Holding discipleship classes;
·Studying theology;
·Contact with Christian organisations;
·Attending Christian conferences and seminars inside the country or abroad where teaching takes place;
·Hosting, or in some cases, even attending house churches[10].
[10] UK Home Office Country Policy and Information Note Iran: Christians and Christian Converts March 2018
In this case the applicant and his wife are new members of their church and not church leaders. However their church is a large, actively proselytising church and they not only attend services but engage in friendship groups, bible studies and social activities. I find that if the applicant and his wife were to return to Iran and openly practise their Christian faith in the manner they do they here in Australia, there is a real chance they may come to the adverse attention of the Iranian authorities.
While it may be possible for the applicant and his wife to avoid harm upon return to Iran by joining a small house church that maintains a low profile and does not seek to recruit new members, this would in effect require them to alter or conceal their religious beliefs and cease to be involved in the full practise of their faith contrary to s.5J(3)(c)(i). As such I am satisfied they are not precluded from having a well-founded fear of persecution by the operation of s.5J(3).
DFAT reports that under Iranian law a Muslim who leaves his or her faith and converts to another religion can be charged with apostasy which is punishable as a capital crime under sharia law. It states politically motivated apostasy charges were reportedly frequent in the years following the Iranian revolution. While apostasy cases are no longer an everyday occurrence in Iran, DFAT states the Iranian authorities continue to use religiously based charges such as ‘insulting Islam’ against individuals, including Muslim-born Christian converts[11].
[11] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at pp24
In March 2017 the UN Special Rapporteur noted the targeting of Christian converts in Iran, whom she said continued to face arbitrary arrest, harassment and detention and are often accused of national security crimes such as ‘acting against the national security’ or ‘propaganda against the state’[12].
[12] UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 6 March 2017
For these reasons I find there to be a real chance the applicant and his wife will face systematic and discriminatory conduct amounting to serious harm if returned to Iran for the essential and significant reason of their Christian faith. As the perpetrator of that harm is the Iranian state, I find that effective protection is not available to them and the real chance of persecution relates to all areas of Iran. It follows that I find the applicant meets the criteria set out in s.36(2)(a) and that his removal from Australia would be in breach of Australia’s non-refoulement obligations.
EXERCISE OF DISCRETION
In exercising my discretion, I give significant weight to my finding that the applicant’s statement in his visa application that he was a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based in large part on the incorrect information he provided. As I discussed with him at hearing, I consider that had the correct information been known he may not have been found to engage Australia’s protection obligations and I consider it is inappropriate that he should benefit as a result of this incorrect information.
However in this case, having given careful consideration to all the relevant circumstances, I consider that other matters to which I am required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular I give weight to the following matters.
The applicant’s contribution to the community: For the reasons set out in detail above I have accepted the applicant has made a significant contribution to the Australian community, starting a successful [business] which employs [people]. I have accepted he has engaged in volunteering and community building activities and assisted other Kurdish asylum seekers to find accommodation and employment. References provided to the Tribunal indicate he is held in high regard by his professional colleagues, the Kurdish community and his church community and I give those matters some weight.
Applicant’s present circumstances and Australia's non-refoulement obligations: For the reasons set out in detail above, I have found that the applicant’s wife suffers from [Condition 1] and [another major condition] for which she is receiving medical treatment. I have accepted she has found solace in [Church 1], and that her Christian faith has become an important part of her life. I have accepted that the applicant himself has also converted to that faith, attributing his wife’s relative recovery from the worst symptoms of her [illness] to the solace and support she receives from the church. I have found that if returned to Iran, there is a real chance the applicant and his wife will be subjected to systematic and discriminatory conduct amounting serious harm from the Iranian authorities for the essential and significant reason of their Christian religion. Therefore I have found he meets the criteria set out in s.36(2)(a) and that his removal from Australia would be in breach of Australia’s non-refoulement obligations.
Best interests of the child and the Convention on the Rights of the Child: For the reasons set out in detail above I have found that if the applicant’s visa is cancelled, the visa of his son will be cancelled under s.140 of the Act. The applicant’s [daughter] is an Australian citizen, but is the only member of her immediate family in that position. I have found it is in the best interests of the applicant’s son and daughter in Australia to remain living in Australia with both parents. For the reasons set out above, I am obliged by the Department’s Policy Manual to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the Convention on the Rights of the Child (CROC).
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.
Alison Murphy
Member
Subsection 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104 or 105 or with subsection 107(2) of the Migration 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 their circumstances.
The exercise of the cancellation power under section 109 of the Migration Act is conditional on the Minister issuing a valid notice to the visa holder under section 107, giving particulars of the alleged non-compliance. If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·     the correct information;
·     the content of the genuine document (if any);
·     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 circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
Whilst 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: Minister for Immigration and Citizenship 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 Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.
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.

[2018] AATA 4011

27 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction