1713881 (Refugee)

1713881 (Refugee) [2019] AATA 6700 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713881
COUNTRY OF REFERENCE:                   Iran
MEMBER:Michael Hawkins
DATE:25 September 2019
PLACE OF DECISION:  Brisbane
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 25 September 2019 at 4:14pm

CATCHWORDS
REFUGEE – protection visa – Iran – cancellation – imputed political opinion – wife supported opposition candidate – incorrect answers – voluntarily travelled to Iran while on protection visa with no consequences from Iranian authorities – credibility issues – fabricated evidence – young family – best interests of children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 109, 107, 116
Migration Regulations 1994 (Cth), r 2.41
Statutory Declarations Act 1959 (Cth), s 11

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

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 she believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
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 of the Act in the following respects: 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.
The delegate concluded that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 41, 42, 43, 44, 45 and 46 of the form 866C in his application for a visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 43 on the Departmental file BCC2015/1818634 has particularised information deemed to be in breach of s.101(b) of the Migration Act.
The NOICC indicates on 16 May 2011 the applicant arrived on Christmas Island as an unauthorised offshore maritime arrival claiming to be an Iranian citizen and seeking protection in Australia. The applicant was accompanied by his spouse, [Ms A].
The NOICC indicates that on 3 October 2011 the applicant had an interview with Immigration Advice and Application Assistance Scheme (IAAAS) agent. In that interview the applicant prepared a Protection Obligation Assessment submission and made the following statements regarding his claims for protection:
1. I am a [male] citizen of Iran, born in Esfahan, Iran. Please refer to the documents attached to my wife [Ms A]'s statement.
Country to which I do not want to return
2.I am afraid to return to Iran
Why I left that Country, including details of harm
3.I have read my wife's statement and I agree with contents.
4.My departure from Iran was a result of the threat that my wife received from our government authorities.
5.I understand that this threat occurred as a result of her political opinion.
6.I believe that as we are married, my political orientation would also have been called into question if I had remained in Iran.
7.We would not have left Iran if this had not happened. We had secure employment, sufficient income and there was no reason for us to leave the country. It is very difficult to get the position that my wife and I were in before this situation.
8.Most of our family remains in Iran. It was very difficult to leave them but the fear of persecution was so great. As a result of our departure my mother has suffered from serious illness. We would not have put here through this if we had any other choice
return to that countryI fear may happen if I What
9.I am scared for my wife's safety. As we are married I am concerned that the government will assume that I have the same political opinion. As I was the one who took her out of the country I am scare of my safety also.
was forced to return to that countryI mistreat me if /think will harm Who I
10.The government will be responsible for the harm which will come to us in Iran.
Why I think I will be harmed I mistreated if I return to that country
11.The situation got to such a high level. I am aware of what happens to other people in Iran I fear for our lives.
Why I think the country's authorities will not protect me if I am forced to go back to there
12.We fear the authorities - they will not protect us.
The NOICC notes that the applicant made and signed a statutory declaration stating:
'I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s11 of the Statutory Declarations Act 1959 (Commonwealth), and I believe that the statements in this declaration are true in every particular. '
On 27 October 2011 a Protection Obligations Evaluation (POE) found that the applicant and Ms [A] were not persons to whom Australia owes protection. The NOICC noted that at the appeal the applicant noted the following:
‘Mr [B] has been in contact with his parents via their neighbours' telephone as he is aware that their own telephone line may be tapped. His parents informed him that Ettela'at officers have been visiting the family home. Initially they asked about the claimant's whereabouts. Subsequently they informed the family that they were aware that the claimants were in Australia and accused his parents for helping them to depart. They exerted pressure on his parents to encourage the claimants to return to Iran. '
The NOICC noted that at an appeal on 8 April 2012 the Independent Protection Assessment (IPA) assessed that the applicant and his wife were persons to whom Australia has protection obligations.
On 27 June 2012 the NOICC noted that the Minister lifted the bar and the applicant lodged a Protection visa application.
On 28 June 2012 the applicant lodged a Protection visa application. In support of the application the applicant provided the following information to questions:
Question 41. Country to which I do not want to return.
The applicant answered; 'I am afraid to return to Iran'.
Question 42. Why did you leave that country, including details of harm.
The applicant stated; 'I have read my wife’s statement and I agree with contents’ the statement the visa holder's wife submitted in her XA866 Protection visa application to support her protection claims.
In his statement the applicant stated the following in regard to why he and his wife departed Iran:
My departure from Iran was a result of the threat that my wife received from our government authorities.
I understand that this threat occurred as a result of her political opinion.
I believe that as we are married, my political orientation would also have been called into question if I had remained in Iran.
We would not have left Iran if this had not happened. We had secure employment, sufficient income and there was no reason for us to leave the country. It is very difficult to get the position that my wife and I were in before this situation.
Most of our family remains in Iran. It was very difficult to leave them but the fear of persecution was so great. As a result of our departure my mother has suffered from serious illness. We would not have put her through this if we had any other choice.
Question 43. What I fear may happen if I return to that country?
The applicant answered; I am scared for my wife's safety. As we are married I am concerned that the government will assume that I have the same political opinion. As I was the one who took her out of the country I am scare of my safety also.’
Question 44. Who I think will harm/mistreat me I was forced to return to that country? The applicant answered; 'The government will be responsible for the harm which will come to us in Iran.’
Question 45. Why I think I will be harmed/ mistreated if I return to that country?
The applicant answered; 'The situation got to such a high level. I am aware of what happens to other people in Iran, I fear for our lives'.
Question 46. Why I think the country’s authorities will not protect me if I am forced to go back to there.
The applicant answered; 'We fear the authorities – they will not protect us'.
The applicant then made and signed the following statutory declaration:
‘I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offences under s.11 of the Statutory Declarations Act 1959 (Commonwealth), and I believe that the statements in this declaration are true in every particular’.
The NOICC notes that on 3 July 2012 on the basis of this information as well as meeting all other relevant criteria the applicant and his wife were granted subclass XA-866 Protection visas.
The NOICC notes that on [a certain date] the applicant’s wife gave birth to his [child] [Child 1] in Australia.
The NOICC notes that [in] September 2013 the applicant departed Australia to [Country 1] and returned [in] January 2014 after spending four months overseas. The applicant indicated on his passenger card that he had spent most of his time in the [Country 2].
The NOICC notes that [in] March 2015 the visa holder departed Australia with his wife and [child] and indicated on his outgoing passenger card that he was travelling to [Country 3] for [a number of] days for a holiday. Prior to departure the visa holder was questioned by departmental officers regarding his travel. During this conversation the visa holder's wife presented a travel itinerary that confirmed that he was travelling to Iran with his wife and [child] ([March] 2015 to [April] 2015).
The NOICC notes that [in] April 2015 the visa holder returned to Australia with his wife and [child]. The visa holder indicated on his incoming passenger card that he had spent most time in Iran.
The NOICC notes that Departmental records indicate the applicant’s wife made two other trips to Iran with their [child]. The details of travel are as follows:
·[January] 2013 to [January] 2014 (approximately one year);
·[February] 2014 to [July] 2014 (approximately five months).
The NOICC notes that Country Information advises that Iran is a regulated country whereby the movements and actions of its citizens are heavily scrutinised.
The NOICC notes that since being granted his Protection visa, the applicant has returned to Iran with his wife and [child] and has also been issued with official documentation from Iran. It appears that the applicant and his wife have had multiple engagements and contacts with the Iranian authorities in their real identities since his visa grant. This process would have required the applicant and his wife to provide their details to the Iranian government thus alerting them to their circumstances and whereabouts. The delegate noted this occurred within six months of the grant of his Protection visa. The delegate noted that this behaviour is not consistent with the applicant's adverse profile as he had claimed in his Protection visa application and demonstrates that he did not hold the claimed adverse political as stated in his application.
The NOICC notes that Country Information advises that Iran's monitoring system of persons entering and exiting the country is sophisticated. By voluntarily returning and engaging with the Iranian authorities, if the applicant and his wife held the adverse political profile as stipulated in his protection visa application and were of interest due to his wife's political profile by a government agency they would have most likely been apprehended by government authorities prior to departing or arriving in Iran. The delegate noted in his protection visa application the applicant stated that he feared harm from the Iranian authorities due to his alleged imputed adverse political opinion.
The NOICC notes that the applicant’s behaviour is not consistent with his claimed adverse political profile and was not of interest to the Iranian authorities as he previously stated in his claims for protection. The delegate notes that the applicant has voluntarily returned to Iran without any apparent consequence from the Iranian authorities which undermine his claims for protection.
The NOICC notes that the delegate considered the applicant has not complied with s.101(b) of the Act as he has provided incorrect answers to questions 41, 42, 43, 44, 45 and 46 of the form 866C in his application for a Protection visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with s.101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC through his representative in a submission received by the Department of Immigration in an email dated 11 July 2017.
The Delegate noted that that applicant had engaged two different migration agents since the issue of his NOICC on 25 June 2016.
32.In his response to the NOICC provided on 4 August 2016 with the assistance of migration agent [Mr C] from [Firm 1], the applicant provided submissions and supporting documentation including the following:
·     [Firm 1] letter dated 4 August 2016;
·     Joint statement from the visa holder and his wife [Ms A];
·     Scanned translated psychiatrist certificated dated 1 March 2015 for Ms [D];
·     Scanned copy of the applicant's Iranian Passport;
·     Scanned copy of lranian Passport for [Ms A];
·     Scanned copy of Iranian Passport for [Child 1];
·     Scanned copy of Iranian Passport for [Child 1];
·     Translated Birth Certificate father for [Mr E]; and
·     Translated Death Certificate for [Mr E].
The delegate noted that the applicant provided the following submission in response to – ‘if no, reasons why the applicant disputes that there was no non compliance’:
1.    After we fled Iran, [Ms A’s] father (Mr [E]) became very depressed and was in deep anguish as to whether he would see us again while he was still alive. He became very depressed and mentally stressed.
2.    In 2012, we applied for a visiting visa for [Ms A]'s parents twice and both times our applications were refused. At around that time we had our first child and due to us being far apart from [Ms A]'s father, he became very sad and went deeper into depression due to the reality that he could not be close to his [grandchild] (our child).
3.    About one month after our [child] was born, Mr [A] had a massive [medical incident] and [was severely impacted]. He suddenly became totally disabled, bed ridden and in need of total care by others.
