1724454 (Refugee)

[2020] AATA 5609

1724454 (Refugee) [2020] AATA 5609 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724454

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Tania Flood

DATE:9 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 09 December 2020 at 12:22pm

CATCHWORDS

REFUGEE – cancellation – Subclass 866 (Protection) visa – Iraq – incorrect information provided in protection application – applicant’s brother holds a legitimate Iranian passport – applicant was born in Iran and not Iraq – brother’s passport is fraudulent – credibility concerns –applicant is an Iranian citizen – in a relationship with an Australian citizen -applicant has contributed to the community through volunteer work– best interests of the child –decision under review set aside

LEGISLATION

Migration Act 1958, ss 101, 107, 109, 424AA, 425

Migration Regulations 1994, r 2.41, Schedule 2

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicant arrived in Australia as an Illegal Maritime Arrival (IMA) [in] September 2009.

3. He requested a Refugee Status Assessment (RSA). On 26 October 2009 he was assessed to be a refugee.

4. On 2 December 2009 he was granted a Protection visa on the basis of his religion, as a Shi’a Muslim who faced persecution in Iraq.

5. On 18 September 2015 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Act. On 22 September 2015 the applicant responded to the notice.

6. An International Treaties Obligation Assessment (ITOA) was initiated on 16 October 2015 and finalised on 29 January 2016.

7. On 25 May 2016 the applicant’s subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109 of the Act. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for protection, in relation to his citizenship.

8. The applicant applied for a review of the delegate’s decision. On 30 September 2016 a differently constituted Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

9. The applicant appeared before the Tribunal on 19 February, 28 August 2020 and 4 December 2020 to give evidence and present arguments.  On 4 December 2020 the Tribunal heard evidence from the applicant’s Australian citizen partner.  The Tribunal hearings was conducted with the assistance of an interpreter in the Arabic and English languages.

10. The applicant was represented in relation to the review by his registered migration agent.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

13. 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.

14. 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.

15. 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.

    The Notice of Intention to Consider Cancellation

16. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(a) and s.101(b) of the Act in the following respects:

17. On 30 November 2009 the applicant lodged an application for a class XA Subclass 866 Protection visa. As part of this process he provided a completed Form 866 – Application for a Protection (Class XA) visa.

18. At question 21 of Part C of Form 866 where it states, “Your citizenship at birth” he answered “Iraq”.

19. At question 22 of the form where it states “Your current citizenship (if different to at birth)” he did not provide an answer.  

20. At question 23 of the form where it asks, “Do you hold any other citizenship or are you a national of any other country?” he answered “no”.

21. At question 59 of the form where it asks, “Do you have the nationality or are you a citizen of any country(s) other than the country(s) in which you claim to fear persecution?” he answered “no”.

22. The applicant attached a Statutory Declaration to his application form, signed by him and dated 7 October 2009. In the Statutory Declaration he stated, “I have no status in Iran and cannot live there.”

    The notice

23. On 18 September 2015 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC), on the basis of non-compliance with s.101 of the Act.

24. The notice stated that information before the department indicates that his brother, [Mr A], entered Australia as the holder of a passport issued by the Islamic Republic of Iran. The biopage of the passport states that his father’s name is ‘[Name 1]’, which is also the name of the applicant’s father. The delegate put to the applicant that according to Article 976 of the Iranian nationality code, Iranian citizenship is automatically acquired at birth if the father is an Iranian citizen. The notice stated that as the applicant’s brother is the holder of a legitimate Iranian passport, it follows that the applicant is also a citizen of Iran under Iranian nationality law.

25. Taking into account the matters set out in the notice, the delegate put it to the applicant that he had not complied with s 101 (b) as he provided incorrect answers to questions 23 and 59 of Part C of Form 866, in regards to his nationality. In addition, the delegate put it to the applicant that he had not complied with s 101 (a) of the Act, as his response to question 22 indicates that he has not filled in or completed his application form in such a way that all questions on it are answered.

26. The delegate also put to the applicant that it is highly likely he is a citizen of Iran and therefore his statement in his Statutory Declaration dated 7 October 2009, indicating that he has no status in Iran, is also incorrect.

27. The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled.  He was advised he should provide reasons as to why he thought he had complied, or why he had not complied with s.10 of the Act.  The notice set out the time period within which to provide a response, relevant legislative provisions and a summary of the matters to be considered in relation to a protection visa cancellation.

28. The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in Regulation 2.41 of the Migration Regulations 1994, on the basis that notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with s.101 and he should address the discretionary issues.

    Response to the notice

29. On 22 September 2015 the applicant provided a response to the notice. The applicant stated that all his answers to Form 866 are correct; he is an Iraqi citizen and does not hold any other citizenship. He also does not have a right of residency in Iran.

30. The applicant stated that he contacted his brother about his Iranian passport and was told that it was obtained “not in a genuine way”. He does not have any further information.

31. He stated that he applied for a visa to enter Iran. If he is an Iranian Citizen, he would not need to apply for that visa. 

32. In addition, the applicant stated that he is an active member of the Australian community. He is a business owner and employs four people. He was waiting for his Citizenship ceremony and looking forward to marrying his partner of three years.

33. The following documents were attached to his response:

    ·Copy of his Australian Titre de Voyage (Number: [deleted]), issued [in] 2009

    ·Copy of his Iranian visa valid from [January] 2010 to  [April] 2010

    Procedural fairness letter

34. On 15 February 2016 the delegate issued a procedural fairness letter to the applicant. The delegate stated that according to Departmental records, the applicant’s brother, [Mr A], entered Sydney Airport [in] November 2014 and was in possession of an Iranian shenasnameh, which indicates that he was born [in] Kermanshah Province, Iran. The name of his father, [Name 1], was also recorded on the shenasnameh. The delegate put it to the applicant that this indicates that his brother is an Iranian citizen. The delegate stated that it is highly likely that the applicant is also an Iranian citizen and would have been issued a similar shenasnameh at the time of his birth.

35. On 17 February 2016 the applicant forwarded an email written by ‘[a named person]’. The email states that the applicant’s brother’s name and his passport are fraudulent documents, and that she and her family are Iraqi citizens, who possess only Iraqi paperwork and documents.[1] The applicant also submitted documents relating to his business, [including] a certificate of registration of the company, information from ASIC, and tax return documents dated 2013 to 2015.

    [1] Note: It is unclear who ‘[a named person]’ is, but it appears she may be one of the applicant’s sisters.

    Evidence before the First Tribunal

    Prehearing submissions

36. On 7 June 2016 the applicant made a submission to the Tribunal with his application for review.

37. In a letter to the Tribunal, the applicant stated that his parents were born in Iraq. During the reign of Saddam Hussein, thousands of Shiite Muslims were killed or tortured. His family managed to escape to Iran; however, the regime in Iran is also ruthless and oppressive. Although they were given Iranian nationality, they were still considered second class citizens. The applicant stated that after the fall of Saddam Hussein, his family tried to go back to Iraq but were faced with opposition by Sunni Muslims in their city. His stated that his father was killed in suspicious circumstances. In addition, the applicant stated that he had been misled in saying that Iraqis had a better chance to stay in Australia. He claims that Iraq, Iran, and the whole Middle East are “places of evil, with no respect for human life, arbitrary executions, kidnapping, killing and abuse”. For the past six years he has experienced freedom and respect for human rights in Australia. He claims he will always be a faithful citizen.

38. The following documents were attached to the submission:

    ·Copy (and translation) of a shenasnameh issued by the Republic of Iran, in the name of the applicant’s father, [Name 1]. This states that his father was born in Samaraa. (IRAQ)

    ·Copy (and translation) of a document titled ‘Burial permission’ dated [December] 2011, in relation to the applicant’s father. The document states that the cause of death is currently ‘unknown’ and is under investigation.

    ·Copy (and translation) of a document titled ‘Judiciary Office of Province’ dated [December] 2011. The letter is addressed to the [Coroner’s] office and asks the Coroner’s office to surrender the body of [Name 1] to his son after autopsy and determinations in relation to the cause of death.

    ·Copy (and translation) of a letter issued by ‘Tehran provisional coroners’ (undated). The letter states that the result of toxicology and pathology laboratory examinations has determined that, absence the commission of any crime, the applicant’s father’s death was caused by [a medical condition]. 

    ·Copy (and translation) of an ID card issued by the Republic of Iraq in the name of ‘[Name 1]’. The date of birth listed is [date of birth].

    ·Copy (and translation) of an Iraqi nationality certificate, issued in the name of ‘[Name 1]’ with the date of birth listed as [date of birth]. 

39. On 17 August 2016 the applicant submitted a signed Statutory Declaration claiming the following:

40. He and his family were Iraqi refugees living in Iran. They are Shia Muslims. His father passed away in Tehran in 2011, aged [age], under suspicious circumstances.

41. He was born in [year] in Sumarra, Iraq, however he grew up in Iran, after his parents were deported to Iran by the ‘Mukhabarat’, the secret police of the Ba’athist regime of Saddam Hussein. He lived in the Iranian town, [in] the north-western province of Kermanshah. When he was [age] years old, he and his family moved to Tehran.

42. As a young Iraqi refugee living in Iran, he grew up speaking the Iraqi version of Arabic. He was bullied by schoolmates because he was an Iraqi and was not entitled to free education beyond primary school.

43. He had to carry around an Iranian refugee card called a ‘Green card’. When he turned 18 he had to go to a special office in Tehran to renew his card each year. The Iranians stopped issuing new Green cards to him and his family and gave them letters stating that they should go back to Iraq. In 2006 his father arranged all the documents for his family to return to Samarra, Iraq. His father also engaged a lawyer to try to regain their nationality and the return of their property in Iraq.  After his father died, the matter was dropped.

44. There were sectarian troubles in Samarra due to the mixed Sunni and Shia residents. In one incident, his maternal uncle and his brother were abducted for ransom by a gang of local Sunni insurgents. His brother was released, but his uncle was killed. After this incident, his father arranged for them to return to Tehran. 

45. In Iran, he kept a low profile. He was considered a second –class resident of Iran, with limited rights to an education, health care and travel, and no right to work. When life became intolerable for him and his younger [brother], his father suggested that they flee from Iran and go to Australia. They obtained false Iraqi passports from a bazaar in Tehran and were able to leave Iran.

46. He stated that all the responses he provided in his protection visa application form are correct, based on his own knowledge and experience at the time. He maintains that he provided correct answers to questions 21, 22, 23, and 59 of Form 866C. He also stated that the information in his Statutory Declaration is entirely correct, as he had no nationality or citizenship status in Iran at the time of his application.

47. It was only recently that he found out that he must have been born in Iran and not Iraq. As he does not have an Iraqi or an Iranian passport, he claims he is currently stateless. He will not be accepted in Iran and is fearful about returning to Iraq because he believes the Iraqi authorities are refusing to accept failed asylum-seekers.

48. He heard that in order for a visa to be cancelled, the delegate must be ‘positively satisfied’ that the answers given were incorrect. He believes the delegate has incorrect and misleading information about the Iranian shemasnameh. He has been informed that the shenasnameh have been replaced by an Iranian National ID card.

49. He stated that if his father was issued a shenasnameh in 1987, he does not understand why his family would continue to live as refugees on their Iranian Green cards. He could have had a proper education and a paid job, instead of becoming a boatperson. He stated that the delegate did not consider this, but instead made dubious conclusions about his nationality.

50. In regard to why his visa should not be cancelled, the applicant asked the Tribunal to consider his situation growing up in Iran as a deprived Iraqi child and refugee. His situation in Australia has improved and he is held within his community as a person of good character and high repute. Through his business he is making a substantial contribution to Australia’s export earnings and economic well-being. In addition, he does not have a criminal record. If his visa is cancelled, he would lose his business and his employees would lose their jobs. It would also be distressing for him and his friends.

    First Tribunal hearing

51. The applicant appeared before the first Tribunal to give oral evidence on 24 August 2016. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative was present at the hearing.

52. The first Tribunal found the applicant was not credible and that he was born in Iran and not Iraq as he had claimed in his application for a protection visa.  The Tribunal found the applicant has been a citizen of Iran since his birth and that he is not stateless.

    Evidence before the present Tribunal

    Pre-hearing submissions

53. On 12 February 2020 the applicant’s newly appointed representative made a submission, recounting the facts that led to the cancellation of the applicant’s Protection visa (Subclass 866) and providing the following:

54. The applicant stated that his brother’s passport and shenasnameh documents are fraudulent. His brother told him that they were fraudulently obtained after being confronted by the applicant. In addition, it was submitted that the Department has not provided forensic evidence to confirm that the passport and the shenasnameh documents are not fraudulent.

55. The representative stated that the applicant had provided sworn evidence that he does not have legal status in Iran, and that this is strong probative evidence in support of the applicant’s claims that he has not contravened s.101 of the Act. In addition, the fact that the applicant needed a visa to enter Iran between [January] 2010 and [April] 2010 is evidence that he is not a citizen of Iran. The applicant’s brother had also been granted an Iranian visa for the same period as the applicant. It was submitted that this indicates his brother is also not a citizen of Iran.

56. The representative also submitted that the applicant’s father, [was] issued with a Citizenship Certificate and a Personal Identification Card, which demonstrates that he was born in Samaraa, the Republic of Iraq. His mother was also born in Samaraa, Iraq. The representative stated that this is corroborative evidence that the applicant is also a citizen of Iraq and does not have citizenship rights in Iran. 

57. In addition, the representative repeated the reasons previously provided to the first Tribunal as to why the Tribunal should not exercise its discretion to cancel the applicant’s visa. These include the fact that the applicant does not have a criminal record or a history of non-compliance with his previous visas, and the fact that he has made a significant contribution to the Australian community through his business.

58. The representative also outlined the consequences of a decision to cancel the applicant’s Protection visa. It was submitted that the applicant would face the prospect of indefinite detention as he does not have any lawful travel documents to return to either Iran or Iraq. In addition, he would face a ban on returning to Australia for a substantial period in the future. This would have an impact on his emotional well-being.

1. The following documents were attached to the submission:

   ·A statement signed by the applicant, dated 12 February 2020. In the statement, the applicant claimed that he attempted to obtain his Iraqi birth certificate from the Iraqi Consulate in both Sydney and Canberra in September 2019. He was told that he would need to physically be in Iraq and have his iris scanned in order to be issued with his birth certificate. The applicant also stated that he has been contributing to the Australian community by volunteering to assist with putting out bushfires [NSW].

   ·Copies of a Citizenship Certificate and a personal identification card (translated) issued by the Republic of Iraq, in the name of the applicant’s [father]. The documents state that he was born in Samaraa in [year].

   ·Copies of Iranian visas issued to the applicant and his brother, valid for travel between [January] 2010 and [April] 2010.

   Tribunal hearings

2. The applicant appeared before the Tribunal on 19 February, 28 August and 4 December 2020.  He provided the following testimony:

3. He was born in Iraq to Iraqi parents.  He has two brothers and one sister.  One brother and his sister were born in Iraq and one brother was born in Iran.

4. Currently his mother and siblings are living in Tehran, Iran.

5. When he was around [age] years of age, he and his family were forced out of Iraq to Iran They were issued Green Cards in Iran and held no permanent status in Iran.

6. In 2006 the family returned to Iraq for about eight months.  They found it wasn’t safe and returned to Iran.  Now his family members need to return to Iraq every three months to extend their visa to remain in Iran.

7. In Iran he was only permitted to study until [a specific year].  Thereafter he was informally educated by a neighbour along with her children. 

8. He speaks Arabic and Persian.

9. From around age [age] he worked alongside his father in [a specified] industry.  They had no work rights but managed to find employment with an Iraqi employer.

10. He left Iran because he did not have Iranian citizenship and was unable to settle in Iran.

11. He travelled to Australia with his brother.  His brother’s Protection visa was cancelled and he returned to Iran to be with his wife who was pregnant at the time.

12. He previously held a genuine Iraqi passport but it was confiscated at sea by the people smuggler.  He obtained the passport in Iraq after producing his Iraqi birth certificate and citizenship certificate.   He has attempted to obtain a copy of his birth certificate from the Iraqi embassy in Canberra but was told he needs to return to Iraq to do so.

13. When asked where his original birth certificate is he said that his father kept their documents in Iraq.  He said he doesn’t know where his documents are now and speculated that his aunty might have them in Iraq. 

14. The Tribunal put it to the applicant that it is surprising in the circumstances that he has not attempted to locate his birth certificate.  He said that he was previously busy with his work and didn’t follow it up.  He said he did not think it was that important because he had already provided his father’s birth certificate.  He added that he asked his mother to find the birth certificate but she did not.

15. The Tribunal put it to the applicant that his evidence about his claimed place of birth is inconsistent.  Relevantly, the Tribunal pointed out that he originally claimed to have been born in Iraq on [date] whereas in a statutory declaration dated 17 Aug 2016 he stated that he only recently found out that he must have been born in Iran.  Despite making that statement he then told the former Tribunal that he is not sure where he was born whereas his latest evidence to this Tribunal is that he was born in Iraq and held an Iraqi birth certificate. 

16. In response, the applicant stated that the department concluded that the Iranian identity documents found in his brother’s possession were real whereas they were all fake.  He said in order to prove to the department that fake documents can be obtained in Iran, he himself arranged to have fake Iranian documents sent to him in 2016. He later confirmed he was emailed a copy of a fraudulent Iranian passport by a friend.  He said he forwarded this email to the Department but he is not sure if they ever received it.  He said that afterwards his lawyer counselled him against such activity and he destroyed the fake documents.   He maintained he was born in Iraq and referred to his father’s Iraqi birth certificate. He said he does not know if he forwarded the email with the fake Iranian passport to the Department before or after the last Tribunal hearing.

17. The Tribunal asked the applicant, why he would have attempted to obtain an Iraqi birth certificate in 2019 after declaring he recently found out he was born in Iran.  The applicant denied saying he didn’t know where he was born.  The Tribunal referred to sections of the former Tribunal’s decision which indicate him expressing uncertainty about his place of birth.  He said that his mother told him he is Iraqi.  He also repeated his evidence that he obtained an Iraqi passport because he had an Iraqi birth certificate.   He also said that he was previously issued an Iranian visa using his Australian travel document and that this would not have occurred if he was Iranian.

18. The Tribunal pointed out that he has previously claimed to have departed Iran using a fake Iraqi passport whereas it now appears he held a genuine Iraqi passport.  He said that he was advised to obtain a fake Iraqi passport as it might be taken by the people smuggler and if ever he needed to return to Iraq he would need a passport.   He said he travelled with both his genuine Iraqi passport and the fake Iraqi passport.  He added that he also had a fake Iranian passport in his possession.  When asked where the genuine Iraqi passport is he said the people smuggler searched his bag and took all the passports.

19. The Tribunal asked the applicant to explain why the cancellation decision notes he produced ASIC records which state he was born in Iran on [date].  The applicant denied ever informing ASIC he was born in Iran.  However, he said that in some circumstances he says he is Iranian and in other circumstances he says he is Iraqi.  For instance, he said that the bulk of his work in Australia is with Iranian clients and it is easier for him to say he is Iranian.  He said that if he revealed he is Iraqi they would not trust him.  The applicant’s representative submitted that the applicant’s company was set up by his accountant who is Iranian.  The applicant said he conducts business with Iranian client’s and he speaks Farsi with his accountant.  It was submitted that this could account for the mistaken birthplace on the ASIC documents.

20. The applicant was asked if he has a copy of the Green Card issued to him in Iran.  He said that their Green Cards were taken from them when they returned to Iraq in 2006.

21. The Tribunal discussed with the applicant DFAT’s most recent advice on document fraud in Iraq which states that fraudulent documents are common and cheaply available.  The Tribunal informed the applicant that it will have regard to this information when considering how much weight to afford to the documents provided in respect of his father’s Iraqi citizenship.  In response the applicant stated that his father’s photograph in those documents closely resembles his own appearance.  The applicant stated that he could go to the Iraqi embassy in Australia to have those documents verified.  When asked why he had not done so to date he said he did not know.

