1716001 (Refugee)

1716001 (Refugee) [2018] AATA 4206 (31 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716001
COUNTRY OF REFERENCE:                  Other
MEMBER:Rosa Gagliardi
DATE:31 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 August 2018 at 3:08pm
CATCHWORDS
Refugee – protection visa cancellation – other – stateless Kuwaiti Bedouin – unauthorised maritime arrival – whether applicant was an Iranian citizen at the time of application – fraudulent information provided – applicant appeared to misrepresent his identity and his citizenship – credible concerns – interests of the children – lengthy period stay in Australia – contribution to the community – no jurisdiction with respect to the other applicant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 46, 48,101, 102, 103, 104, 105, 107, 109, 140,
Migration Regulations 1994, rr 2.4, 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20

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 first named 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 he/she was satisfied that there had been non-compliance with section 101 of the Act. In considering the circumstances under r.2.41 the delegate found that the reasons to cancel the visa outweighed the reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The first named visa applicant referred to in this decision as “the applicant” appeared before the Tribunal on 24 April 2018, to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant’s spouse [whose] visa cancellation was considered separately by the Tribunal, although the hearings were held jointly. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. 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.
Background
On 11 September 2015 the parties were interviewed by an officer of the Department at [an] Airport. During that interview it was advised that they would be travelling to Tehran and the first named visa applicant provided an itinerary showing they were travelling to Tehran from [September] 2015 to [October] 2015. The applicant’s wife’s passport was issued [in] 2013 by the Iranian embassy in Canberra. Under “observations” it is noted that her last lawful departure from Tehran, Iran was 12 May 2010 prior to arrival in Australia on 18 June 2010.
The passport in respect of the first named visa applicant, [was] issued [in] 2013. The Iranian passport was issued to him by the Iranian embassy in Canberra. The passport included an ID number and under the heading “Observations” it was stated that the applicant’s last lawful departure from Tehran was [in] May 2010, prior to his arrival in Australia on 18 June 2010.
In terms of the second named visa applicant’s passport, it was issued [in] 2013, by the Iranian embassy in Canberra, and under the heading “Observations” it was that noted his last lawful departure from Tehran, Iran was [in] May 2010, prior to his arrival in Australia on 18 June 2010.
Since being granted protection visas, all three applicants have travelled to Iran as set out on their incoming passengers cards in the following periods:
·Departed Australia on 25 June 2013 and returned on 2 September 2013;
·Departed Australia on 25 March 2014 and returned on 4 May 2014; and
·Departed Australia on 11 September 2015 and returned on 28 January 2016.
Since the applicants were granted their protection visas on 18 May 2011 they have travelled back to Iran for a total period of approximately 8 months.
The protection visas were granted on the basis that the first named visa applicant satisfied the Minister that he engaged Australia’s protection obligations under the Refugees Convention.
Was there non-compliance as described in the s.107 notice?
The cancellation decision by the Department
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 ss.101(a) and (b) because the first named visa applicant claimed in the 866 form that he was a stateless Kuwaiti Bedouin who had habitually resided in Iran.
Other statutory declarations provided by the applicant asserted that he was a stateless Kuwaiti Bedouin and that he was owed protection from Australia. He claimed that he travelled to Australia on a false passport arranged by his father. This was because as a stateless person he was not entitled to a passport and relevant documentation. Shortly after the applicant was granted a Protection visa in May 2013, the applicant and his wife and child proceeded to travel to Iran on three occasions. The applicant travelled back to Iran initially on 25 June 2013 on an Iranian passport, holding Iranian citizenship.
The applicants have all travelled out of Australia, including the applicant, on genuine Iranian passports issued by the Iranian Embassy in Canberra, Australia. The passport in respect of the first named visa applicant, [was] issued [in] 2013. In terms of the second named visa applicant’s passport, it was issued [in] 2013. The applicant asserted that the Iranian officials discretionarily and randomly granted him citizenship in 2013 as a result of him being married to an Iranian citizen. The applicant claimed that he had first applied for citizenship in 2004 after marrying his spouse. He did not know why the Iranian authorities had waited for such a lengthy period to grant him citizenship. No evidence was ever provided that the first named visa applicant had ever applied for Iranian citizenship in 2004, or that it had never been conferred on him automatically by virtue of his father’s Iranian citizenship. Nor was there evidence that on travelling to Australia for the first time in June 2010, as an unauthorised maritime arrival, he did not come on an Iranian passport. Instead the applicant contends that he had been an Arab Kuwaiti stateless Bedouin in Iran when he applied for protection.
The delegate then went on to find:
The visa holder’s possession of an Iranian passport does not support his claims of statelessness and strongly suggests that he is an Iranian citizen and was so at time of his Protection visa application.
Country information suggests security checks are undertaken at the passport application stage. Furthermore, country information suggests that it is highly unlikely fraudulent Iranian passports will pass through Tehran airports, as there are stringent checks.
The visa holder’s Iranian passport (Number: xxxx) lists his last lawful departure from Tehran as [date] May 2010, prior to his arrival in Australia on 18 June 2010. It therefore appears that he departed Iran legally on his own passport as an Iranian citizen, which demonstrates that his statement that he departed Iran using false travel documents is incorrect.
I also note that the visa holder requested to amend his name to [the applicant’s name] [in] January 2014 based on a deed poll amendment. It appears that this was done by him to make it in line with his correct identity on Iranian records. This is evidence that the visa holder did not provide his correct name as per Question 1 of the form 866C above.
The visa holder’s Protection visa was granted on the basis that he satisfied the Minister that he engaged Australia’s protection obligations under the Refugees Convention. His status as a stateless person was fundamental to this determination. As the incorrect information he provided was material to this determination it appears he may not have engaged Australia’s protection obligations.
The delegate then considered whether the visa should be cancelled. The delegate considered the applicant’s responses and assessed those responses with regard to the prescribed circumstances in r.41:
R.2.4(a) – the correct information – the delegate found that the correct information is that the visa holder may have had stateless background at some point but that on arriving in Australia and on applying for protection he was an Iranian citizen. The Department accepted that he was born in Kuwait, which is mentioned in his Iranian passport. The applicant instead claimed that in 2004 he requested Iranian citizenship because he married an Iranian citizen. Despite evidence to the contrary, the applicant claimed he used to hold a birth certificate from Kuwait, his nationality of birth, which indicated he is stateless, but the visa holder gave this certificate to a Department of Migration and Border Protection delegate at [a] detention centre and it was never returned.
R.2.41(b) – the content of the genuine document (if any) – the delegate found that this was not relevant to the decision.
R.2.41(c) 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 delegate found that the decision to grant the applicant a Protection visa was based on the applicant purporting to be a stateless Kuwaiti Bedouin which was incorrect.
R.2.41(d) – the circumstances in which the non-compliance occurred – the delegate found that the evidence before him/her indicated he deliberately concealed his Iranian citizenship from the Department to increase his chances of being granted the visa and the circumstances in which the non-compliance occurred did not mitigate the visa holder’s non-compliance. The applicant put forward that he had to return to Iran as his wife was going through a very stressful time with the pressure of her family. The wife’s mother was not happy about her journey to Australia. The applicant’s wife is currently seeing a doctor to assist with medical problems. The applicant also missed his family; it was the first time he had left them for a long period of time. The applicant tried to reconcile the dispute among his family on one side, and his wife’s family on the other side. The dispute was based on the fact that the applicant’s wife left Iran without her family’s permission. Her family considered that the applicant and his family pushed his wife to leave Iran. The delegate did not place favourable weight on these reasons for non-compliance, and in any event they are not relevant to the circumstances in which the applicant appeared to misrepresent his identity and his citizenship.
R.2.41(e) – the present circumstances of the visa holder – the delegate noted that the applicant at that time was the father of two children, the second named visa [applicant], and [another]. The second named applicant is a permanent resident. The youngest child then held Australian citizenship by birth. The applicant had worked as [an occupation] for the last five [years]. He benefited his town in [Town 1] as well as his family.
R.2.41(f) – the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act - the Department did not comment on this issue.
R.2.41(g) – any other instances of non-compliance by the visa holder known to the Minister – the delegate noted that there were no other instances of non-compliance known. He provided an Australian Police Check confirming this.
R.2.41(h) – the time that has elapsed since the non-compliance – the delegate noted that the applicant had lived in Australia since June 2010 since the non-compliance and had resided in Australia for six years and two months, excluding two months in Iran. The delegate considered that the passage of this time did not substantially mitigate the non-compliance.
R.2.41(j) – any breaches of the law since the non-compliance and seriousness of those breaches – the delegate noted that there were no known breaches of the law since the non-compliance.
R.2.41(k) – any contribution made by the holder to the community – the delegate noted that the applicant was supporting two children, one of whom was a permanent resident, while the other has Australian citizenship by birth. It was noted that the applicant was a hard working self-employed person whose primary goal was to strenuously fortify his children and provide them with their daily needs. He has also been supportive to the low income community members by not charging high rates, compared to other shops.
In relation to the mandatory legal consequences resulting from a cancellation decision, the delegate noted that the applicant has applied for Australian citizenship, therefore cancellation of his current visa will lead to a refusal of this application. If the visa holder’s Protection visa is cancelled, he would be subject to section 46(1) of the Act, barring him from making a valid application for a further visa.
The delegate further noted that if the visa holder’s Protection visa was cancelled, he would be subject to Section 48A(1B) of the Act which bars him from making a further application for a Protection visa while in the migration zone. The applicant’s wife and oldest child were applying for Australian citizenship; therefore cancellation of his current visa would lead to a refusal of their applications for Australian citizenship. Another consequence of a cancellation decision is that the visa holder may be subject to indefinite detention because Iran refuses to take back asylum seekers.
In relation to whether there are persons in Australia whose visas would, or may be cancelled consequentially - The applicant’s wife was granted the protection visa on the basis that her husband is a stateless person. The visa applicant’s son was granted the protection visa on the basis that his father is a stateless person.
In relation to whether Australian has obligations under relevant international agreement that would or may be breached as a result of the visa cancellation, the Department noted that the visa holder has two children in Australia. As a signatory to the Convention on the Rights of the Child (CROC) Australia has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration. The visa holder’s children will have more opportunities in Australia due to the limitations in accessing education and health care in Iran. In this case, the best interest of the children would be affected. The visa holder’s youngest child, who is an Australian citizen would be incapable of adapting to a new environment in Iran if he returns with his father there. The youngest child would also lose his Australian citizenship as Iranian law does not recognise dual citizenship. The visa holder is concerned that his children would not be able to adapt to the Iranian education system due to a difference in language, curriculum and the standard of English.
In relation to other matters the delegate noted that the applicant’s [professional] skills would not provide enough income in Iran to support his family, and there were concerns about accessing education and health care if returned to Iran.
In response to the Department’s notice to cancel, the applicant provided:
-    Primary school reference letter;
-    Birth certificate for youngest child at the [time]
-    Certificate of school education [for] the second named applicant;
-    Several character references, including from a medical centre; and
-    Certificate of Registered Premises for the applicant.
The hearing
The applicant maintained at hearing that when he came to Australia and applied for protection he was a Kuwaiti Bedouin who was stateless. He stated that he had first applied for Iranian citizenship soon after he married (given that he was eligible to apply) in 2004 but that he had not heard anything until it was finally granted in 2013.
The Tribunal noted that had the applicant made an application in 2004 to become an Iranian citizen there would be relevant documentation to reflect that he had done so whenever that might have occurred. The applicant stated that it had been a long time and they took the paperwork from him, but he did have proof of his current citizenship. It was with him. The Tribunal remarked that it was well aware that the applicant was now an Iranian citizen but he asserted that he obtained citizenship in 2013 so there would be a file or documentation setting out how a decision was made to grant citizenship by the authorities after the applicant’s initial request in 2004. For example, in Australia there were character requirements and so forth. The applicant stated that in 2004 there were no files. The Tribunal noted that even if a file did not exist, there would be some evidence of his application to become a citizen and when this occurred. The applicant stated he had no documentation only his citizenship. He added that the authorities had the paperwork and that the Tribunal could inquire for him with the Iranian authorities.
The Tribunal suggested that had he genuinely been stateless, being granted citizenship would have been prized by him and he would have kept copies of all the relevant documentation lodged with the authorities at the time he applied for citizenship. The applicant stated that he did not know. All he knew was when the documents were issued. The Tribunal clarified again whether the applicant had any evidence that he had initially applied for citizenship in 2004. The applicant stated that he had sold his house and furniture and he did not know whether they were there.

The Tribunal asked whether the applicant had thought of going to the Iranian embassy in Australia to see whether they could assist him procure evidence of him having applied for citizenship as far back as 2004. He stated he did not know whether they would accept that. He would have to see. The Tribunal emphasised that it was not required to make the applicant’s case for him and that it was for him to ensure that the Tribunal had all the evidence that would support his claims that he did not fill in his application in a way that meant he did not provide incorrect information. The Tribunal noted that it would have expected that if probative evidence existed to support his claims that he would have made it available to the Tribunal. The applicant stated, “What do you want me to do?” The Tribunal explained again.
The Tribunal noted that the applicant’s father was named on his citizenship papers as being Iranian, and therefore the applicant would have automatically been granted citizenship through his father. In addition his eldest son was an Iranian citizen and asked him to explain how that could be, if he had been a stateless Bedouin on arrival in Australia. The applicant responded that his father “acquired” that citizenship. The Tribunal noted that whether or not his father had acquired citizenship, it meant that his father held citizenship which he could pass on to the applicant. The applicant stated that he applied, and his wife was an Iranian citizen so he obtained citizenship. The Tribunal noted that if he were stateless and he had applied in 2004, at the very point of having been granted Protection he was able to become an Iranian citizen. Did the law change for example? The applicant stated he applied and his wife was an Iranian citizenship and he was granted citizenship.
The Tribunal asked the applicant to provide evidence from the Iranian Embassy for a request for citizenship in 2004 and a copy of the application submitted in 2013 which would have reflected the applicant’s status at the time he applied initially as claimed in 2004. The
Tribunal again noted that it would be difficult to accept that the applicant did not keep such prized documents given he claimed that his family had been stateless. Citizenship would have bestowed on him and his family many rights the applicant claimed he was deprived of so these were not the sorts of documents the Tribunal considered he would lose or misplace. The applicant asked whether evidence of his Iranian citizen was not enough. The Tribunal explained that it wanted to be able to see how he presented himself to the authorities when he applied for Iranian citizenship and whether it was true that he was prior to being granted his citizenship, stateless as claimed.
The applicant stated that he would make an effort to seek those documents.
The Tribunal noted that even if the matter of his citizenship did not mean that he filled in his application in a way that was incorrect, he did provide an incorrect name to the Department. The applicant stated that the current name he used was his name but they went to school and they changed their name, so they were called different names because they did not want to provide their real name because they had a few racial problems in Iran. The Tribunal noted that in providing his name to Australia’s immigration authorities he would have known that he had to identify himself correctly. The applicant stated that he changed his name when he obtained citizenship.
Asked how the applicant was able to leave Iran in the first instance he stated that his father organised a false passport for him. The Tribunal asked whether in Iran it was possible to be an imposter and for the authorities not to identify that that was the case. The Tribunal noted that the country information indicated that people were screened very carefully to make sure that the person applying for a passport was who they said they were, and that at the airport there were checks to ensure that the person who purported to be an Iranian citizen, was the person reflected in the passport. The applicant stated that someone else prepared it for him.
The Tribunal noted that the country information indicated that the Iranian authorities were thorough and it was not plausible that the applicant would have been able to pass through the airport on a false passport.
The Tribunal also noted that the applicant in his Protection visa application had provided a tragic account about his brother being discriminated against in hospital when he had a [medical condition] and that the hospital had let him die because he was an Arabic stateless Bedouin. He stated that his mum and dad did not speak Persian at that time and that they wore the Arabic costume, and that is why there was discrimination so when they took his brother to the hospital they told them they had to pay money; only then would he be admitted. The Tribunal also noted that he had stated that his shop had been vandalised and that “they” took his [belongings]. He tried to enrol his children at the local school and they were refused. He had stated that he could not put up with the persecution any longer because of his ethnicity and imputed political belief. He stated that he had no right to go back to Iran or Kuwait. The Tribunal noted that when he wrote this information he could have expressed to the immigration authorities that he had tried to get Iranian citizenship in 2004 but had been denied. The applicant stated that he did provide that in his entry interview and the migration agent stated that they would provide a transcript of that aspect of the interview.
The applicant stated that the Tribunal should take into account that he had never breached Australia’s laws. The applicant stated he had a police check here and he had no problems with the authorities. He had been working as [an occupation]. In terms of his good character, the applicant stated that it was as though he had two lives – the one he had in Iran and that in Australia. He has made every effort to lead a lawful life in Australia. He had plans and hopes that he could obtain citizenship and open his own business and start over. He had been working for many years and paying his rent and he was a law-abiding person.
The Tribunal asked the applicant about his present circumstances and those of the family as a whole. He stated he wanted to start a business and to purchase a property but due to the cancellation he became unsettled. He felt he had peace of mind here. The applicant stated that even if he were not here, he felt his children would have a good life in Australia. The Tribunal noted that the applicant’s presence in Australia presupposed that the applicant provided correct information in his application form. The applicant stated that he was afraid to tell the authorities in 2013 when he acquired Iranian citizenship. They might have cancelled his visa and there would be a problem. The Tribunal asked whether the applicant had not thought that the Department would find out given that three years prior he had claimed that many terrible things had happened to him in Iran and that he was in need of protection in Australia. The Tribunal noted that it was odd that the applicant had not considered it important to tell the Department that his circumstances had changed. The applicant stated that in the first interview he did tell them.
The Tribunal asked the applicant to discuss any contribution he might have made to his community in Australia. The applicant stated that he had a good relationship with the people in [Town 1]. He provided [a certain service] at a reasonable rate and he had had his business now for six years. They were involved in the community. The applicant confirmed that he had paid taxes on his earnings for six years.
The applicant stated that he could just as easily have provided a false religious or political claim but he did not do so. He did not provide any false information.
The applicant’s wife also gave evidence. She stated that if they had been Iranian citizens they would never have come to Australia. The applicant’s wife was entitled to everything but her children could not go to school and had no rights. The Tribunal asked whether her family were comfortable with her marrying a non-citizen. The applicant’s wife stated that her father did not approve of the match and warned her of the consequences but she did not understand these issues. She thought everything would be ok. On the way to Australia she lost her bag containing ID and birth certificate in the water and when her mother went to request that ID then they realised that her husband’s application for citizenship had been approved. She stated that her husband and her father-in-law obtained citizenship at the time. They spoke in Arabic and they did not tell her anything when they spoke in Arabic so she was unaware as to what was occurring.
The spouse of the applicant stated that she was not worried about herself but her sons. They did not know anything about Iranian society. They both came together on a boat with their eldest child. They had been here for several years and they were settled now. They had made a new life must she was frightened that it could all be destroyed and they would have to start again. Her second son was born in Australia and did not know life in Iran. The Tribunal observed that that was not entirely true given that she and her family travel backwards and forwards from Iran. She stressed that the children did not speak Farsi. Her eldest was now in [school] and had settled. Her children did not speak Farsi.
The applicant wife stressed that they had had a couple of years of hardship and homesickness in Australia. She had no family in Australia and suffered from depression. She stated that it was only at the Tribunal hearing outside while they were waiting to be called that she had explained to her eldest son that their visa was in jeopardy of being cancelled.
The migration agent urged the Tribunal to take into account how highly stressed the family were and that there were Australian citizen children involved. Australia’s obligations towards the children had to be taken into account. The family would be subject to great stress and barred from making further applications. The agent stated that if the visa were cancelled and the family were detained it would have a devastating impact.
Discussion
The Tribunal has serious concerns with the first named visa applicant’s credibility. Even after having been provided at hearing with the opportunity to be transparent as to the fact that the applicant had provided incorrect information to obtain his Protection visa, it was not the only consideration the Tribunal was required to take into account so he should not feel compelled to perpetuate the incorrect information. The applicant steadfastly at hearing continued to maintain that he travelled to Australia on a false passport and that he only obtained Iranian citizenship in 2013, prior to returning to Iran and just after being granted protection on the basis that he was a stateless Arab Kuwaiti Bedouin. The Tribunal finds, however, that the evidence does not support the applicant’s contention.
In support of his claims that at the time of application the applicant was a stateless Kuwaiti Bedouin the applicant submitted to the Tribunal a copy of a birth certificate stating that the applicant’s place of birth was Kuwait. Nothing further is said about whether he might be stateless. The fact the applicant was born in Kuwait does not mean the applicant was not an Iranian citizen at the time of application.
Further in respect of this Birth Certificate, the migration agent in his submission dated 25 May 2018, wrote that the certificate attests to the applicant’s “first issuance of Iranian citizenship on [date] 2012 and through the Ministry of Foreign Affairs (Tehran) resulting from the citizenship application he had made in 2004 based on his marriage to an Iranian woman” [emphasis migration agent]. The certificate states it was issued pursuant to Article 979 of the Immigration Act of the IR of Iran and citizenship document No.2. The birth certificate is dated [date] February 2013. There is no mention of the applicant ever having been stateless, however.
The Tribunal notes that the applicant claims that the immigration officials took his Birth Certificate on arrival in Australia which stated that he was stateless. The migration agent also asserted that he would provide the Tribunal with a transcript of the applicant’s interview on entry into Australia to corroborate that he told the authorities on arrival in 2010 that he had tried to obtain Iranian citizenship in 2004. No such transcript has ever been provided to the Tribunal.
The Tribunal is unable to see from this birth certificate how it “attests” to the applicant having come to Australia as a stateless person without a genuine passport and that he was first issued with Iranian citizenship on [date] 2012. The Birth Certificate does not say this. All it does is confirm that the applicant was provided with a birth certificate on [date]/02/2013 and makes no mention of when the applicant was first issued with Iranian citizenship.
The applicant has also been granted ample opportunity to provide documentation to show that he had lodged his application for Iranian citizenship in 2004. The Tribunal does not accept the applicant’s claims that he might have lost the relevant documentation, and rejects his incoherent responses about not having kept copies of his application for citizenship in 2004. The applicant claimed to have experienced such significant harm as a stateless person in Iran yet managed to lose all the relevant paperwork as proof that he had finally applied for citizenship. This is not plausible given he claims that the lack of citizenship caused his family such grief. Further, the applicant has travelled to and from Iran on several occasions and there is no reason he could not have inquired of the authorities about the documentation in relation to his application in 2004. The Tribunal does not accept that had the applicant applied in 2004 the applicant would not have any evidence that this was the case. The Tribunal would have entertained a letter from the Iranian authorities or from the Iranian Embassy in Canberra confirming the applicant’s claims.
The Tribunal finds, instead, that the reason that no such documentation has been provided to the Tribunal is because the applicant was an Iranian citizen on entry to Australia and that his claims that he first applied for Iranian citizenship and that the matter lay dormant until 2013, is not credible. Instead, the Tribunal finds that the applicant has fabricated his account that he first applied for a passport in 2004 to explain the sudden grant of his Iranian citizenship in 2013 after his protection visa was approved.
The Tribunal considers that the applicant’s timing in claiming to have only just been granted citizenship in [2013] is significant. The applicant is asking the Tribunal to accept that it was mere coincidence that after 9 years of waiting for his citizenship it should have come through just after he was granted Protection in Australia and just prior to he and his wife needing to go to Iran because of his wife’s homesickness. The Tribunal does not accept this explanation and finds that it is more probable than not that the applicant always had Iranian citizenship, but waited until being granted permanent residency to travel back to his home country where he never feared persecution.
The Tribunal considers that the applicant’s credibility is also marred by the country information which demonstrates that since 2010-2012 the Iranian authorities have instituted a sophisticated system for establishing the identity and bona fides of those applying for official documents, strengthening the integrity of the identity document system in Iran. The following was discussed with the applicant at hearing. Key Iranian identification documents include a birth booklet known as the shenasnameh and National identity card:
National Identity Cards (NID)
Every permanent resident of Iran over the age of 15 (including non-citizens) must hold a National Identity Card (NID). NID are compulsory for a range of activities, including obtaining passports and driver’s licences and using a bank. ONOCR (also known as Vital Records) initially issues applicants with temporary cards upon receipt of a completed application form, an original copy and photocopy of all pages of the applicant’s shenasnameh, and two photographs. Applicants must present all of this documentation in person at either a local branch of the ONOCR or an Iranian diplomatic mission abroad. The ONOCR then issues a permanent card with a seven-year validity. The front of the NID includes the bearer’s photograph, National Identity Number, full name, date of birth and shenasnameh number. The reverse features the bearer’s residential numerical code, validity date, and the numerical identifier of the issuing office. [1]
[1] DFAT Country Information Report – Iran – 7 June 2018. This information was not available to the Tribunal at the time of hearing but the information has largely remained consistent since the report from which the Tribunal read to the applicant (DFAT Country Information Report – Iran – 21 April 2016).
There is no requirement for Iranians to carry either or both of their shenasnameh or NID at all times. They are required only when it is necessary to prove identity – not having them will prevent individuals from being able to complete their business. Different offices require different forms of identification: banks require only NID, while notary public offices require both NID and shenasnameh. Iranians generally check with offices ahead of time to see which form of ID is required, or carry both as a means of security.[2]
National Identity Smart Cards
Iran Introduced a new biometric identity card in 2013. The National Identity Smart Card (NISC) contains biometric data including the phot and fingerprint of the bearer. The NISC also includes the individual’s name, family name, date of birth and place of birth as well as the individual’s national ID code, shenasnameh number and digital signature. The NISC is valid for ten years and is also used for receiving government benefits, health cover, voting in elections and accessing other public services. Old National Identity cards remain in circulation and are being replaced by National Identity Smart Cards as they expire.[3]
Passports
Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship. All Iranian passports have been biometric since February 2011. Iranian passports include the following data: holder’s signature, country of residence, place of issue, name and position of issuing authority, passport type, country code, passport number, national ID number, holder’s name, father’s name, date and place of birth, sex, date of issue, and date of expiry. Applicants for passports are required to provide their original Iranian Birth Certificate (shenasnameh), photocopies of all of the pages of the Birth Certificate containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the past three months.[4]
Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran. In February 2016, the International Business Times reported the arrest in Thailand of a passport forger who admitted to selling forged passports to people from Iran, Iraq and Syria. The majority of forged passports sold by the forger were allegedly used to travel to Europe. [5]
Prevalence of fraud
Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran. In February 2016, the International Business Times reported the arrest in Thailand of a passport forger who admitted to selling forged passports to people from Iran, Iraq and Syria. The majority of forged passports sold by the forger were allegedly used to travel to Europe.
According to Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (AUD4-20). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances.[6]
[2] Ibid.
[3] DFAT Country Information Report – Iran – 21 April 2016.
[4] DFAT Country Information Report – Iran – 7 June 2018.
[5] Ibid.
[6] Ibid.

The Tribunal has difficulty on the basis of the country information accepting that the applicant was able to leave Iran without a genuine passport and considers that he has conveniently used the claim of leaving on a false passport, as a device to explain how he would have been able to leave the country had he genuinely been an Arab Kuwaiti stateless Bedouin. The explanations put forward by the applicant and his wife and representative do not directly address the country information and nor do their explanations plausibly illustrate how the applicants were able to circumvent the system.
Strengthening the Tribunal’s concerns about the applicant’s lack of credibility is the fact that the applicant’s father had Iranian citizenship. It was argued at hearing that his father acquired Iranian citizenship, presumably meaning that his father was granted citizenship, rather than being born an Iranian citizen. The Tribunal has had regard to the country information in respect of the applicant’s circumstances:
Nationality Law

BOOK 2
On Nationality
Article 976 – The following persons are considered to be Iranian subjects:
1 – All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government.
2- Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran;
3 – Those born in Iran of unknown parentage;
4 – Persons born in Iran of foreign parents, one of whom was also born in Iran.
5 – Persons born in Iran of a father of foreign nationality and have resided at least one more year in Iran immediately after reaching the full age of 18; otherwise, their naturalization as Iranian subjects will be subject to the stipulations for Iranian naturalization laid down by the law.
6 – Every woman of foreign nationality who marries an Iranian husband.
7- Every foreign national who has obtained Iranian nationality
Note – Children born of foreign diplomatic and consular representatives are not affected by Clauses 4 and 5 of this Article.
Article 977 – (a) If persons mentioned in Clause 4 of Article 976 wish to accept the nationality of their fathers, they must submit a written request to the Ministry of Foreign Affairs to which they should annex a certificate issued by the national Government of their fathers to the effect that the said Government would recognize them as their own nationals.
(b) If persons mentioned in Clause 5 of Article 976 after reaching the full age of 18 years wish to remain of the nationality of their fathers, they must, within a period of one year, submit a written request to the Ministry of Foreign Affairs to which they should annex a certificate from their father’s national Government indicating that the said Government would recognize them as its own nationals.
Article 978 – Reciprocal treatment will be observed in the case of children born in Iran of nationals of countries where children born of Iranian subjects are considered nationals of that country and the return of such children to Iranian nationality is made dependent on permission.
Article 979 – Persons can obtain Iranian nationality if they:
1 – Have reached the full age of 18;
2- Have resided in Iran for five years, whether continuously or intermittently;
3 – Are not deserters of the military service;
4 – Have not been convicted of non – political major misdemeanors or felonies in any country;
In the case of Clause 2 of this Article, the period of residence in foreign countries in the service of the Iranian Government will be considered as residence in Iran.
Article 980 – Those opting for Iranian nationality who have rendered services or notable assistance to public interests in Iran, or who have Iranian wives by whom they have children, or who have attained high intellectual distinctions or who have specialized in affairs of public interest may be accepted as nationals of the Islamic Republic of Iran without the observance of the requirement of residence, subject to the sanction of the Council of Ministers and provided that the Government considers their naturalization to Iranian nationality to be advisable. (Amended in accordance to the Law on Amendment of Several Articles of the Civil Law, 1991)
Article 981 – This Article was repealed. (Amended in accordance to the Law on Amendment of Several Articles of the Civil Law, 1991)
Article 982 – Those who have obtained or obtain Iranian nationality will enjoy all rights recognized for Iranians but cannot attain the following positions:
1 – Presidency or vice – presidency,
2 – Membership in the Council of Guardians and position of chief of the Judiciary,
3- Ministry, deputy ministry, positions of governor – general and governorship,
4- Membership of the Islamic consultative Assembly,
5 – Membership in provincial, or district councils, or municipal councils
6 – Employment with the Ministry of Foreign Affairs, or attaining any diplomatic position or being appointed on diplomatic delegations.
7 – Judgeship.
8 – The highest – ranking command positions in the Army, the Revolutionary Guard Corps and the Law Enforcement Forces.
9- Important intelligence and security positions. (Amended in accordance to the Law on Amendment of Several Articles of the Civil Law, 1991)[7]

26.     On the basis of the country information the Tribunal is not satisfied that the applicant would not have acquired Iranian citizenship by jus sanguinis. As such, the Tribunal finds that it is more probable than not that the applicant already had Iranian citizenship on arrival in Australia and that he had never applied in 2004 for citizenship, because prior to marrying his wife he already had Iranian citizenship though his father.
[7] The Iran Data Portal, Nationality, type="1">
The Tribunal is not satisfied that the applicant has adequately explained the issues raised by the Tribunal at hearing and for the reasons above, the Tribunal finds that there was non-compliance with ss.101(a) and (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 Tribunal has considered these prescribed circumstances, as well as relevant and lawful government policy in its considerations.
The Tribunal discussed the provisions of Regulation 2.41 with the applicant. The applicant and his representative provided submissions and evidence. They continued to maintain that the applicant was not, at the time of application, an Iranian citizen. In addition to the submissions and evidence already referred to above, the applicant submitted medical evidence about the applicant’s wife’s condition and letters of support from within the [Town 1] community where they reside.
The correct information
The correct information, as found above, is that the applicant is a citizen of Iran and was so at the time of application.
The content of the genuine document (if any)
The applicant had access to genuine documents that would have correctly identified his identity and citizenship status. The Tribunal considers that the applicant deliberately did not use these documents as part of his protection visa application. The Tribunal finds that the current passport is a genuine one and was issued lawfully as was the passport on which he first travelled to Australia.
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 Tribunal finds that the decision to grant the applicant a subclass 866 visa was based wholly on the claims he made that he was stateless in Iran and that he had suffered persecution there, as had other members of his family. The decision to grant the visa was significantly based on incorrect information and it is not likely that the visa would have been granted had the correct information been known. The Tribunal places significant adverse weight on this matter against the applicant.
The circumstances in which the non-compliance occurred
The Tribunal finds that the applicant knowingly provided incorrect information in making his application for protection. The applicant’s actions have undermined Australia’s migration system and his continuing denial that he provided the incorrect information, goes to his character. He has also provided several statutory declarations that provide incorrect claims. The Tribunal similarly places significant weight against the applicant in this regard.
The present circumstances of the visa holder
As well as having a permanent resident child in [school] in Australia, the applicant also has two Australian citizen children by virtue of having been born in Australia. The applicant now has a family of five, including himself to support. The youngest child is [age]. The children’s birth certificates have been submitted as evidence. It has been argued that it would be extremely disruptive to the eldest child, in particular, to restart [school] in Iran. In terms of the younger two they are unable to speak Farsi and have never lived in Iran.
The applicant’s wife has provided evidence of suffering multiple health [issues].   She has been on medication and attended counselling and it was suggested to her that she should visit her mother given her homesickness as she was suffering from [various symptoms]. She is under the care of a [specialist]. In April 2017 her general practitioner stated that “[Her] medical state is becoming worse and she is deteriorating and is requiring more help on a daily basis, also she has no other support to help with her daily living. Her family is overseas and there is no local agency to help her”. The Tribunal places significant weight on the disruption that would be caused to the applicant’s children in having to re-establish themselves in Iran. The Tribunal also places weight on the fact that the applicant’s wife has several serious health issues, and while health services exist in Iran, they would generally not be to the standard they are in Australia. While it is true that the applicant’s wife contributed to the incorrect information provided, the Tribunal does not attribute responsibility for the decision to do so to the applicant’s spouse, who is now bearing the burden of the applicant’s decision.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has not conceded that incorrect information was provided by him with respect to his protection application.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that the applicant has been non-compliant in any other manner aside from the matter at hand. He stated that he has always paid taxes on his earnings and a letter by the applicant’s accountant has been provided to support this claim.
The time that has elapsed since the non-compliance
It has now been over eight years since the applicant lodged his protection application and provided the incorrect information.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached Australian law in any respect.
Any contribution made by the holder to the community
The applicant has asserted that he and his wife have become a key part of their [Town 1] community and that the applicant provides a service in discounting his services to the poor. [A named person] of the Ethnic Council of [Town 1] , provided the applicant with a letter of support, dated [April] 2018, stating, among other things:
I have known [the applicant] for the better part of the six years he has operated a [business] in [a] shopping precinct comprising many retailers and customers from new arrival communities. Based on the growth and interest in the precinct generated by the traders including [the applicant] the City Council created [a] Food Festival which has become an annual event and initiated a major streetscape redevelopment of the street.
Through his business [the applicant] has established himself in the [Town 1] community and provided a stable and secure environment for his family. [The applicant] has three children, two of whom were born in Australia and are Australian citizens and it would cause great distress to [the applicant] and his young family if the status of his permanent residency was overturned and his family forced out of the country.
[The applicant] has successfully settled in [Town 1], started an ongoing business and raised his family and any compassionate assessment of [the applicant]’s situation would conclude that any threat to his residency status is inherently unjust.
[The applicant] provides a role model for government settlement programs that encourage employment and English language skills as beneficial assets to the community and his endeavours and success should be rewarded and acknowledged.
The migration agent has also argued that the Department should have taken into consideration that the applicant is hard working contributing to an area in which there is a skilled [shortage]. The landlord of the applicant’s business has submitted a letter to argue that the applicant worked hard and paid his rent on time and “The shop is an extension of my home. I, my family had not any issues with him such as abuse, disrespect, or any other problems. People in our area like [the applicant] as he skilled in his work, his rates support the low income”. The Tribunal notes that the business was established in 2012 and is now a long-standing one. Other letters reflect that the family has a close bond and that the applicant is working hard to support his children and wife.