4.    I ([Ms A]) loved my father very much and on hearing the news of his massive [medical incident], I felt compelled to get to him as fast as I could as he might die very soon. I could not think about anything other than getting to my family and being with them.
5.    We had no proper legal advice when we received our protection visas. We didn't clearly know that we were banned from going to Iran; rather, we were under the impression that because we were refugees we should avoid going to Iran as much as possible, and if we did go to Iran we thought we had to be careful in order to not fall into the hands of the Iranian authorities.
6.    For me ([Ms A]), it was a choice between staying here and leaving my father to die without seeing him or taking the risk with the authorities in Iran, and I took the risk as my love for my family came first. My husband ([Mr B]) supported me as I was under immense stress and sadness.
7.    When I ([Ms A]) got to my mother's home in Iran I was devastated to find my father almost totally paralysed and in need of help for the most very basic of things including personal care and hygiene. I found my mother in a state of shock and almost everyone being beside themselves. I had to take charge and take a stand to help my father and look after him.
i.My ([Ms A]'s) father always loved to have a grandchild so I took our [child] to Iran for my father to see her. Unfortunately he was paralyzed and could not hold his grandchild. It was very sad for him and for us all
8.    My ([Ms A]'s) mother had to get back to paid work in order to maintain their finances. I took care of my father at home or in the hospital. He stayed alive for about a year and then passed away. I stayed in Iran for a few more weeks to help with my mother to go through her grieving process before I left her to come back to Australia.
9.    Not long after our return to Australia, [Ms A’s mother] fell into severe depression and had to be under medical treatment. We did not want to see her perishing in the sadness and pressure of losing her life companion. The treating doctor had told her that she should not be living alone.
10. I ([Ms A]) had to rush back to Iran to be with her. I took our [child] with me to assist her in giving hope and a positive outlook on life and to help her recover from depression.
11. I ([Ms A]) stayed there for about 5 months until she recovered enough to be able to take care of herself. I came back to Australia.
12. After a while [Ms A’s mother] started to fell back into depression and her mental health deteriorated. We were very concerned about her future. We could not let my mother fall into the same situation. We decided to go and visit her and be with her to help her recover as quickly as possible. We travelled with our [child] and we stayed for about a month until she felt better and we could leave her, trusting that she would be able to manage her situation.
13. We apologise to the Australian government and plea that they consider our circumstances compassionately. We did not go to Iran for having a holiday, family reunion or for having a fun time. Rather, we went there due to the severe medical condition of our father who had become paralysed before finally passing away, and then also due to severe health condition of our mother.
14. We now realize that we took a great risk by entering and exiting Iran. We were not captured or detained at the airport. However that does not mean that our life is no longer in danger in Iran, or, that we have provided incorrect information or unreliable statements for protection. To be safe, we even tried to keep low profiles whilst in Iran as much as we could.
15. I ([Ms A]) received an international driving license while in Iran, but that did not involve direct interaction with the authorities. Please note that when /fled Iran to seek asylum I had an Iranian issued International driving license. When I returned to Iran it was due for renewal. My mother got a form for renewal and !filled it in. I received the new license by postal delivery.
16. We only took the risk to go to Iran because our father (Mr [A]) was dying and later because our mother (Mrs [A]) was severely depressed. These factors were compelling and beyond our control. Even the length of time we had to stay was dictated exclusively by the factors pertaining to their health.
17. We didn't know that we could have asked the department for special permission to leave to Iran which we now deeply regret.
18. We apologise to the government of Australia for not having been upfront and honest in our responses on the departure cards or the departure or arrival interviews. We did not think that writing a wrong answer on departure or arrival card will be contravening a migration law that can have such a severe consequence. This misunderstanding was due to our lack of English comprehension.
19. We had not received proper legal advice about our protection visa conditions when we were originally granted the visas, and therefore did not exactly know what we could or could not do.
20. I ([Ms A]) felt that it wasn't right for me to fly back to Iran after finally having received a protection visa due to the extent of my problems in Iran. However I never knew that I was contravening laws and regulations by travelling to Iran. This is why I was mistakenly so cavalier about it.
21. We are also frustrated as to why we were not warned or reprimanded the first time we contravened the migration law. This strikes us as unfair. We were not aware of our contravention and its serious nature and no one, including the customs or officials, brought that to our attention. It was almost as if they wanted to see us fail and contravene the law, rather than assist us to understand how to obey the law.
22. Our child was born in Australia and she is an Australian citizen. It is her right to live in her country of citizenship. Also she was too small to decide whether she wanted to make the trip with us. If anything, she was travelling with us without her wish. She did not voluntarily travel to Iran and cannot be punished for that. She must be allowed to live in her country of citizenship.
23. Also, we as parents and legal guardians of our child. She as a child and as an Australian child has the right to have the care of her parents. We must be able to be here to cater for her emotional, financial and personal needs.
24. We plead you to look at our case compassionately and to use your discretion to not cancel our protection visas.

In his response to the NOICC provided on 4 October 2016, with the assistance of a second migration agent [Ms F] from [Firm 2], the applicant provided submissions and supporting documentation including the following:
·[Firm 2] letter dated 4 August 2016;
·Statutory Declaration from the applicant and his wife dated 4 October 2016;
·[College 1] - Diploma of [Subject 1];
·Translated copy of Bachelor [Subject 2] - University Degree;
·[College 1] - internship statement - 2 February 2015;
·Translated attendance statement from [College 2];
·Translated attendance statement - [College 3];
·[College 4] ID;
·Birth Certificate- [Child 1];
·Baptism certificate - visa holder and wife;
·[Church] letter dated 27 September 2016;
· [Numerous] letters of support from community members; and
· Iran Country Information.
The delegate noted that the applicant stated the following in his statutory declaration in response to – ‘if no, reasons why the applicant disputes that there was non compliance’:
'Before I travelled back to Iran to see my father, we were desperately looking for some way that I could travel to Iran safely. My father-in-law eventually found a person in the ETELAAT office of [Named location] to remove our name from the airport black list. This is how we were able to enter the Iran airport without being discovered. My father-in-law had to sell off his apartments to raise the funds ([Amount] USD). When I entered Iran, my father-in-law transferred us from the airport to our city in south of Iran via his car.
In addition, 6 months before I travelled to Iran, my family changed their home address to another address because the worried that ETELAAT may come searching for us whilst we were there. My family were then located in a new address and no neighbours really knew who they were. Whilst we were living in Iran, we were living under cover and in secret. We did not exit our home or communicate with any old friends or relatives; no one knew I was in Iran (other than my immediate family). I was just located in the home looking after my dad. Also, I did not have to get in touch with any Government office to obtain the international drivers licence. This was issued by a travel agent that my mother-in-law organised…’
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 5 June 2017.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far that the applicant failed to give correct information in his Protection visa application.
The delegate noted that in his joint response to the NOICC on 3 August 2016 the applicant advised the following:
'We apologise to the Australian government and plea that they consider our circumstances compassionately. We did not go to Iran for having a holiday, family reunion or for having a fun time. Rather, we went there due to the severe medical condition of our father who had become paralysed before finally passing away, and then also due to severe health condition of our mother
We now realize that we took a great risk by entering and exiting Iran. We were not captured or detained at the airport. However that does not mean that our life is no longer in danger in Iran, or, that we have provided incorrect information or unreliable statements for protection. To be safe, we even tried to keep low profiles whilst in Iran as much as we could ....
We didn't know that we could have asked the department for special permission to leave to Iran which we now deeply regret
We apologise to the government of Australia for not having been upfront and honest in our responses on the departure cards or the departure or arrival interviews. We did not think that writing a wrong answer on departure or arrival card will be contravening a migration law that can have such a severe consequence. This misunderstanding was due to our lack of English comprehension.
We had not received proper legal advice about our protection visa conditions when we were originally granted the visas, and therefore did not exactly know what we could or could not do.
I ([Mr A]) felt that it wasn't right for me to fly back to Iran after finally having received a protection visa due to the extent of my problems in Iran. However I never knew that I was contravening laws and regulations by travelling to Iran. This is why I was mistakenly so cavalier about it.
We are also frustrated as to why we were not warned or reprimanded the first time we contravened the migration law. This strikes us as unfair. We were not aware of our contravention and its serious nature and no one, including the customs or officials, brought that to our attention. It was almost as if they wanted to see us fail and contravene the law, rather than assist us to understand how to obey the law.
Our child was born in Australia and she is an Australian citizen. It is her right to live in her country of citizenship. Also she was too small to decide whether she wanted to make the trip with us. If anything, she was travelling with us without her wish. She did not voluntarily travel to Iran and cannot be punished for that. She must be allowed to live in her country of citizenship.
Also, we as parents and legal guardians of our child. She as a child and as an Australian child has the right to have the care of her parents. We must be able to be here to cater for her emotional, financial and personal needs.’
The delegate then stated:
I note that the visa holder and his wife cited that 'we had not received proper legal advice about our protection visa conditions when we were originally granted the visas' as a reason why she repeatedly returned to Iran. I acknowledge the visa holder's response, however the issue isn't whether he received proper advice about his visa conditions, the issue is that his claims are not supported by his subsequent actions that involve:
·Applying and obtaining his Iranian passport from the Iranian Embassy in [City 1] in the name that he had been known by the authorities within approximately six months of being granted his Protection visa.
·Voluntarily travelling to Iran
·Travelling to Iran with his wife and infant [child].
As the visa holder supposedly held an adverse political profile and feared physical torture and degradation as an expected outcome from the authorities, his and his wife's actions are not consistent with their behaviour highlighted above.
The visa holder stated:
'We are also frustrated as to why we were not warned or reprimanded the first time we contravened the migration law. This strikes us as unfair. We were not aware of our contravention and its serious nature and no one, including the customs or officials, brought that to our attention. It was almost as if they wanted to see us fail and contravene the law, rather than assist us to understand how to obey the law.
The visa holder stated the following in relation to his Australian citizen child:
Our child was born in Australia and she is an Australian citizen. It is her right to live in her country of citizenship. Also she was too small to decide whether she wanted to make the trip with us. If anything, she was travelling with us without her wish. She did not voluntarily travel to Iran and cannot be punished for that. She must be allowed to live in her country of citizenship.
I note that the child in question is also an Iranian citizen as evidenced by her Iranian passport that was provided by the visa holder in response to her NOICC and has already lived a significant portion of her life (approximately 16 months) in Iran.
The visa holder stated the following in his statutory declaration in their ITOA submission made on 4 October 2016:
'I am a Christian refugee who has fled Iran. On top of this the problems I have with the Iranian Government are still there. The fact that I have been living "in Australia for so long and have converted to Christianity is a serious crime in Iran. In Iran, if you have converted to Christianity. this crime is punishable via life in prison or death. If we were to go back to Iran we would not be able to openly practice our faith and it would be very obvious that we are no longer Muslim.
In Iran the security is very good so it would be easy for the Iranian Government to find out that we have converted to Christianity. I am sure the Iranian Government would easily be able to find out what we have done in Australia and find out that we converted to Christianity (if we were returned to Iran). In Iran the Iranian Government has spies and associates everywhere. The neighbours would recognise that we are not attending Muslim rituals and they would report us. All people from Iran are put under a lot of pressure so - it would be a matter of time before a neighbour, colleague; boss, friend or even a relative reported you to the authorities. There is a big difference between myself going to Iran secretly to see my father and my entire family re-settling in Iran. If we were to re-settle in Iran we would have to obtain jobs, get a car, find a house and pit my children in school. In order to do this, we would need to put our identity on all documents and it would only be a matter of time before the Iranian Government found us.
If we were to return back to Iran, we would be required to tell them our full identities when we re-settle in order to live in a house, etc. We would also be interviewed upon arrival in Iran and their interviews are interrogations in Iran. They do not ask you of anything - they simply accuse you and issue you a sentence .....
...I spend all of my time raising my [children] and providing them the best life possible. I am very worried about my children if they were to live in Iran. If we returned to Iran, we would have no option but to take them with us. My children would be at great risk due to having Christian parents. I would only be a matter of time before the Iranian Government realised we converted. My oldest [child] now has two different nationalities (Australian and Iranian). Recently on the news the Iranian Government are detaining people with two different nationalities, once they return to Iran. The United Nations did ask the Iranian Government about this and they are avoiding the questions and blaming jurisdiction problems.....’
My children have a very normal and happy life in Australia. My children did not choose an Iranian heritage, they are Australian. They are Australian citizens who may be forced outside of their home country. As Australians, they have a privilege to grow up in a country where they can dance without having any guilt and draw without getting in trouble ....’
The visa holder has acknowledged the capabilities of the Iranian government and its security services in that they would be able to discover his alleged conversion to Christianity. The visa holder claims to have an underlying fear that his purported Christian faith would be revealed if he returned to Iran as a result of visa cancellation.
Additionally as the visa holder, his wife and infant [child] voluntarily returned to Iran several occasions suggests that they were not concerned that they would be arrested or harmed by the Iranian authorities and the welfare of their child.
Review Hearing
The Tribunal conducted a hearing on 1 August 2019.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his Protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a Protection visa regarding his Protection visa claims. The Tribunal noted that based on all of the evidence before her, the delegate proceeded to find that the applicant had provided incorrect information in his Protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his Protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the s.107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 3 July 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 28 June 2012 as having been read. The applicant agreed.
The applicant’s claim to protection was effectively through his wife’s claim that she had received a threat from the government authorities in response to her support for an opposition candidate in the recent elections. He claimed that as he was married to his wife, his political orientation would also have been called into question if he had remained in Iran. He would be imputed with her political opinion. The applicant confirmed that was the case.
The Tribunal confirmed with the applicant the following travel dates and places:
·     [September] 2013 to [January] 2014 - Iran;
·     [March] 2015 to [April] 2015 - Iran;
·     [March] 2016 to [April] 2016 - Holiday to [Country 4].
The applicant confirmed that he has [a number of] children who are Australian citizens and that he is separated from his wife. He stated that he separated from his wife in June or July 2017.
He confirmed that he lives at [Suburb 1] and that his wife and children live at [Suburb 2].
The Tribunal enquired of the applicant as to the access that he has to his children. He replied that he has access to [the] children on 95% of weekends.
The Tribunal put to the applicant that evidence from his wife suggests that he has very limited access. The applicant replied that at first that was the case, but in recent times his wife has been happy for him to have the children on weekends.
The Tribunal asked the applicant whether he had any criminal charges against him. He replied that he had no criminal charges but acknowledged the existence of certain Protection Orders, one being made [in] December 2017 but which was varied [in] August 2018 to enable access to the children.
The Tribunal enquired of the applicant about the nature of the Domestic Violence Orders. He replied that the Police claim that he hit his wife. He claims that he was acting in self-defence. He also stated that he has martial arts qualifications which have worked against him as his wife has argued that he is predisposed to aggression and violence. He stated that when the Domestic Violence Order was taken out against him, he did not have access to the children for [a number of] months.
The applicant stated that his wife is his first cousin. His mother-in-law is his aunt.
He stated that after he separated from his wife, he became depressed and didn’t want to go out. He went to [College 4] at the peak of his depression and that assisted in turning his life around. He stated that in November 2018 he moved into a new home at [Suburb 1] and can now have the children overnight. He spoke of his flatmate being available as a witness to attest to these access arrangements and offered video evidence of the access that he has and numerous texts between he and his wife arranging access.
The Tribunal asked the applicant about the state of the relationship of his and his wife’s families in Iran. He stated that his mother and his wife’s mother were sisters. He stated that the respective families in Iran are no longer talking to each other.
The Tribunal asked the applicant about his intentions in relation to his relationship with his wife. He conceded that divorce was inevitable.
The Tribunal discussed with the applicant his joint response to the ITOA whereby he claimed that they had bribed an official in Iran to enable their safe passage in and out of Iranian airports. The applicant agreed that a payment had been made but he had no evidence of the payment. The Tribunal asked about the source of the funds and whether he may have evidence of the sale of the properties which facilitated the payment. He said he may have evidence of the sales of his father’s property and went on to add that it was his father who paid the bribe. He added that he is sorry that it wasn’t raised at the first opportunity.
The Tribunal expressed its concerns about the nature of the bribe and how it might be that their names could be taken off a blacklist which would enable safe passage through the airport for as long as a particular employee worked at the airport and which could be for a period of five years. The Tribunal suggested that it all seemed a little far-fetched that a single employee would be empowered to facilitate their access through an airport given the numerous checkpoints that an entrant passes through when entering Iran.
The Tribunal discussed an extract of Country Information that emphasised the sophisticated security processes employed at Iran’s airports.
Country Information describes the process for passing through Imam Khomeini International Airport, Tehran:
“The first security check takes place upon entry from the public area into the terminal area for travellers only. The passenger’s luggage will be checked at this point. The luggage goes through a scanner and if anything looks suspicious, the Immigration police will take the person aside and open the suitcase. The passport of the person travelling is checked and the person passes through a detector (women and men go through separate detectors). This check is the responsibility of the Immigration Police.
After passing through the luggage check the passenger goes to the check-in counter. At the check-in counter, flight personnel will check in the passenger’s luggage, check the visa and issue a boarding pass. If anything is wrong in terms of visa or passport, the flight personnel will contact the Immigration Police.
After check-in, the passenger goes to a counter where Immigration Police conducts a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.
The passport and the exit visa are verified. The data of the passport holder appears on the screen, together with a photograph of the traveller. If the person is married and has children, the photos and names of his wife and children will also appear on the screen. If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen.
When the security check is completed, and if the person is allowed to leave Iran, an exit stamp will be stamped in the passport. The person travelling now enters the duty free zone.
Before entering the area with flight gates, yet another security check is conducted. This is a physical check where the hand luggage is scanned and the passenger goes through a metal detector. This security check is conducted by the Revolutionary Guards. The Immigration Police and the airline personnel conducted the previous checks.The very last check is done just before boarding, where the traveller shows his or her boarding pass. Airport personnel conduct this check.”[1]
“After leaving the aircraft the person enters an area with counters for passport checks. There are separate counters for foreigners and Iranians. The Immigration Police who are sitting inside a booth behind a glass window conduct this security check. The Immigration Officer scans the passport and registers all the personal data from the passport of the arriving passenger in the computer system. The personal information is already registered in the computer system. The information includes a photograph of the passport holder and this photograph appears on the screen. The Immigration Officer checks the validity of the passport and if the person is entering Iran on illegal grounds or has outstanding issues with the authorities he will be held responsible in accordance to Iranian law, rules and regulations.
If the passport cannot be scanned by the computer system, the Immigration Officer will enter the passport number manually.
According to Sajdrabi, the computer system is a few years old and has been able to identify forged visas, passports and other documents.”
[1] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, 87E00CD0EB83/0/iran_report_final.pdf?bcsi_scan_80CA22F9AD71C623=0&bcsi_scan_filename=iran_report_ final.pdf

The applicant replied that he was embarrassed about the situation.
The Tribunal noted that the claims in relation to the payment of the bribe had not been referenced at all in the response to the NOICC. The applicant replied that he wasn’t sure whether they had told the lawyer about the bribe. The Tribunal noted that this was inconsistent with the evidence of his wife who stated that the lawyer had been told but who had elected not to include it in the response to the NOICC, but rather to apologise to Immigration for returning to Iran without previous approval.
The Tribunal discussed the findings of the ITOA in relation to his claims to be a converted Christian.
The applicant stated that he had been baptised at [Suburb 3] and then he found a church at [Suburb 4]. He stated that he preferred the church at [Suburb 4].
In relation to his Christianity, he says he tends not to blame the Muslim religion, that his Christianity has enabled him to become more tolerant.
The Tribunal challenged the applicant that he had gone back to Iran on multiple occasions and was apparently not concerned about his Christian conversion. He replied that he was only there for a short time.
The Tribunal enquired about his children. He confirmed that they are not Christians and that he is allowing them to make their own choice. He acknowledged, however, that at present the children are indeed Muslim.
The Tribunal noted that the applicant appeared resigned to an inevitable divorce. The Tribunal asked the applicant, given that he may be divorced, whether he would then not be identified with his wife and her claimed political activities. The applicant responded that his political opinion will always be perceived as being carried through from his wife.
The Tribunal suggested to the applicant that he was exploiting his Christianity for the purposes of this hearing only, and that it did not appear to the Tribunal that the applicant had a genuine and ongoing commitment to Christianity. The applicant replied that he and his wife had tried to have children for some time and could not until they became Christian. They credit the fact of them being able to have children with their Christian faith.
The applicant concluded his evidence by stating that he only ever returned to Iran by reason of his love for his wife and in turn her love for her father.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[2]
[2] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[3] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[4] What Wilcox J said was subsequently applied in Singh v MIEA[5] and Housam Slayman v MIMA[6]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [7]
[3] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336
[5] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[6] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
[7] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[8] and Sun v MIBP[9]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[8] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[9] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
It is clear that the applicant has demonstrated ability to freely enter and depart Iran on two occasions and to cumulatively have lived there for approximately 5 months in total and with his wife and infant [child]. It is apparent to the Tribunal that he has managed to do so without any apparent issues in Iran. He was not detained or apprehended by the Iranian authorities when he arrived at, and departed, Iran airports where it is accepted that entry and exit procedures are sophisticated and where it is acknowledged that a person with an adverse profile would be unlikely to avoid detection.[10]
[10] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, 87E00CD0EB83/0/iran_report_final.pdf?bcsi_scan_80CA22F9AD71C623=0&bcsi_scan_filename=iran_report_ final.pdf
The applicant claims that his father paid a [bribe], which he sourced from the sale of properties, to have his name removed from the airport blacklist. The applicant has no evidence of the payment, nor of the sale of the said properties.
The applicant’s claim is consistent with an explanation provided in a submission made in connection with his ITOA. However, there was no reference to such payment of a bribe to have his name removed from a blacklist in response to the NOICC. Furthermore, the applicant has not explained how he knew he was on any such blacklist.
The Tribunal is satisfied that his claims relating to the payment of a bribe have been fabricated by the applicant and his wife at the time of them addressing the ITOA, and were so fabricated to overcome the Department’s concerns about their repeated travel to Iran. The Tribunal has grave concerns about the claim that his name could be removed from the blacklist in such a way as to facilitate multiple entries and exits over a period of five years whilst a particular employee was in a specified position. Whilst one piece of Country Information acknowledges that one woman was able to leave the airport through paying [a bribe] in advance, no Country Information has been adduced to support the applicant’s contention that a payment could be made in advance to cover multiple entries and exits over a defined period.
The Tribunal is satisfied that neither the applicant nor his wife holds the adverse political profile that he claimed in his Protection visa application.
Furthermore, the applicant applied for his Iranian passport from the Iranian Embassy in [City 1] about six months after the receipt of his Protection visa. The issue of such Iranian passport would alert the Iranian authorities to his potential return to Iran and would have heightened Iranian authorities’ awareness of him and his travel intentions. Coupled with the actual multiple returns to Iran clearly demonstrates to the Tribunal that the applicant did not genuinely believe that he was of adverse interest to the Iranian authorities and that he did not fear them.
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran on two occasions for four months and then for five weeks, as the basis for finding the applicant had provided incorrect information in his Protection visa application about his fears, risk and profile in Iran.
On the evidence before it, and it is for the reasons set out above, the Tribunal finds 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. Briefly, they are:
·     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.
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.
The correct information
The applicant’s wife claimed in her Protection visa application that she would be harmed or raped by the Ettelaat or the Iranian government if she returned to Iran because she was known to them because of her political activities in supporting an opposition candidate. The applicant claimed that he would, as her husband, be imputed with his wife’s political opinion.
The correct information is that the applicant and applicant’s wife were not known to the Iranian authorities and did not hold the adverse political profiles as claimed in their statements and Protection visa applications. Despite the claimed fears, the applicant’s wife travelled to Iran three times, departing Australia [in] January 2013, [February] 2014 and [March] 2015, and he travelled to Iran twice, departing Australia [in] September 2013, and [March] 2015, and they remained in that country without hindrance or harm from the Iranian authorities and returned to Australia without incident.
The content of the genuine document (if any)
The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The decision to grant the applicant his protection visa was based on him meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had been given incorrect answers about his claims in his application for the visa.
The circumstances in which the non-compliance occurred
Upon arrival in Australia via Christmas Island, the applicant was transferred to [City 2]. The applicant completed a protection visa application in [City 2] with the assistance of a Migration Agent, after a finding by the Independent Protection Assessment delegate. The Tribunal noted that the applicant’s claims in his protection visa application largely followed the findings of the Independent Protection Assessment delegate.
The present circumstances of the applicant
The Tribunal noted that the applicant now has [Child 1] and [Child 2].
The applicant advised that he and his wife were now separated and would be seeking divorce. He claimed that his wife lived at [Suburb 5] and he lived at [Suburb 1]. The Tribunal asked the applicant whether he was performing any community work at present. The applicant replied that he gives blood and plasma on a regular basis.
The Tribunal notes that the applicant claims to have converted to Christianity since the POE process. It notes his baptism at the [Suburb 3] Baptist Church.
The Tribunal notes the very detailed submission made by the applicant’s former Representative during the ITOA process. It also notes the letters of support provided during that process.
The Tribunal has the strongest reservations about the applicant’s claims to a genuine and ongoing commitment to Christianity.
The Tribunal notes that the applicant was able to successfully hide the fact of his Christianity for the time he was in Iran.
The Tribunal notes that despite the Christian faith of he and his wife, neither child is a Christian. No reason was provided as to why he should have a genuine Christian faith but that her children would be of the Islam faith, other than he wants the children to have a choice. The Tribunal does not believe this sits with the fact that the children are presently Muslim. It appears their choice has not extended to that extent.
The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act
The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless claimed to have sought out and obtained an Iranian passport to use for international travel.
Any other instances of non-compliance by the applicant known to the Minister
The applicant advised that there had been no breaches of his visa terms.
On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance
The Tribunal notes that the applicant was granted a Protection visa in 2012, and that as such, it has been around seven years since the non-compliance. The applicant has not returned to Iran since 2015 and has been residing exclusively in Australia for around four years. The Tribunal notes that the applicant’s visa was cancelled in June 2017 and that two years have since elapsed.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant advised that he has not breached any law, not even a traffic offence. The Tribunal notes the existence of Domestic Violence and Protection Orders.
On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community
The applicant reiterated that he gives blood and plasma regularly as he has a very rare blood type.
The Tribunal accepts that the applicant has worked and contributed to the taxation system. The Tribunal also accepts that the applicant has integrated into his community and has formed a number of close friendships.
Whether there would be consequential cancellations under s.140
There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
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
The Tribunal is satisfied that the applicant’s children are entitled to Iranian citizenship.
Australia is a signatory to the Convention of the Rights of the Child (CROC), and has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration. The Tribunal notes this requires a decision-maker to have regard to the consequences of cancellation, including whether a child will be separated from a parent.
In the applicant’s circumstances, he will not be separated from his infant child as the outcome of the review will be the same as the outcome of the review of his wife’s application. The Tribunal acknowledges the concerns the parents have for the children in terms of the comparative freedoms the children may have in Australia, and takes that into consideration.
If the applicant’s visa is cancelled, he would be subject to s.46(1) of the Act, barring him from applying for a further visa in Australia (including a Bridging visa) unless the Minister exercises his non-compellable discretion. Further, if the applicant’s visa is cancelled, he would be subject to the s.48A(1B) bar. He would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.
The Tribunal understands that an International Treaties Obligations Assessment has been conducted in relation to the applicant and has determined that the applicant does not have a real chance of being subject to significant harm should he be returned to Iran. It has also determined that the applicant is not a person in respect of whom Australia has non-refoulement obligations.
In considering the family unity principles and the best interests of the children, the Tribunal notes that the applicant and his wife have separated and have been separated since June 2017.
This is a considerable change of circumstances since the decision of the delegate and the ITOA decision.
The Tribunal has noted the various Domestic Violence Orders and Temporary Protection Orders.
The Tribunal, having also heard the review of the cancellation of visa of the applicant’s wife, is satisfied that the wife is also committed to a course of seeking divorce.
Whilst there was some inconsistency as between the wife’s and husband’s evidence in their respective hearings as to the amount of time the husband has access to the children, the Tribunal accepts that the applicant’s wife has primary custody of the children and that the applicant has agreed access to the children on weekends and if the children are sick and unable to attend school/childcare.

The Tribunal is satisfied that whilst arrangements can rarely be perfect, the applicant’s wife has custody of the children and the applicant has some access to the children. Notwithstanding what the actual arrangements may be, the Tribunal is of the view that whatever the shared access arrangements are, the fact of shared access is in the best interests of the children.
The Tribunal has already determined to set aside the cancellation of the applicant’s wife’s Sub-Class 866 (Protection) Visa. The Tribunal did so after a consideration of Country Information submitted by the applicant’s wife’s Representative in relation to Article 1169 of the Iranian Civil Code. The Tribunal formed the view that there was a significant risk that the Iranian Civil Code may be applied in such a way to deny custody and/or access to the children by the applicant’s wife. The Tribunal was not satisfied that such a denial of access would be in the best interests of the children. The Tribunal determined that even a risk of the applicant’s wife losing custody and access to her children is not, in the view of the Tribunal, in the best interests of the children.
The same is equal for the applicant. The Tribunal is of the view that in circumstances where the applicant’s wife and children are entitled to remain in Australia, it would be unreasonable for the applicant’s cancellation of visa not to also be set aside. To not do so would be to facilitate the denial of access by the applicant to the children which equally is not in the best interests of the children.
Conclusion
Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time. Since arriving in Australia, he and his wife have had two Australian-born children. The applicant has no known criminal record.
However, given all the findings herein, including the applicant’s willingness to return to Iran on two separate occasions, and for a cumulative period of 5 months, and to then attempt to deceive the Australian authorities by fabricating evidence as to how he entered and exited Iran, the Tribunal is satisfied the applicant is not a generally credible witness.
Were it not for the fact of the applicant’s separation from his wife, and the commitment to divorce by each of them, and the fact of the risk of there being separation from the children as described, the Tribunal would not have exercised its discretion in the applicant’s favour.
However, as reasoned in paragraphs 114 to 121 above, the Tribunal is satisfied that the operation of Iranian law in relation to custody and access arrangements in the event of divorce in Iran pose an unacceptable risk to the best interests of the children and it is on this basis only that the Tribunal accepts that it is unreasonable that the applicant’s visa be cancelled.
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.
Michael Hawkins
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 6700

25 September 2019

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