22. The Tribunal noted the applicant’s prior testimony that he obtained a NSW drivers license after producing a fake Iranian drivers license.  The Tribunal indicated to the applicant that his willingness to present fraudulent documents to an Australia government agency also reflects poorly on his credibility.  The applicant responded that he acted on the advice of other people who suggested this would be the quickest and easiest way to secure a license.

23. As to the documents found in his brother’s possession the applicant expressed the view that it is not fair that he is penalised for the mistakes of his brother.   The applicant stated that his father did not have Iranian citizenship and the documents his brother obtained were fake.  He repeated his earlier evidence that he was able to easily obtain fake documents himself six years ago.  He confirmed to the Tribunal that his earlier evidence in respect of his brother’s discovery of Iranian documents in their father’s name is untrue.  He said his brother had the fake Iranian documents all along.

24. The Tribunal put it to the applicant that Iran’s documentation systems, including the procedures for getting and replacing a Shenasnameh and a passport, cast doubt on the claim that his brother’s documents were fraudulently obtained.  The applicant responded that his brother told him that he managed to get the fake Iranian passport in a manner very similar to the manner in which genuine passports are obtained and it was of a quality which could not be detected.  When asked to provide more detail about how the fake passport was obtained he said he does not know what his brother did. 

25. The Tribunal put also put it to the applicant that his Australian issued Titre de Voyage lists his place of birth as Samara, Iraq and that it therefore seems plausible the Iranian embassy officials may have accepted  he is Iraqi and on that basis issued him the visa.  The Tribunal put it to the applicant that him being able to portray himself as an Iraqi citizen to the Iranian embassy is not evidence that he is not an Iranian citizen.  The applicant responded that if he is Iranian it is impossible that the Iranian embassy officials would not know this because they scan the iris and take fingerprints and they would have these imprints in their data.  When asked if he underwent such procedures in order to get the visa he said he did not.  He added that he also extended his visa while in Iran.

26. The applicant stated that he returned to Iran two or three times after being granted a Protection visa.  He said he stayed in Iran for three months on the first two occasions and for six months after his father passed away.  He said that when his father died he had no choice to remain there as his family were alone.  He said they still do not know whether their father really died of [a] disease or for some other reason as the circumstances of how they recovered the body are suspicious.  When asked about the relevance of this information he said he provided the documents about his father’s death to prove his need to return to Iran.

27. As to his brother’s return to Iran he said he returned because his wife was pregnant and he couldn’t return to Australia because his visa was cancelled.  He maintained his family’s situation in Iran is bad and that they have to return to Iraq to renew their visas every three months.

28. The applicant confirmed he has undertaken additional travel out of Australia using his Australian issued travel documents.  He said apart from his trips to Iran all his other travels were to [Country 1].

29. The Tribunal put it to the applicant that in his submission of 7 June 2016 he states that he was misled when he was told that Iraqi’s had a better chance to stay in Australia.  The Tribunal indicated that one way of interpreting this is that he framed his claims for protection around being an Iraqi born citizen instead of using his true Iranian nationality.  The applicant denied making the statement.  When the Tribunal read the relevant section of the submission to the applicant he said he could not remember saying anything along those lines.

30. Before the hearing concluded the Tribunal advised the applicant that there are two non-disclosure certificates on the Department’s files.  The Tribunal referred to the first of the certificates and informed the applicant that it appears not to be a valid certificate because it refers only to internal working documents and business affairs and doesn’t provide a clear reason as to why it would be contrary to the public interest to disclose the information.  That said, the Tribunal advised the applicant that it had carefully reviewed all the information covered by the certificate and found most of that information to be relevant to the review.   The Tribunal informed the applicant that other than his original entry interview and a few procedural internal emails regarding the pending and actual cancellation of his visa the rest of the information relates to the questions which have been raised throughout the various proceedings in respect of his and his brother’s nationality.   Specifically, the Tribunal advised the applicant that the documents subject to the certificate include copies of the Iranian documents produced by his brother; information contained in a report based on an identity assessment conducted by the department, information contained in the request for an International Treaties Obligations Assessment; information relating to his travel in and out of Australia including passenger cards filled out by him.  The Tribunal stated that it is of the opinion that there is nothing of relevance in the information which has not already been thoroughly discussed with him.  The Tribunal invited the applicant to make any submissions on the validity of the certificate or any other comment in respect of this certificate.

31. The applicant did not respond to the matter of the certificate and nor did his representative.  Instead he reminded the Tribunal that he swore an oath to tell the truth.  He said he has admitted to certain untruths said before but has been open in his evidence before this Tribunal because he is tired.  He said he came to Australia when he was [age] and is now [older].  He said he does not know what will happen to his life and it will be impossible to start all over again if he is required to leave.  He said he has assimilated to the Australian way of life and has his business established here.  He also referred to volunteer work undertaken during the bushfire season.   

32. On the matter of the second non-disclosure certificate the Tribunal advised the applicant that it appeared to be a valid certificate as it covers information which was provided in confidence and identifies a third person by name.  In any event, the Tribunal advised the applicant that it is of the opinion that the information is relevant to the review and that it would therefore put the gist of the information to him for comment.   The Tribunal invited the applicant to make submissions on the validity of the certificate.  His representative responded on his behalf that he could not comment on the certificate but urged the Tribunal to reveal the gist of the information.  The Tribunal proceeded to put the gist of the information to the applicant pursuant to the requirements at s.424AA of the Act.  The Tribunal advised him that the department received an email sent by an individual on 19 March 2018 which states that his claim to be an Iraqi is not true and that he is an Iranian citizen.  Further, the email also alleges that he was jailed in Iran for criminal activity.   It also alleges that he has engaged in money laundering and corrupt and illegal practices in Australia.

33. The applicant responded immediately that the email was sent by [a person] who worked for him previously.  He said that person was [deleted] and he asked him to leave.  He said that the person threatened to tell immigration that he is Iranian and had a criminal past.   The applicant stated he has never been in jail and is a law-abiding businessman with a clear tax record.   He said he could produce witnesses to confirm what he has said about the author of the email.  The applicant’s representatives submitted that the information is contained in an email and is not a sworn piece of evidence.  He submitted the information should be given no weight and confirmed the applicant has no criminal convictions in Australia.   

    Post-hearing submission

34. On 4 September 2020 the Tribunal received the following:

    -Copy of the applicant’s Titre de Voyage

    -Letter from the applicant’s accountant

    -ASIC documents in respect of [two companies]

    -Submissions made to the Federal Circuit Court in former proceedings

    -Various photographs and documents in respect of the applicant’s relationship.

    Further hearing

35. The applicant attended a further hearing on 4 December 2020.  The Tribunal also heard evidence from a witness, Mrs [B].

36. Mrs [B] informed the Tribunal that she and [her] daughter are Australian citizens.  She said that she and the applicant have been in a relationship for four years but are not currently living together.  She said that previously they lived together for about a year when her daughter was [age] but out of respect for her daughter’s sensitivities they decided to live apart until such time as she was older and more comfortable with the arrangement.  Despite living apart she said that she and her daughter spend the bulk of their leisure time with the applicant.  Mrs [B] testified that she and the applicant are engaged to be married and their families are aware of this and support their plans.  She said that the applicant has not asked her to sponsor him on a Partner visa and she respects this as it shows that he is genuinely interested in her and not just seeking a visa to remain in Australia.  She said they are a very happy and committed couple and they intend to have children of their own.  She said that if the applicant is required to depart Australia she would have to go with him as she is completely loyal to him and depends on his companionship and emotional support.  She said that her daughter was born in Australia and has no interest in living elsewhere so she might be forced to wait until she is 18 and able to decide for herself whether she would join her mother and the applicant offshore.  Mrs [B] informed the Tribunal that her daughter doesn’t enjoy a close relationship with her birth father and is therefore very attached to her.  She that her daughter is a bit older now and is becoming more and more comfortable with her relationship with the applicant.  She said that her daughter and the applicant enjoy a close relationship and enjoy playing sports and doing a variety of activities together including sharing joint holidays.  She said her daughter would be very upset if he had to leave Australia.

37. The applicant testified that in the event his visa is cancelled he will not leave Australia voluntarily.  He said that he has lived here for 11 years and cannot conceive of starting his life again elsewhere at age [age]. 

38. His representative stated that the applicant cannot apply for a Partner visa as he does not hold a substantive visa.  He said that he would need to establish that compelling and compassionate circumstances exist in order to satisfy the Schedule 3 requirements.  He said that while the applicant has spent time back in Iran since being granted a Protection visa he did so as a result of his father’s death.

    Was there non-compliance as described in the s.107 notice?

39. 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 (a) and (b) in respect of the applicant’s answers to questions pertaining to his nationality.

40. The applicant maintains that he is an Iraqi citizen and fears harm in Iraq on account of his Shi’a Muslim religion. It was for this reason that he was granted the Protection visa which was subsequently cancelled.  Having carefully considered all the available evidence the Tribunal has formed the view that the applicant held Iranian citizenship when he departed Iran.

41. Firstly, on the evidence which is before it the Tribunal considers the applicant has provided an inconsistent and unconvincing account of his claimed place of birth.  As discussed with him during the hearing he has variously said that “he was born in Iraq”; that “he doesn’t know where he was born”; that “it now appears he must have been born in Iran”.  When the Tribunal raised his confused account of his place of birth with him during the hearing he denied making the contradictory statements referred to above.   The Tribunal has carefully reviewed the material before it and the transcript of the applicant’s hearing with the former Tribunal and is satisfied that the former Tribunal’s decision which confirms the inconsistency of his evidence provides an accurate account of his earlier oral evidence. 

100.   Further, while the applicant’s written submission of 17 August 2016 states both that he was born in Iraq and that he recently found out he must have been born in Iran, during the Tribunal hearing the applicant reverted to his earlier claim that he was born in Iraq.  While the Tribunal notes the applicant’s assertions that he never previously expressed any uncertainty about his place of birth his signed statutory declaration of 17 August 2016 which is outlined above also does not support this.

101.   The Tribunal finds it particularly concerning that despite a long and protracted process during which the applicant’s citizenship has been questioned repeatedly he has failed to provide proof of his claimed birthplace and nor does it appear he has made any concerted attempts to do so.  When this was discussed with him during the hearing he provided, what is in the Tribunal’s opinion, a vague and unconvincing account of his failure to do so. Initially, he mused that he didn’t quite know what had become of his Iraqi birth certificate and guessed that his aunty in Iraq might have a copy of it.  When asked if he had asked his mother, who he claims is resident in Iran and frequently travels Iraq, for assistance to obtain a copy of his birth certificate, he simply said she did not find it.  He did not elaborate on his discussions with his mother or his or her attempts to locate his birth certificate.  In further discussion he said that he didn’t think it was that important because he had provided a copy of his father’s birth certificate.   While the applicant now maintains that he somewhat belatedly attempted in 2019 to obtain a copy of his birth certificate through the Iraqi embassy in Australia there is nothing, other than the applicant’s own assertions to support this.  The Tribunal notes the applicant did not raise any reasons why he might have been unwilling or unable to contact the Iraqi embassy sooner and his claims for protection indicate he feared harm from non-state actors (Sunni’s) in his local area.  Having considered his evidence, and for all the reasons contained herein, the Tribunal is not persuaded that the applicant made any attempt to obtain a copy of an Iraqi birth certificate through the embassy in Australia.  Given the gravity of the situation facing the applicant the Tribunal finds his inaction over the course of the years to prove his claimed birthplace, together with his unconvincing evidence is respect of where he was born, to be significant and good cause to doubt his claimed place of birth.

102.   In support of his claim to have been born in Iraq the applicant now states that he was previously issued with a genuine Iraqi passport. During the hearing the applicant stated that he departed Iran holding a genuine and a fake Iraqi passport whereas it was previously claimed he departed Iran using a fake Iraqi passport.  He said he had a genuine Iraqi passport but also obtained a fake passport as he was told the people smuggler might confiscate his passport and he would be left with no travel document.  Despite knowing this, the applicant told the Tribunal that when he boarded the vessel he put all his travel documents in the one place, only to have both passports then confiscated by the people smuggler.  The Tribunal found his account illogical as it is clear from his evidence that he was aware the people smuggler might confiscate his documents.  The Tribunal is not persuaded that he held a genuine Iraqi passport when he departed Iran. The Tribunal considers it more likely that if he possessed an Iraqi passport at the time of his departure from Iran it was fraudulent as originally claimed.

103.   In addition to the above the Tribunal finds various of the applicant’s other statements regarding his true citizenship concerning.  For instance, the Tribunal notes that the applicant’s submission to the former Tribunal on 7 June 2016 states among other things “Although they (his family) were given Iranian nationality they were still considered second class citizens”.  In addition, the applicant stated that he had been misled in saying that Iraqi’s had a better chance to stay in Australia.  When the latter observation was put to the applicant during the hearing he again denied making such a statement and when presented with the evidence that he had done so he said he could not remember saying anything along those lines. Furthermore, the applicant conceded to the Tribunal that for convenience sake, depending on the circumstances, he variously claims to be Iraqi or Iranian which indicates he is not averse to providing false information to suit his purposes. The Tribunal considers this reflects poorly on his credibility and raises questions about whether his claims can be believed.

104.   As to the matter of the Iranian documents found in his brother’s possession on arrival in Australia, including an Islamic Republic of Iran passport and an Iranian Shenasnameh, the applicant stated categorically during the hearing that these documents were all fake.  In support of his claim the applicant informed the Tribunal, for what appears to be the first time in the proceedings, that after his previous assertion was disbelieved he personally obtained, through the assistance of a friend in Iran, a fake Iranian passport in his own name.  He said he did this in order to prove to the Department that the country information which questions the ability to obtain fraudulent documents in Iran is not correct.  In the Tribunal’s view it remains unclear whether such a document was indeed sent to the Department as there is no evidence of it on file.  The Tribunal notes the applicant claims to have subsequently destroyed the fake passport on his lawyer’s advice but if he had already provided it to the department there could be little value in doing so.  The Tribunal is not persuaded that the applicant procured and provided to the department a fake Iranian passport in 2016. 

105.   Further, on the one hand the applicant confidently claims to know that the Iranian documents his brother was found with are fake and he also claimed during the hearing that he and his brother had previously obtained fake Iranian passports prior to their departure from Iran in 2009.  The Tribunal finds it surprising then that on the other hand the applicant’s submission dated 12 February 2020 indicates an element of shock in that he states he “confronted” his brother about his possession of the Iranian documents when the matter came to light.  The Tribunal also notes the applicant’s evidence to the former Tribunal was that his brother told him that when he was searching for documents after his father’s death he discovered that his father had Iranian citizenship documents and he used those to fraudulently obtain his own documents.  The Tribunal put it to the applicant during the hearing that such action appears unnecessary given his oral evidence is that he and his brother had fake Iranian passports even before they departed the country.  The applicant conceded to the Tribunal that this aspect of the submission made on 12 February 2020 was untruthful.  Again, the Tribunal considers this reflects poorly on the applicant’s credibility.

106.   It was submitted by the applicant’s representative that their submissions to the court included the fact that the former Tribunal didn’t take steps to obtain or have the documents found in his brother’s possession forensically examined to determine if they were in fact fake.  While it may be true that the documents were not obtained by the former Tribunal there has never been any suggestion made by the applicant that they do not exist. As to having his brother’s documents forensically examined for all the reasons contained herein, including the country information referred to below in respect of the likelihood of persons being able to travel in and out of Iran using a fake passport,  the Tribunal has not found it necessary to do so. With his submissions in mind however, the Tribunal asked the applicant post hearing for his consent to contact the Iranian embassy in a bid to establish if he is a citizen of Iran.  The applicant gave consent to do so and on 12 October 2020 the Tribunal wrote to the Iranian embassy asking for verification of citizenship stating the applicants name and date of birth.  On 20 October 2020 the embassy responded that on the information provided the subject of Iranian citizenship of the person in question cannot be verified. The Tribunal took this advice to mean that the Iranian embassy can neither confirm nor deny whether the applicant is an Iranian citizen.   This advise was discussed with the applicant when he appeared before the Tribunal on 4 December 2020.

107.   In support of his claims the applicant has consistently argued that he has previously applied for and been granted visas to enter Iran and that this would not have been necessary or indeed possible if he was an Iranian citizen. The Tribunal accepts the applicant was granted visas to enter Iran but notes that the Australian issued travel document which was provided to the Iranian embassy when applying for the visas states the applicant’s country of birth is Iraq.   As discussed with him during the hearing the Tribunal considers this could account for why he was granted an Iranian visa without question.  The applicant refuted this observation and stated that it is impossible they wouldn’t know if he is Iranian.  However, as noted above the Iranian embassy has advised the Tribunal it was unable to confirm the citizenship of the applicant based only on his name and date of birth.  The applicant also referred to the use of finger printing and iris scanning technology to determine identity but conceded he had not been subjected to such procedures either in Australia or in Iran where he claims to have renewed his visa.  For these reasons the Tribunal is not persuaded that the applicant being granted an Iranian visa in the circumstances described above is proof he is not an Iranian citizen.

108.   The Tribunal has also had regard to the latest DFAT Country Information Report for Iran dated 14 April 2020 which indicates that in order to get a passport in Iran one must present in person to the appropriate office with copies of original identification documents including the Shenasnameh.  The information presented is matched with information available in the database of National Registration of Personal Status upon which a passport is issued.   DFATs most recent report on Iran states that Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use.  While DFAT reports it may be possible to obtain a genuine document with the intention of impersonating another person sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.  Local sources told DFAT that document fraud is extremely difficult for primary forms of documentation like passports, national ID cards and Shenasnameh.  Obtaining these documents is considered beyond the technical and financial means of most Iranians.  Passports and national ID cards have advanced security features including chips with the bearer’s biometric data making them difficult to forge and fraudulent copies easy to detect.  DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.

109.   The Tribunal acknowledges the applicant’s objections during the hearing to DFAT’s assessment and his claims to have previously obtained a fake Iranian passport.   However, in view of the credibility concerns expressed above and in the absence of evidence to support his claim the Tribunal is not persuaded he in fact obtained a fake Iranian passport.  The Tribunal notes that DFAT’s report draws upon on-the-ground knowledge and discussions with a range of sources in Iran.  It takes into account relevant open source reports, including those produced by the United Nations and its agencies, the US State Department, the World Bank, Transparency International, Human Rights Watch, Amnesty International, Freedom House, Reporters Without Borders, the Committee to Project Journalists, and local and international media.  The Tribunal has placed weight on DFAT’s assessment of the ability to obtain fraudulent passports in Iran.

110.   Based on the available evidence and the above country information the Tribunal also finds it unlikely that the Iranian passport found in his brother’s possession was fake.  The Tribunal notes that the delegate’s decision indicates that the applicant’s brother repeatedly entered and exited Iran using the Iranian passport found in his possession and as discussed with the applicant during the hearing this provides further support for finding his passport was unlikely to be fraudulent.  As the above country information shows in order to obtain an Iranian passport the applicant’s brother would have had to produce copies of his national identification documents including a Shenasnameh and Iranian National ID.  In the Tribunal’s view this is strong evidence that the applicant’s brother is an Iranian citizen.  The Tribunal is persuaded, on the available evidence that the applicant’s brother is the holder of an Iranian passport.

111.   Included in the submission to the former Tribunal is a copy (and translation) of a Shenasnameh issued by the Republic of Iran, in the name of the applicant’s father, [Name 1].  The applicant claimed in a statutory declaration made on 17 August 2016 that his brother obtained the fake Shenasnameh and Iranian passport using the false Shenasnameh his father appears to have obtained many years ago, unbeknown to them.  As noted above the applicant conceded during the hearing that the claimed manner in which his brother obtained the fake Iranian documents is not true.  The Tribunal acknowledges that the Shenasnameh of the applicant’s father refers to his birthplace as being Samaraa (Iraq) but is not satisfied that this means his father’s Shenasnameh is necessarily fraudulent.

112.   The Tribunal acknowledges the applicant has provided a copy of an Iraqi Citizenship Certificate and ID card in his father’s name and the submission that this is corroborative evidence that the applicant is not an Iranian citizen.  During the hearing the Tribunal discussed with the applicant DFAT’s reporting on documentation and the reported ease and affordability of obtaining fraudulent documents in Iraq.  The applicant responded that his father’s photograph on the identity documents closely resembles him and he suggested that he could go to the Iraqi embassy to have the documents verified.  When asked why he had not done so already he said he did not know.   The Tribunal considered the applicant’s offer but in view of his inaction to date, the available country information and the credibility concerns expressed herein, the Tribunal has proceeded in making the decision and given these documents no weight.

113.   The Tribunal has considered the applicant’s responses in respect of the ASIC documents which indicate his place of birth is Iran.  A letter from his accountant post-hearing supports his oral evidence that because his accountant is Iranian and he converses with her in Farsi his birthplace was mistakenly recorded as Iran on the ASIC document.  The letter from the accountant points to his travel document and states that this provides confirmation that the applicant is Iraqi.  For all the reasons contained herein the Tribunal is not persuaded that the applicant is Iraqi and the accountants reference to his travel document stating he is Iraqi does not alter this view because that reference to his birth place is on account of him previously, and erroneously in the Tribunal’s view, being found to be an Iraqi citizen in the decision to grant him a protection visa.  As it appears the applicant’s accountant has acted on his instructions and on the basis of the travel document provided to her to now amend the ASIC documents.  In view of the circumstances the Tribunal remains of the view that the applicant is not Iraqi and that the information previously contained in the ASIC documents is in fact the correct information.

114.   The Tribunal acknowledges that the applicant speaks Arabic in the Iraqi dialect but is not satisfied that this necessarily demonstrates the applicant is Iraqi or overcomes the concerns expressed above.  It is also acknowledged that the applicant gave his consent for the Tribunal to make enquiries about whether he is a citizen of Iran with the Iranian embassy in Australia which lends some support to his claim to not have any legal status in Iran.  The Tribunal has given this some weight but again it is not satisfied that this overcomes the credibility concerns expressed above.

115.   As to the information provided to the Tribunal on 19 March 2018 asserting that the applicant is an Iranian citizen with a criminal past in Iran and alleging illegal activity in Australia, the Tribunal accepts the submissions made by his representative regarding the reliability of this evidence and no weight has been afforded to this information in making this decision.

116.   The applicant maintains he is an Iraqi citizen but in the Tribunal’s view there is no convincing evidence before it to support this claim.  On the other hand, the Tribunal considers there is strong evidence before it to support that he is an Iranian citizen.  That is, a copy of a Shenasnameh in his father’s name, copies of his brother’s Shenasnameh and Iranian passport and independent country information regarding Iranian citizenship laws and the unlikelihood of being able to obtain fraudulent travel documents and to enter and exit Iran using fraudulent documents.

117.   Having considered the evidence in its entirety the Tribunal considers it likely the applicant was born in Iran and not in Iraq as claimed.  The Tribunal is satisfied the applicant’s father held Iranian citizenship and that on this basis the applicant is also a citizen of Iran because Iranian citizenship is automatically acquired at birth if the father is an Iranian citizen[2].  Accordingly, the Tribunal does not accept the applicant is stateless as submitted to the Tribunal on 17 August 2016.

[2] Article 976 of the Iranian National Code

118.   In view of the above findings, the Tribunal is satisfied that the applicant gave incorrect answers to questions 23 and 59 of part C of form 866.  Also, the Tribunal is satisfied that the statement “I have no status in Iran and cannot live there” which is contained in a statutory declaration made by the applicant on 7 October 2009 is incorrect. Accordingly, the Tribunal finds that the applicant did not comply with s.101(a) of the Act which requires an application to complete the application form in such a way that no incorrect answers are given or provided.

119.   The Tribunal finds that there was non-compliance with s.101(a) of the Act in the way described in the s.107 notice.

Should the visa be cancelled?

120. 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).

121. 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.

122.   The correct information

123.   The applicant maintains that he has not provided any incorrect information.  However, the Tribunal has formed the view that the correct information at the time of lodging the application for a protection visa is that the applicant was a citizen of Iran.

The content of the genuine document (if any)

124.   This consideration is not relevant.

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.

125.   The decision to grant the applicant a protection visa was made on the basis that he would suffer serious harm on return to Iraq on the basis of his Shi’a faith.  Contrary to his claims at the time to have had no other nationality, the Tribunal has found the applicant was a citizen of Iran at the time of lodging the application for a protection visa.   Therefore, the Tribunal finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa, including his accompanying statutory declaration. The Tribunal considers this factor weighs heavily in favour of cancelling the visa.

The circumstances in which the non-compliance occurred

126.   Regrettably the applicant has continued to deny that he provided incorrect information at the time of lodging the application for a protection visa.  He has also admitted to making untruthful statements to the Tribunal in a bid to overcome problems with his evidence.  The Tribunal considers this factor also weighs in favour of cancelling the visa.  

The present circumstances of the visa holder

127.   The applicant came to Australia 11 years ago and has established two profitable businesses in that time.  He claims he has always paid his taxes and has only ever operated within the law.  He said that he came to Australia when he was just [age] years of age and that he has become accustomed to the Australian way of life.  He said it would be very difficult for him to re-start his career again if he is required to depart the country.  In addition, the applicant claims, and the Tribunal accepts, that he has been in a relationship with an Australian citizen for about four years.  He said whereas they previously lived together for a while they are currently living separately out of respect for his partner’s daughter.  However, he said they remain a close couple and he hopes they will marry in the future.  He confirmed that his partner has a successful business of her own and does not need his financial support although he contributes to expenses incurred when they are together.

128.   The Tribunal accepts the applicant’s evidence in respect of his present circumstances and has some sympathy for the amount of time he has spent in Australia and the genuine relationships he has formed.  The Tribunal considers these factors weigh in favour of not cancelling the visa.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

129.   Regrettably the applicant has maintained that he did not provide any incorrect information despite the bulk of the available evidence indicating that he is an Iranian citizen.  The Tribunal gives this factor some weight towards the visa being cancelled.

Any other instances of non-compliance by the visa holder known to the Minister

130.   The Tribunal notes the concerns raised with the applicant during the hearing about the place of birth noted on ASIC documents. While the Tribunal continues to be of the view this information is further proof the applicant is an Iranian citizen it nevertheless considers the information to be true.  There appear to be no other instances of known non-compliance and the Tribunal has given this some weight in favour of the visa not being cancelled.

The time that has elapsed since the non-compliance

131.   The applicant was granted a protection visa some eleven years ago and in that time he has established strong personal and business interests in Australia.   The Tribunal gives this some weight towards the visa not being cancelled.

132.   Any breaches of the law since the non-compliance and the seriousness of those breaches.

133.   There is no evidence to indicate that the applicant has a police record in Australia although he conceded his driver’s license had been suspended.  The Tribunal has given this weight in favour of not cancelling the visa. 

Any contribution made by the holder to the community.

134.   The Tribunal notes the applicant’s contribution to the community by way of his commercial activity but his evidence is that he employs just three staff in total, only two of whom are Australian citizens.  The applicant has provided evidence to support that he volunteered his time to help communities affected by the bushfires in late 2019 and early 2020.  He also claims to provide cash donations to needy people on occasion.  The Tribunal gives these actions some weight in favour of not cancelling the visa.  

135.   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’. The Tribunal has considered the Departmental guidelines which include the following relevant factors:

Whether there are mandatory legal consequences, such as whether the cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

136.   Given the circumstances in this case there do not appear to be any other clear migration pathways open to the applicant in Australia.  The Tribunal also accepts he might face a ban on returning to Australia for a substantial period in the future if his visa is cancelled and he is removed from the country.  The Tribunal accepts this possibility but given he has been willing to spend significant periods of time in Iran since being granted a Protection visa the Tribunal does not consider this outweighs any factors in favour of cancelling the visa.

137.   In the event the applicant’s visa is cancelled, the Tribunal acknowledges the potential of him being detained as a consequence of his visa being cancelled.  While the applicant testified that he would die here rather than depart voluntarily the Tribunal is not persuaded by his evidence.  It would appear that he would be able to obtain a travel document for the purpose of his removal and return to Iran and be admitted to the country. The Tribunal notes he has returned to Iran on more than one occasion for months at a time after being granted a protection visa.  Relevantly, he has not claimed to have suffered any harm in Iran on those occasions.  Given his willingness to return to Iran on those occasions the Tribunal is not satisfied that the applicant would refuse to return there again if his visa is cancelled.  Therefore, the Tribunal is not satisfied that the applicant will be subjected to indefinite detention as a consequence of his visa being cancelled.  

Whether there would be consequential cancellations under s.140

138.   No consequential cancellations under s.140 will apply.

Whether any international obligations would be breached as a result of the cancellation, such as non-refoulment obligations, family unity principles or the obligation to consider the best interests of the child.

139.   In his application for a protection visa the applicant claimed that as an Iraqi citizen he had no legal status in Iran and his evidence is that his life growing up in Iran was hard as he was treated like a second-class citizen.  However, the Tribunal finds the applicant to be a citizen of Iran and it follows the Tribunal does not accept the applicant’s claims about him (and his family) being bullied and considered second-class citizens with limited rights to education, health care and travel and no rights to work.  The Tribunal also notes and finds it significant that the applicant has willingly returned to Iran for months at a time since being granted a protection visa and suffered no harm there.  While the Tribunal notes the applicant’s submissions regarding the suspicious nature of his father’s death he has not clearly articulated what he believes to be the real cause of his death.  Relevantly, he told the Tribunal that the relevance of the documentation in respect of his father’s death was to prove he had a legitimate reason to return to Iran after being granted a protection visa.  The evidence before the Tribunal is that the applicant’s father died of natural causes and there is nothing before the Tribunal to support that the applicant will be harmed on return to Iran in connection with either his father or his father’s death.   For these reasons, the Tribunal is not satisfied that there is a real chance or a real risk that he will face serious or significant harm if he were to return to Iran now or in the reasonably foreseeable future.

140.   Whereas the applicant claimed to be single when he appeared before the former Tribunal based on the current circumstances the Tribunal accepts he is now in a relationship of some four years duration with Mrs [B] and that by association he has developed a close relationship with her daughter.  While it appears her daughter may have resisted them living together in the earlier years of their relationship their evidence persuaded the Tribunal that she is now far more open to the prospect of them all living together in the near future.  Mrs [B] spoke passionately and convincingly about the relationship she and her daughter enjoy with the applicant.  The Tribunal was persuaded that she would be prepared to depart Australia herself in the event the applicant is unable to remain in Australia.  Based on Mrs [B]’s evidence, which the Tribunal found highly credible, her daughter does not enjoy a close relationship with her birth father whom she has very infrequent and unsatisfactory contact with.  On the other hand, Mrs [B]’s evidence persuaded the Tribunal that her daughter has regular physical contact with the applicant and benefits from his patient involvement in her daily life. Mrs [B] submitted, and the Tribunal accepts, that her daughter’s happiness and stability would be impacted by the applicant’s departure from Australia.

141.   In summary, the Tribunal considers there are some factors which weigh in favour of the applicant’s visa being cancelled.  Most notably, the applicant was granted a protection visa based on incorrect information and he has never sought to set the record straight about his nationality. The Tribunal considers this behaviour should not be condoned and that it puts at risk the integrity of the migration program.  Further, while the Tribunal acknowledges that disruption to the applicant’s life is an inevitable consequence of his visa being cancelled it is satisfied that he will not face serious or significant harm if he is required to return to Iran.  However, the applicant has now lived in Australia for eleven years.  He has established two successful businesses, has not been found to have breached any Australian laws and has demonstrated a commitment to strengthening the community through his volunteer actions in what was a particularly challenging period of time in New South Wales.  He also has an enduring relationship with his Australian citizen partner and her child.  

142.   The Convention on the Rights of the Child[3] to which Australia is a party, relevantly provided that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” and further that “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being”[4].  The Convention also provides for what is understood to be a protection of family unity, contained in several articles and the preamble that provide the right of the child to be cared for by his or her parents[5], preservation of family relations[6] and that children are not separated from their parents against their will unless such separation is necessary for the best interests of the child[7].

[3] Article 3, Convention on the Rights of the Child

[5] Article 7, Convention on the Rights of the Child

[6] Article 8, Convention on the Rights of the Child

[7] Article 9, Convention on the Rights of the Child

143.   While the abovementioned factors weighing in favour of the visa not being cancelled may not be considered sufficient to avoid cancellation of the visa the Tribunal is conscious of the requirement that the best interests of children are to be given primary consideration when deciding whether to exercise discretionary powers.  The Tribunal accepts that the cancellation of the applicant’s visa may lead to him being removed from Australia and while his partner has declared her willingness to depart Australia to maintain the relationship she made it clear that she would not do so until such time as her child had matured.  In considering this and the evidence advanced on her daughter’s behalf, the Tribunal has formed the view that the applicant’s removal from Australia would lead to the interests of the child in question not being given primary consideration as the only apparent father figure she has would be taken from her at a formative time in her upbringing.

144.   Having carefully considered the circumstances the Tribunal is persuaded, despite the seriousness of the non-compliance, that the factors weighing in favour of the visa not being cancelled combined with the best interests of the child outweigh the factors which weigh in favour of the visa being cancelled.  The Tribunal is of the view that in this case the visa should not be cancelled.

145.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

146.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Tania Flood
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.