The Tribunal accepts that the family has made significant ties to the community in [Town 1] given the length of time the applicant has been in Australia, and that cancellation may cause some hardship to him. The Tribunal also takes into account that he cares for three young children and that it is most unlikely that his two young Australian citizen children would be able to remain in Australia were the applicant and his spouse to go offshore.
The Tribunal places weight in the applicant’s favour in regard to his contribution to the community and his family, but also notes that but for his fraudulent conduct, he would never have had the opportunity to integrate into the community at [Town 1].
Other relevant factors
The prescribed circumstances as listed under R.2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires that other factors be taken into account, including Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those required under R.2.41.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
Visa cancellation for the applicant would result in the second-named visa applicant’s visa [to] be cancelled consequentially under s140 of the Migration Act 1958. The applicant has mentioned in his submission that his wife would also be cancelled consequentially, however this is not correct as her claims were considered separately by the Department and will be considered separately by the Tribunal. Nonetheless, the applicant’s [son]’s visa would be cancelled consequentially, and the Tribunal places weight in the applicant’s favour in the Tribunal reaching its decision.
Australia’s International Obligations
The applicant has made statements that he is a stateless Kuwaiti Bedouin who had been mistreated in Iran. The Tribunal for the reasons provided above, does not accept these submissions. Further, if the applicant’s visa were cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. The Tribunal therefore does not consider that a decision to cancel the visa would necessarily cause the applicant to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention, the United Nations Convention Against Torture (CAT) and (International Covenant on Civil and Political Rights (ICCPR), and further finds that Australia’s complementary protection provisions would not apply to the applicant. An ITOA would assess, among other things, whether the applicant would be at risk of harm in his country of origin.
The Tribunal does not accept that the effect of the cancellation would be to return the applicant to Iran in breach of Australia’s non-refoulement obligations, as arise out of the CAT and the ICCPR or in breach of any obligations arising under the Refugees Convention or complementary protection provisions in the Act.
Convention on the Rights of the Child (CROC)
While consideration of Australia’s obligations under the CROC includes the best interests of the child,[8] which the delegate considered, the CROC includes integrated but wider considerations including the unity of the family[9], education[10] and health and disability considerations[11] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[12]
[8] Article 3
[9] Articles 5,9
[10] Article 28
[11] Articles 23 and 24
[12] Article 22
It was submitted that the best interests of the children should be a primary consideration in the making of administrative decisions, reflecting the guidance of Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353. The Tribunal considers this a relevant submission, but notes that it is “a” primary consideration, not ‘the’ primary consideration in this matter.
The applicant’s children are [age] and [age] years old and the most recent addition to the family is [age]. The Tribunal notes that for the two Australian citizen children, Australia is the only country they have known and that for the eldest child, he has spent his formative years in Australia. The Tribunal understands that the children have settled well in Australia and that to disrupt their studies and future would have a significant effect, particularly on the applicant’s wife who is battling depression and would need to assist at least of the two eldest children adjust in a new environment. The applicant’s wife is accessing treatment in Australia to assist her care for her children and family, and it is unclear how she will be able to continue to do so if there is a significant rupture in their lives and her care giving role is compromised.
The Tribunal also places significant weight on the fact that the eldest child is now in [a certain grade] and that returning to Iran at this sensitive age would require an adjustment that would be beyond reasonable. Clearly, the best interests of the applicant’s children would be to remain in Australia where they can access a reasonable standard of education and healthcare. The loss of these for the children would represent a significant harm to the children and the Tribunal places significant weight on this matter.
The applicant’s wife’s health conditions, together with the detrimental effect on the children of any cancellation, together with the significant period within which the applicant has been in Australia now with his family (eight years), the Tribunal finds, cumulatively override its significant concerns about the applicant’s provision of incorrect information on arrival in Australia. This is even though the applicant has not conceded that he provided incorrect information as part of his protection application and the Tribunal has found that he did so.
The provision of the incorrect information that led to the grant of a protection visa is a serious issue. The grant of protection visas is reserved for those who are fleeing genuine persecution. The fact that the applicant continues to deny in spite of the evidence (and lack thereof to support his case) that he provided incorrect evidence, goes to his character and integrity, even if he has not breached any laws since the provision of the incorrect information regarding his identity and residency status in Iran. Nonetheless, the detrimental effect that the cancellation would have on the applicant’s family would be such that it leads the Tribunal to find that the persons who would bear the brunt of the cancellation are the applicant’s wife and the children, and for these reasons considers that their interests should mitigate the inclination to cancel the visa.
The Tribunal has also taken into account that the applicant makes some contribution to the [Town 1] area, but considers that it is more his family as a whole whose contribution has significance for the community, and the Tribunal places some weight on the negative consequences on that community of removing the family.
Given all the circumstances, therefore, including the incorrect information, the applicant’s activities in Australia, contributions by his family, and in the interests of the children, together with the lengthy period of the applicant’s stay in Australia in which he has integrated, the Tribunal determines that the applicant’s visa should not be cancelled.
Conclusion
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 first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Rosa Gagliardi

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.

, accessed on
30 August 2018.

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Jurisdiction
Procedural Fairness
Statutory Construction
Natural Justice

[2018] AATA 4206

31 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice