1727894 (Refugee)

1727894 (Refugee) [2019] AATA 6885 (27 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727894
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Michael Hawkins
DATE:27 August 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 27 August 2019 at 5:38pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – false identity – citizenship – stateless Faili Kurd or Iranian citizen – previous travel to Australia and application for protection under another name, as Iranian citizen – identity proved by facial image comparison – religion – minority religion not recognised by Iranian government – credibility – factors for and against cancellation – family unity – extended family in Australia – statelessness claims of family members – no family support in Iran – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46, 48A, 101, 107, 109, 189, 198, 438, 424AA, 425
Migration Regulations 1994 (Cth), r 2.41, Schedule 2
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in her visa application form in contravention of the requirements of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The Tribunal noted that the applicant had requested a Kurdish Interpreter, but confirmed with the applicant, and her Representative, that she was satisfied with the Persian Interpreter who was present. It was agreed that the Representative would advise the Tribunal if the applicant was not understanding the Interpreter or if he believed an interpretation was not accurate. The parties agreed to proceed on this basis.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Background
The visa holder arrived in Australia as an Illegal Maritime Arrival (IMA) [in] November 2011 and indicated that she wished to apply for Protection.
[Later in] November 2011 a Protection Obligations Determination was commenced and [in] December 2011 the visa holder provided the following statement of claims:
“I was born in Khaniqin Iraq [on Date 1].
I am a widow with 2 daughters. Both of my daughter are here in Australia. I have never been to school and I have never worked.
I am stateless Faili Kurd.
My religion is Ahl-L Haqq (Iran)
The reasons I left:
I was born in Iraq and went to Iran when Saddam chased all the Kurds into Iran. We arrived in [named town], I stayed there the rest of my life until I came to Australia.
In Iran they were persecuting myself and my children. The Sepah and the Basij were persecuting us. When we went out they would always stop my children, they would recognise that we were Faili Kurds and they would bother us. We had a hard time. We could not speak Kurdish outside of our homes or we would be harassed.
We were always poor. The only work that my husband could do was some farm work for other people. We were not allowed to go to work. My children were not allowed to go to school. They did some school work in the house. My eldest daughter learned some things from a neighbour and then she taught her sister.
As my daughters got married and had their children everybody just all lived together, the house would just grow. It was a big area but it was a poor house, we did not have much furniture or anything.
When we first arrived in Iran the government permitted us to live in this house but over time they started demanding rent.
Also, my family belong to Ahl-L-Haqq religion. Our men are very recognizable by the moustaches. The men would not get jobs because of their moustaches. They would not shave their moustaches though, it is part of our faith.
My daughter’s husbands were part of the Green movement. They went to Kermanshah to a demonstration. They kept them there for 3 days, they had to sign something and then they released them. After this they were watching our family.
Then the men went to a religious meeting, I was not there, women do not go to the meeting. They had to go to Kermanshah to this meeting. They must have been followed because during the prayer they were arrested. At this gathering there were more than 15 or 20 people, I’m not sure. Both of my son in law’s and two grand’s were arrested but my granddaughter’s husband got away.
[My husband] came home in the middle of the night, I heard the girls crying, I asked what had happened and they told me not to worry. In the morning a friend of [my husband]’s came to the house and told us we need to leave the house and hide somewhere.
We left, we did not take anything, we were hoping to come back outside of the town. We went to place, while we were there we heard that the Basij had come to our house and taken our things. We could not go back. We stayed in the place we were at for around a month.
I did not really know what was going on, they did not want to worry me. They just said that they were making arrangements to come to Australia and did I want to come with them. Of course I had to come with them, all my children, I could not be left on my own.
What I fear may happen to me if I return:
They will kill me, they will hit me, they will put me in the jail because we ran away.
Who might harm me if I return:
The government.
Why I think that might happen to me if I return:
All my daughters sons, my grandsons are in jail and we have run away. Also I am Faili Kurd also because of my religion, Ahli-L-Haqq.
Do I think the authorities can protect me if I return:
No
Can I go anywhere else in my country, apart from where I used to reside?
No they will find me anywhere I go.”
On 2 May 2012 the visa holder lodged an application for a Class XA Subclass 866 Protection Visa. As part of this application the visa holder completed the form 866C “Application for an applicant who wishes to submit their own claims for protection.” In this form the visa holder provided the following information:
In response to question 1 which asks “What is your full name?” the [visa holder, Ms A] stated
Family name: [Surname 1]
Given names: [Given Name 1]
In response to question 4 which asks “What other names have you been known by? (such as name before marriage, previous married name, alias)” the visa holder did not provide a response.
In response to question 20 which asks “Your citizenship at birth” the visa holder stated “Stateless Iran”
In response to question 21 which asks “Current Citizenship (if different to at birth)” the visa holder did not provide a response.
In response to question 22 which asks “Do you hold any other citizenship or are you a national of any other country?” the visa holder checked the box “No”
In response to question 42 which asks “I am seeking protection in Australia so that I do not have to go back to”: the visa holder stated “Please refer to my statement of claims” referring to the above mentioned claims.
In response to question 43 which asks “Why did you leave that country?” the visa holder stated “Please refer to attached statement of claims” referring to the above mentioned claims.
In response to question 44 which asks “Have you experienced harm in that country” the visa holder stated “Yes, please refer to attached statement of claim” referring to the above mentioned claims.
In response to question 45 which asks “What do you fear may happen to you if you go back to that country?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.
In response to question 46 which asks “Who do you think may harm/mistreat you if you go back?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.
In response to question 47 which asks “Why do you think this will happen to you if you go back?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.
In response to question 60 which asks “Have you ever applied for refugee status or protection in any country other than Australia?” the visa holder checked the box “No”.
In an attachment to this form the visa holder declared the following family members:
List all members of the family unit [information deleted]:
Details of other close relatives who are not members of family unit, including non-dependent children, parents, sisters and brothers [information deleted]:
On the basis of this information and meeting all other requirements on 8 May 2012 the visa holder was granted a Class XA Subclass 866 Protection visa.
[In] September 2014 the visa holder departed Australia and stated on her outgoing passenger card that she would be travelling to [Country 1]. [In] October 2014 the visa holder arrived back in Australia and declared on her passenger card that she had spent most of her time overseas in Iran.
Subsequent to the grant of the Protection visa, information has been made available to the Department which indicates that the visa holder had previously travelled to Australia under another identity. The Department has determined based on this information that the visa holder has also been known [under the alias Ms B, comprised of Given Name 2 and Surname 2], an Iranian citizen, born [Date 2]. This is based on a facial image comparison examination using photographs the Department holds of the visa holder and Ms [B]. This examination was completed by a facial image comparison specialist.
According to Departmental records Ms [B] first arrived in Australia [in] March 2003 as the holder of a [Tourist] Visa and declared herself to be an Iranian citizen.
On 20 August 2003 Ms [B] lodged an application for a Class XA Subclass 866 Protection visa.
[In] February 2004 Ms [B] departed Australia.
On 25 March 2004 the Department refused the Protection visa application.
On 3 September 2009 Ms [B] lodged an application for a [Family Visitor] visa. This application was sponsored by her daughter [Child C, whose name incorporates Surname 3]. As part of this application a scanned copy of the applicant’s Iranian passport was provided. This passport contained the following details:
Passport No: [number]
Surname: [Surname 2]
Name: [Given Name 2]
Father’s Name: [name]
Date and Place of Birth: [Date 2, City 1, Iran]
Sex: F
Date of Issue: [2008]
Date of Expiry: [2013]
A translated copy of an Identity (ID) card was also provided. This card contained the following details:
Serial No.       [number]
ID Card No      [number]
Name:            [Given Name 2]
Surname:       [Surname 2]
Sex: F
Date & Place of Birth: [Date 2, City 1]
Date & Place of Issue: [date, City 1]
Father:            [name]
ID Card No. & Place of Issue: [number, City 1]
Mother:           [name]
ID Card No. & Place of Issue: [number, City 1]
Spouse:
Name & Surname: [Mr D, whose name incorporates Surname 3]
ID card No. & Place of Issue: [number, City 2, Iran]
Date of Birth: [date]
Date & Place of Marriage: [date, place]
Marriage Registry No. [number]
Children:

Name:

Name
National/ID Card No. Date of Birth

[Child E] [number] [date]

[Child F] [number] [date]

[Child G] [number] [date]

[Child H] [number] [date]

[Child I]
[number]
[date]

[Child C] [number] [date]

[Child J] [number] [date]

[Child K] [number] [date]

[Child L] [number] [date]

[Child M] [number] [date]

It is noted that the details for [two of the children] are very close to the details of the visa holder’s daughters that she declared as part of her 866 application.
[In] April 2011 Ms [B] again travelled to Australia as the holder of a [Family Visitor] Visa. Ms [B] then departed Australia [in] July 2011.
Notice of Intention to Consider Cancellation
A Notice of Intention to Consider Cancellation (NOICC) was issued on 16 June 2017.
The applicant responded to the NOICC on 31 July 2017.
The visa holder agreed there was non-compliance.
In her response provided to the Department, the visa-holder provided the following information:
·She has nine children: [Child C, Child E, Child G, Child H, Child I, Child J, Child K, Child L, and Child M].
·That she was born in Iraq and was forced to marry her husband [Mr N, whose name incorporates Surname 1] at the age of [age]. This marriage was not registered as they lacked the documents to do so.
·Her husband was unable to find stable employment as he was not a citizen of Iraq and they struggled to provide for themselves financially.
·In early 1956 when [their first child, Child H] was [age] they were on the brink of starvation. At this time, one of her husband’s distant relatives [Mr D] visited them. [Mr D] was infertile and from a wealthy Iranian family and made the family an offer that he would provide them with financial support if they gave birth to the children that he and his wife [Ms B (the same name as the applicant’s alias)] could not have.
·Over the next 10 years they gave [Mr D] and [Ms B] five children [Child C, Child E, Child G, Child I, and Child J]. The visa holder was not allowed to visit her own children or disclose details of their deal with [Mr D] to anyone because infertile men were looked upon as inferior in Kurdish tribes.
·[Mr D] moved to [City 2] (Iran) as he did not wish for the children to know about their real parents.
·After the birth of [Child C], [Mr D] informed the visa holder that he did not want any more daughters and so they kept their daughter [Child K] who was born in [year]. [Mr D] ceased providing financial support for their family until they gave him another son. They tried to have children in [year] and [year] but the visa holder had miscarriages as she was physically and mentally ill. They did not have the finances to treat her illness and her condition therefore continued to worsen.
·In [year] and [year] she had two further sons, [Child L] and [Child M] who were both given to [Mr D].
·In 1979 the visa holder and her family were expelled from Iraq to Iran.
·[Mr D] continued to visit the family in Iran and threatened that he would harm her daughters if the family ever tried to visit [City 2].
·15 years after their expulsion from Iran the visa holder received a letter advising her that [Ms B] had passed away. The letter included [Ms B]’s identification document, her passport, a sum of money and the contact details for the seven children that she had given up.
·The visa holder and her husband took these documents to a forger who swapped [Ms B]’s photo for her own in the documents and added [the two daughters she raised herself, Child H] and [Child K] to the ID document. They requested that the forger include their name as [Surname 3] so they could claim that they were [Mr D]’s children and thereby obtain Iranian citizenship. [Child K]’s name was [misspelt].
·They were unable to obtain citizenship as they needed [Mr D]’s ID documents and they could not tell him about the contents of [Ms B]’s letter.
·She secretly contacted her seven adopted children and told them about [Child H] and [Child K].
·[Mr D] passed away in 1999.
·After [Child C] and [Child J] came to Australia they asked her to visit them, however, she could not leave her husband who was unable to travel as he did not have documents.
·After her husband passed away in 2003 she travelled to Australia to visit her children with [Ms B]’s passport.
·On 20 August 2003 she lodged an application for a Class XA Subclass 866 Protection visa.
·She could not declare her real identity as she was hoping that Australia would accept [Child H] and [Child K] as [Ms B]’s children so that she could bring them to Australia. The visa holder’s daughters were not aware that she had travelled to Australia.
·[In] February 2004 she left Australia due to the passing of her sister. The visa holder had to attend the funeral as her daughters were attending and her absence would have appeared suspicious.
·The visa holder travelled to Australia again between [April] 2011 and [July] 2011 using [Ms B]’s passport.
·In September 2011 the Basiji came to her house and took the ID document and the passport.
·That all the claims she made in her application in December 2011 were true and accurate.
·That when she submitted the application she was under the impression that she had responded honestly to all the questions.
·That she travelled to [Country 1] between [September] and [October] 2014 and did not travel to Iran and that she may have inadvertently provided incorrect information.
·She has not travelled to Iran since the grant of her visa.
·That she continues to fear persecution in Iran.
The response provided by the visa holder’s Migration agent also includes the following information:
·That while questions 4 and 60 of the application form 866C were answered incorrectly, the circumstances that led her to do so were quite extreme and to some extent beyond her control.
·That upon close examination of the translated ID it can be deemed that the document has been forged as the date of birth of [Child H] is prior to the date of marriage of [Ms B] and [Mr D]. In Iran having a child out of wedlock can be punishable by death and therefore no official authority in Iran would have added the child to the ID document.
·That it is common for protection applicants to use fraudulent documents to travel to Australia.
·That the visa holder believed that any information which related to her actions whilst using [Ms B]’s fraudulent identity did not make them her own and therefore did not declare this information.
In support of her claims the visa holder has provided the following:
·A scanned copy of her Titre De Voyage issued [August] 2014 and valid until [August] 2016. This document contains entry stamps for [Country 1] dated [September] 2014 and [December] 2015 and exit stamps dated [October] 2014 and [December] 2015. There is no other evidence of travel on this document.
·Scanned copies of her SA Ambulance Cover membership in the name Ms [A].
·A Health care card, expiring on 31 December 2018 in the name [Ms A].
·A Medicare card in the name [Ms A].
·A Proof of Age card from South Australia in the name [Ms A].
·A [travel agency] invoice for travel for return travel between Adelaide and [Country 1] between [September] 2014 and [October] 2014.
·Undated photographs of the visa holder in [Country 1].
·A letter from [Ms O(with Surname 3)] advising that the visa holder stayed with her in [Country 1] between [September] 2014 and [October] 2014.
Delegate’s Decision

The visa holder has provided incorrect information with her application for a Class XA Subclass 866 Protection visa. The visa holder claimed as part of her application that she was stateless and that she did not have the legal right to reside in Iran. The visa holder claimed that the Iranian authorities discriminated against her on this basis and could not provide her with Protection. The visa holder also claimed that if she returned to Iran the authorities would harm or possibly kill her.
Following the grant of her Protection Visa, the Department has determined that the visa holder has previously travelled to Australia under another identity and has claimed to be an Iranian citizen. The visa holder previously provided the Department with evidence of this citizenship. This contradicts the visa holder’s claim to be stateless. Further, the visa holder has declared that she has travelled to Iran. This contradicts her claim that she could not return to Iran for fear of being harmed. Given this information the delegate considered that the visa holder is in fact an Iranian citizen and not stateless as she has claimed in her Protection visa application.
The Protection visa was granted on the basis that the visa holder satisfied the Minister that she engaged Australia’s protection obligations under the Refugees Convention. The visa holder claimed that she is stateless and that she fears harm from the Iranian authorities. The visa holder claimed because of these fears, she could not return to Iran. These claims were fundamental to the determination that the visa holder is a person to whom Australia has protection obligations. The incorrect information the visa holder provided was material to this determination, and it now appears that the visa holder is an Iranian citizen and was so at the time of her protection visa application and not stateless as she has claimed. Additionally, the visa holder has subsequently travelled to Iran without apparent harm, suggesting that she is not at risk of persecution. The visa holder therefore may not have engaged Australia’s protection obligations.
The delegate therefore considered that the visa holder has not complied with s.101(a) of the Act because she did not provide an answer to the following questions:
·At question 4 the visa holder did not declare that she was known by any other name. This is incorrect as the visa holder has also travelled to Australia under the name [Ms B].
·At question 21 the visa holder did not declare her current citizenship. This information is incorrect as the visa holder is a citizen of Iran.
The delegate therefore considered that the visa holder has not complied with s.101(b) of the Act because she has provided incorrect information on her application for a Class XA Subclass 866 Protection Visa. Specifically, the delegate considered that the visa holder has provided incorrect information in response to questions 22, 43,45,46,47 and 60 as follows:
·At question 22 the visa holder declared that she did not hold citizenship of any other country. This is incorrect as the visa holder is an Iranian citizen.
·At question 43 the visa holder stated that she left Iran because she feared persecution from the Iranian authorities as a stateless person. This information is incorrect as the visa holder is an Iranian citizen.
·At question 45 the visa holder stated that she feared she would be harmed if she returned to Iran because she fears persecution from the Iranian government as a stateless person. This information is incorrect as the visa holder is an Iranian citizen and she has declared that she has since returned to Iran without apparent harm.
·At question 46 the visa holder stated that the Iranian authorities would harm her as she is stateless. This information is incorrect as the visa holder is an Iranian citizen and she has declared that she has since returned to Iran without apparent harm.
·At question 47 the visa holder stated that the Iranian authorities would harm her as she is stateless. This information is incorrect as the visa holder is an Iranian citizen and she has declared that she has since returned to Iran without apparent harm.
·At question 60 the visa holder declared that she had not previously applied for refugee or Protection status. This information is incorrect as the visa holder has previously applied for a Protection visa in 2003 under the name [Ms B].
As the visa holder has provided incomplete and incorrect information in her application for a Class XA Subclass 866 Protection visa, the delegate determined that the visa is liable for cancellation, and was cancelled on 3 November 2017.
Review Hearing
The Tribunal acknowledged the receipt of a Psychologist’s report dated 17 July 2019. The Tribunal noted that the applicant attends the Psychologist pursuant to a Mental Health Care Plan authorised by her General Practitioner. The Tribunal also noted that whilst her Doctor has given a diagnosis of anxiety and depression, due to language barriers, the Psychologist is yet to formally support this diagnosis or offer an alternative diagnosis. However, the Psychologist has observed that the applicant has trouble remembering events in the past as well as more recent events.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel her protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in her application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of her visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(a) and (b) of the Migration Act, referring amongst other things to the answers the applicant had provided in her application for a protection visa regarding her protection visa claims. The Tribunal noted that based on all of the evidence before her the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 8 May 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and her representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration as having been read. The applicant and representative agreed.
The Tribunal reminded the applicant that the Delegate had found that she had previously travelled to Australia under another identity. That other identity was Ms [B] who was an Iranian citizen born [Date 2].
The Tribunal asked the applicant whether she, [Ms A] had previously travelled to Australia under a passport of Ms [B]. The applicant confirmed that she had and that [she, Ms A] and Ms [B] are one and the same person.
The Tribunal asked the applicant whether she had any evidence of her marriage to Mr [N]. The applicant replied that she had no evidence, that she had no documents and that the marriage was carried out in accordance with custom and ritual. She stated that it was a pledge. The Tribunal asked if she had any photos or witness statements from anyone who may have attended the wedding. She replied that she had nothing as everything had been left behind when they fled.
The Representative indicated that he was satisfied that the applicant understood the NOICC, the reply, and the decision of the Delegate.
Section 438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at Folios 1 - 33, 113 - 120 contain documents or information that relate to Departmental investigative procedures and the disclosure of these documents may impede further investigations. Further, these documents contained information relating to third parties, the disclosure of which would be a breach of privacy.
A copy of the Certificate was provided to the applicant at the hearing and to the applicant’s representative.
The Tribunal has considered the material identified in the Certificate and considers the Certificate is valid.
The Tribunal spent considerable time explaining to the applicant and the Representative what the contents of the folios were. It explained that many pages related to a facial image comparison report of the applicant which considered photos of the applicant at various times of entry into the country. The Tribunal is satisfied that disclosure of those documents would telegraph the Australian Government’s investigative processes.
Other documents contained within the folios relate to an anonymous report provided to the Department containing significant adverse interest about the applicant and her family. The Tribunal, whilst discussing the contents, confirmed that it was unable to disclose the documents themselves as disclosure may identify a third party who has made a report to the Department on the condition of anonymity. Notwithstanding, the Tribunal did discuss with the applicant the adverse information during the hearing pursuant to s.424AA.
The Tribunal asked the applicant whether she had any comment to make in relation to the s.438 Notice. The representative advised that it was satisfactory.
The Tribunal discussed with the applicant her previous travel history from Iran to Australia. It also discussed her original Protection Visa Application. The applicant stated that she couldn’t remember making a Protection Visa Application in August 2003.
The Tribunal reminded the applicant that she had first arrived in Australia [in] March 2003 pursuant to a Tourist Visa and declared herself to be an Iranian citizen. She had travelled on that occasion under the name of Ms [B].
As reminded, Ms [B] lodged an Application for a Protection Visa on 20 August 2003.
However, before the Protection Visa was considered, Ms [B] departed Australia [in] February 2004.
The Department refused the Protection Visa Application on 25 March 2004.
The Tribunal reminded the applicant that on 3 September 2009, Ms [B] lodged an Application for a [Family Visitor] Visa. Ms [B] then travelled to Australia again [in] April 2011. She departed again [in] July 2011.
The Tribunal asked the applicant why she would ever consider returning to Iran if she feared the persecution that she claimed. She stated that she had to return to her family.
The Tribunal noted that after departing [in] February 2004, it was some 5½ years before she applied for another visa to Australia and a further 19 months before she departed Iran again. And then after arriving for a second time, she departed Australia again after only three months.
The Tribunal asked her again why she returned to Iran if she genuinely feared the persecution she had claimed.
The applicant replied that she returned because one of her daughters was unmarried and that she had to return in order to be her guardian.
The Tribunal asked the applicant how she managed to explain to her daughters why she was away for so long. She replied that she would tell her daughters that she was on a pilgrimage to Iraq.
The Tribunal then asked the applicant why it took her seven years in order to return to Australia, again extraordinary given the nature of the fears she claimed. The applicant replied that she waited until her daughter was married. However, she stated that she didn’t trust her son-in-law with the unmarried daughter. And so she had to remain in Iran in order to be her unmarried daughter’s guardian.
The Tribunal asked the applicant why she returned to Australia in July 2011. She replied that her Australian children wanted her back in Australia.
The Tribunal confirmed with the applicant that in Iran, the family all lived together in poverty in one house, and that she returned to Iran in 2004 because it would have appeared strange to her daughters if she hadn’t returned. The Tribunal expressed its concern that she had not been able to explain to it how she had explained her absence for nearly one year to her daughters.
She replied that [Mr D], her distant cousin, and to whom she claims she sold her children, had told her that she was not allowed to tell her daughters about the rest of her family.
The Tribunal expressed its further concern that [Mr D] had in fact died in 1999 and that she had been in Australia in 2003 and 2004. How could it be that she was unable to tell her two daughters about the rest of the family when she had in fact made contact with, and visited, her other children?
The applicant replied that she told her daughters that she was going to Iraq.
The Tribunal asked the applicant how she came to have the passport and ID of Ms [B]. The applicant explained that when Ms [B] died, her will instructed her friend to track down the applicant and to give her the ID and a sum of money.
The applicant then went on to explain how she changed the ID to include her current photo and the additional names of her two daughters.
The Tribunal acknowledged that the applicant had travelled to Australia in 2003 using a passport of Ms [B]. It asked the applicant that notwithstanding that was the way she had travelled to Australia, why would she not apply for the Protection Visa that she applied for in 2003 in her real name of [Ms A]. In that way, she would have no difficulty with the identity of her two daughters.
She replied that she had no ID at all in the name of [Ms A] - in fact, no documents at all. She said she had the ID of Ms [B] and then went on to explain that she is illiterate. The Tribunal noted that in her second attempt at a Protection Visa Application, the applicant again had no documents.
The Tribunal expressed its concerns about the inconsistency in the applicant’s explanations. She stated that she was concerned that she couldn’t apply for a Protection Visa in the name of [Ms A] in 2003 as she had no documents, yet when she did ultimately apply for the Protection Visa using the name of [Ms A] in 2011, she had no ID or documents. Nothing had changed.
The applicant attempted to explain that she came to Australia legally in 2003, but that her two daughters would not have got in. The Tribunal reminded the applicant, however, that all children including the two so-called [Surname 1] daughters were actually on her ID. The applicant replied that she was worried that the ID would be seen as a forgery.
The Tribunal raised a concern again that the ID document appeared to have all the features of a genuine Iranian document and indeed had the National ID Card number for the older so-called [Surname 1] daughter on it. Furthermore, the ID document had been notarised by the Iranian Ministry of Foreign Affairs. Like the delegate before it, the Tribunal expressed its concerns that the applicant would not have willingly provided the ID document to the Iranian authorities if it were not a genuine document and that it appeared as though it had been notarised as a genuine document. The applicant did not reply.
The Tribunal turned to the second Protection Visa Application in 2011 and enquired of the applicant why she had not told the Department about her previous Application in 2003 or told the Department about all of her children.
The applicant replied that she had been at sea for some time and was confused.
The Tribunal discussed with the applicant a number of concerns it had about the documents that the applicant held and their respective dates.
The Tribunal noted that the applicant claimed that Ms [B] had died in 1994. The Tribunal enquired as to how Mr [D] could not have registered her death, particularly in light of Article 22 of Iran’s Civil Registration Law which states that the death of each person, whether Iranian or foreign national, must be notified to the official or agent of the National Organisation for Civil Registration. Simply, death must be registered, including vital statistics relating to the deceased, his/her parents and his/her identity card.
And then there is the matter of her passport which was issued in 1998, some four years after Ms [B]’s alleged death.
The Tribunal enquired of the applicant how a passport could be obtained for a dead person. The Tribunal noted that the passport had had multiple uses, including through [Country 2] and [Country 3].
The Tribunal noted that the passport had in fact been renewed twice.
The applicant replied that the ID documents were given to her but she knows nothing else about it.
The Tribunal noted that in order to secure a passport, one must attend the Passport Office personally. It again enquired of her as to how she managed to get a passport without going to the Passport Office personally. She replied that she went with her husband and a friend.
The Tribunal discussed with the applicant Country Information that had been discussed by the delegate relating to the very sophisticated border control procedures in Iran which would make it difficult for anyone to pass through the airport with fraudulent documentation. Country information describes the process for passing through Imam Khomeini International Airport, Tehran:
“The first security check takes place upon entry from the public area into the terminal area for travellers only. The passenger’s luggage will be checked at this point. The luggage goes through a scanner and if anything looks suspicious, the Immigration police will take the person aside and open the suitcase. The passport of the person travelling is checked and the person passes through a detector (women and men go through separate detectors). This check is the responsibility of the Immigration Police.
After passing through the luggage check the passenger goes to the check-in counter. At the check-in counter, flight personnel will check in the passenger’s luggage, check the visa and issue a boarding pass. If anything is wrong in terms of visa or passport, the flight personnel will contact the Immigration Police.
After check-in, the passenger goes to a counter where Immigration Police conducts a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.
The passport and the exit visa are verified. The data of the passport holder appears on the screen, together with a photograph of the traveller. If the person is married and has children, the photos and names of his wife and children will also appear on the screen. If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen.
When the security check is completed, and if the person is allowed to leave Iran, an exit stamp will be stamped in the passport. The person travelling now enters the duty free zone.
Before entering the area with flight gates, yet another security check is conducted. This is a physical check where the hand luggage is scanned and the passenger goes through a metal detector. This security check is conducted by the Revolutionary Guards. The Immigration Police and the airline personnel conducted the previous checks.
The very last check is done just before boarding, where the traveller shows his or her boarding pass. Airport personnel conduct this check.”[1]
“After leaving the aircraft the person enters an area with counters for passport checks. There are separate counters for foreigners and Iranians. The Immigration Police who are sitting inside a booth behind a glass window conduct this security check. The Immigration Officer scans the passport and registers all the personal data from the passport of the arriving passenger in the computer system. The personal information is already registered in the computer system. The information includes a photograph of the passport holder and this photograph appears on the screen. The Immigration Officer checks the validity of the passport and if the person is entering Iran on illegal grounds or has outstanding issues with the authorities he will be held responsible in accordance to Iranian law, rules and regulations.
If the passport cannot be scanned by the computer system, the Immigration Officer will enter the passport number manually.
According to Sajdrabi, the computer system is a few years old and has been able to identify forged visas, passports and other documents.”
[1] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, 87E00CD0EB83/0/iran_report_final.pdf?bcsi_scan_80CA22F9AD71C623=0&bcsi_scan_filename=iran_report_ final.pdf

The Tribunal asked the applicant how she could have passed through the airport on at least four occasions with, as claimed, an altered document. She replied that she didn’t know.
The Tribunal discussed the applicant’s visit to [Country 1] in 2014. It noted that on her return to Australia, her completed passenger card, which the Tribunal went to some lengths to describe, indicated that the applicant had stated herself that she had in fact been to Iran. The question on the passenger card which asks where she had spent most of her time abroad was answered with the single word “Iran”.
The applicant replied that she had not been to Iran. She said she had been to [Country 1] two times and asked why would she go to Iran.
The Tribunal agreed with her and asked her why she would go to Iran, especially after having applied for protection from Iran. The Tribunal asked her again why she would state that she has been to Iran.
The Representative responded by saying that the applicant is illiterate, however, the applicant stated that no one filled in any card on her behalf. She explained that she recalls having her bags inspected on return, having handed over a bag of mixed nuts et cetera, but states that she did not complete a passenger card. She implored the Tribunal to believe her when she said she has not been back to Iran.
The applicant then referred to photos and a letter from her daughter that stated she had been to [Country 1]. The Tribunal noted that the photographs were undated, but did not dispute that she may have been to [Country 1] at some stage.
The Tribunal asked the applicant what passport she had used when she came out in late 2011 as an IMA. She replied that she had used a false passport to leave Iran and that the false passport was organised by her family.
The Tribunal asked what name was on that false passport. She stated that she couldn’t remember. Nor could she remember where the false passport went, whether it was given to anyone or thrown overboard by people smugglers.
The Tribunal asked the applicant why she hadn’t used the passport in the name of Ms [B]. She replied that the Police had come to their house before they left and confiscated her passport and ID documents.
The Tribunal noted its concerns, as the delegate had before it, about why the authorities would seize her passports and ID documents in September, which was some two months after her return to Iran in July 2011 using the passport and ID of Ms [B].
The Tribunal again noted the sophisticated border control procedures and noted its concerns as to how the applicant, given her numerous departures from Iran, could have departed Iran using a false document.
The Tribunal explained to the applicant that it was going to discuss some of the adverse information that had been received pursuant to an anonymous letter sent to the Department which it had discussed at the commencement of the hearing.
The Tribunal explained that under s.424AA, the Tribunal would put that adverse information to her and, subject to her response, may form the view that her claims are not genuine and thereby have to affirm the decision of the delegate.

100. The Tribunal asked the applicant whether her daughter, [Child K], went to university in Iran and subsequently worked as [an Occupation 1]. The applicant replied that was not the case. She stated that a good neighbour helped out with the education of the children.
101. Still under s.424AA, the Tribunal asked the applicant about her daughter, [Child K]’s, [Social Media 1] account, noting that her daughter used as her [Social Media 1] identity [Surname 3] which is the surname of her father [Mr D], and the husband of Ms [B]. The Tribunal explained that [Social Media 1] is a means by which people can remain in contact with each other so, on that basis, why would her daughter use [Surname 3] which is, in fact, the name identified on the ID card of Ms [B] and the surname of her husband [Mr D]. The applicant replied that she didn’t know.
102. The Tribunal queried a comment that the applicant made that when she received the will of [Ms B] in 1995, she stated that she asked [Mr D] to change the daughter’s names to [Surname 3] but that he refused. The Tribunal noted that this was completely inconsistent with the applicant’s written statement wherein she said that she was unable to obtain citizenship of the so-called [Surname 1] daughters as they needed [Mr D]’s ID documents and that they could not tell him about the contents of Ms [B]’s letter.
103. The Tribunal expressed its concern that the applicant appeared to be stating that she spoke to [Mr D] about changing the name of the two daughters yet, at the same time, maintained that it had to be kept a secret. The applicant replied that she didn’t get his ID card.
Was there non-compliance as described in the s.107 notice?
104. 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 s.101(b).
Conclusion on non-compliance
105. In making its findings the Tribunal has taken into account the report of the psychologist provided to the Department of Immigration dated 17 July 2019 and the preliminary diagnosis of a depressive disorder and anxiety. The Tribunal has also taken into account the Tribunal’s Guidelines on the Assessment of Credibility (including the effects of anxiety on applicants), but these materials and matters do not overcome the fundamental concerns the Tribunal has with the applicant’s credibility as set out below. The Tribunal notes that the applicant was able to freely answer questions at the hearing and participate in the review process and the Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.
106. The Tribunal is satisfied on the basis of the numerous inconsistencies in evidence provided to this hearing and statements previously made by the applicant, that the applicant’s version of events that she has outlined in her response to the NOICC is not credible.
107. The Tribunal is satisfied that the applicant is not stateless, but rather is an Iranian citizen and was so at the times she applied for a Protection Visa and was granted a Protection Visa.
108. The applicant agreed with the Tribunal that she had previously travelled to Australia under another identity. That other identity was [Ms B] who was an Iranian citizen born [Date 2].
109. The applicant agreed that [Ms A] and [Ms B] are one and the same person.
110. The applicant claimed to have been married to Mr [N]. The applicant stated that she had no evidence of that marriage whatsoever, including no certificates, photos or witness statements. She had no record of his death. She stated that she had nothing as everything had been left behind when they fled. The Tribunal noted, however, that the applicant had visited Australia on at least two occasions prior to her departure in which she claims she fled.
111. The applicant agreed that she had first travelled to Australia from Iran [in] March 2003 pursuant to a Tourist Visa. At that time, she had arrived in Australia pursuant to a passport in the name of [Ms B] and she had declared herself to be an Iranian citizen.
112. Although the applicant couldn’t remember making a Protection Visa Application in August 2003, she was reminded that she had made an application for a Protection Visa in the name of [Ms B] [in] August 2003.
113. The applicant acknowledged that she had departed Australia [in] February 2004. Her Protection Visa Application was refused on 25 March 2004.
114. The applicant claimed that she returned to Iran in order to be the guardian of her unmarried daughters.
115. The applicant applied for another Tourist Visa some 5½ years after her departure in February 2004. It was a further 19 months before she departed Iran for Australia. And she departed Australia a second time after only three months following her arrival.
116. The Tribunal does not accept the genuineness of the applicant’s evidence or of her claims of her fears in Iran on the basis that she has travelled to Australia twice and returned to Iran twice and remained in Iran for a period of seven years in between her visits to Australia. That conduct is not consistent with someone claiming to have genuine fears of persecution on the grounds of her statelessness or her religion.
117. The applicant’s credibility was not enhanced by her inability to explain to the Tribunal how she had managed to explain her absence for nearly one year to her two daughters. Whilst she stated that she had been on a pilgrimage to Iraq, she went on to add that she had not been allowed to tell her daughters about the rest of her family as [Mr D] had insisted as much. The Tribunal struggled with the plausibility of this explanation given that [Mr D] had, in fact, died in 1999, that she had been to Australia in 2003 and claimed to have made contact with her other seven children well before then. It is not plausible that she had any reason not to tell her two daughters about her other seven children in 2003 or that she was visiting some of them in Australia.
118. The applicant claimed to have been given the identity of [Ms B] in circumstances whereupon the death of [Ms B], a friend of [Ms B] forwarded to her [Ms B]’s ID, passport and cash. [Ms B] had died in 1994. The applicant claimed that she had changed the photo on the passport and had added her two daughters to the ID card to represent that [Ms B] had nine children instead of seven.
119. The applicant stated that she was worried about the ID card as it had been altered. She was worried that it might be seen to be a forgery. The applicant’s first representative also maintained that it would be seen to be a forgery as the oldest daughter and her date of birth were included on the ID notwithstanding that her birth predated the date of the marriage by [Ms B] to [Mr D]. The Tribunal discussed with the applicant that the ID document had all the features of a genuine Iranian identification document, had a National ID Card Number for all of the children on it and that it had been notarised by the Iranian Ministry of Foreign Affairs. The Tribunal disputed that the applicant could have been nervous about the ID card when, in fact, she had presented it as a genuine document for notarisation by the authorities.
120. The Tribunal spent some time discussing the dates of the passports of [Ms B], noting that the date of issue of the first version of the passport that the applicant had used was 1998, some four years after the death of [Ms B].
121. The Tribunal spent considerable time discussing the requirement to register the death of Iranian people. It discussed why [Mr D] would not have registered the death of his wife [Ms B] upon her alleged death in 1994 given the requirement on him to do so. It discussed with the applicant how a passport could have been issued in [Ms B]’s name four years after her death which death would have been duly registered.
122. The Tribunal also discussed with the applicant the number of times the passport had been used, which included two trips to Australia, and a trip to and from [Country 2] and [Country 3].
123. The Tribunal discussed Country Information with the applicant relating to the very sophisticated border control procedures in place in Iran which would make it difficult for anyone to pass through an airport with fraudulent documentation.
124. Accordingly, the Tribunal discussed how implausible it would have been for the applicant to proceed through any checkpoints, and on as many occasions as she did, using the passport and other ID of a dead person or a passport and ID that had been altered as she claims it had been.
125. The Tribunal is satisfied that the ID and passports of [Ms B] were both genuine and that the applicant is in fact [Ms B]. Such is the only plausible explanation as to how the applicant had managed to travel through so many checkpoints at Tehran Airport on so many different occasions without issue. It is the only plausible explanation as to how the applicant obtained new passports on two separate occasions, where personal attendance at the Passport Office was required.
126. Furthermore, it is the only plausible explanation as to how the applicant managed to depart Iran in late 2011 and to again evade security at the point of departure. Her statement that she used a false passport, but could not remember the name on the passport or where the false passport ended up, is so implausible as to be far-fetched. The Tribunal does not accept that the applicant’s identity documents and passport were stolen during a raid on her home by the Basij. The Tribunal does not accept that she could have used a fake passport after having been through Iranian airports previously using a genuine passport.
127. The Tribunal had discussed with the applicant, under s.424AA, adverse information that the department had obtained from an anonymous source. That information included that the applicant’s daughter, [Child K], used a [Social Media 1] account in the name of [Child K, with Surname 3], which is the name on the applicant’s ID form - being the ID in the name of [Ms B]. The applicant replied that she did not understand why her daughter would do that. The Tribunal is satisfied, having seen copies of the [Social Media 1] account, in the name of [Child K, with Surname 3], that the reason the applicant’s daughter uses that [account] is because it is in fact her real name, that she is the daughter of [Ms B] and [Mr D].
128. The Tribunal also noted the applicant’s visit to [Country 1] in 2014 and her response on a passenger card where she advised that she had spent most of her time abroad in Iran. When questioned about this, the applicant stated that she couldn’t remember completing a passenger card, though claimed to have excellent recall of the circumstances of her arrival in Australia. The Representative, in his post-hearing submission, suggested that someone had filled in her passenger arrival card for her with wrong information.
129. Based on the grave concerns the Tribunal already has about the applicant’s credibility and the concerns about the genuineness of her claims, the Tribunal is quite satisfied, given the applicant’s history of returning to Iran to visit family, the Tribunal has little doubt that the applicant returned to Iran in 2014 also. The Tribunal finds the letter received from the applicant’s daughter who stated that the applicant had been staying at her place whilst in [Country 1] to have been fabricated for the purposes of supporting the applicant’s claims.
130. Given that the applicant has conceded to providing incorrect information to the Department intentionally, the Tribunal has the most grave concerns about the applicant’s credibility and the genuineness of her claims. The Tribunal’s view of the applicant’s credibility is further supported by the applicant’s inability to explain why she did not declare her Australian family members when she arrived in November 2011, instead seeking to explain that she was confused and seasick. The Tribunal is quite satisfied that the applicant tried to conceal her previous visits to Australia and the identity and nationality under which she so travelled to Australia.
131. For these reasons, the Tribunal finds that there was non-compliance with s.101(a) and (b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
132. 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).
133. 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.

134. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
135. The applicant claimed in her Protection visa application that she would be killed or harmed by the Iranian Government if she returned to Iran because she had run away, was a Faili Kurd and because of her religion Ahli-L-Haqq.
136. The correct information is that the applicant was an Iranian citizen and has declared that she has returned to Iran without apparent harm and that she had previously applied for a protection visa in 2003 under the name of [Ms B].
The content of the genuine document (if any)
137. The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document

138. The decision to grant the applicant her protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.
139. As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that she had been given incorrect answers about her claims in her application for the visa.
The circumstances in which the non-compliance occurred

140. The applicant arrived in Australia as an Illegal Maritime Arrival (IMA) [in] November 2011 and indicated that she wished to apply for Protection. [Later in] November 2011 a Protection Obligations Determination was commenced and on 11 December 2011 the visa holder claimed she was born in Khaniqin Iraq [on Date 1], was a widow with 2 daughters who are both now here in Australia. She claimed to have never been to school and to have never worked, claiming she was a stateless Faili Kurd and her religion is Ahl-L Haqq.
The present circumstances of the applicant

141. The Tribunal is grateful to the applicant’s Representative for providing a very detailed submission post-hearing.
142. The Representative states that the applicant is already suffering from a range of sicknesses whilst being over 80 years of age. He states that she has no support mechanisms in Iran. He states that her return to Iran would cause her severe harm and hardship to her life and liberty and that she would not be able to cope with such pressure.

143. The Representative states that the applicant is over 80 years old and is from Iran where the average life there is much below her current age. He states that the applicant comes from a background of having given birth to nine children and having, in addition, had two abortions. He states that this has taken its toll on her life and made her a weak and sick person. He states that she has lived in a very poor family which deprived her from a quality of life wherein she was forced to obey her late husband and was forced to keep giving birth to children.
144. The applicant states that she has found great relief after reuniting with her children in Australia and states that it would not be kind and would be inhumane to cut her off from her children and their families and send her back to Iran.
145. The Tribunal notes the applicant’s Medical Certificate which was submitted to it and which states that the applicant is currently suffering from lung cancer, depression, hypertension, gastritis, knee replacements and vocal cord paralysis. It notes that she requires constant medical support for her survival. She is able to receive emotional support from her large family members living in Australia.
146. The Tribunal notes that the applicant has six children living in Australia. It notes that she has 12 grandchildren and five great-grandchildren all living in Australia.
147. The Tribunal notes that the applicant has only one daughter still living in Iran. It notes from the submission that that daughter has recently been diagnosed with terminal cancer which is at an advanced stage. The Tribunal notes from the submission that that daughter is in the process of seeking migration to [Country 1] to join her own daughter there.
148. The Tribunal notes the Representative’s submission that the applicant will have no family support in Iran. He also notes that as the applicant has never worked in Iran, she will not be entitled to any pension payment.
149. The Representative has also asked the Tribunal to consider decisions by the Tribunal (differently constituted) in South Australia wherein the Tribunal has already accepted the statelessness claim of the applicant’s daughter and her children.[2]
[2] AAT Case 1728588.
150. The Representative has also asked the Tribunal to consider the Tribunal Decision (differently constituted) relating to the applicant’s granddaughter, again in South Australia, which also accepted the statelessness claim of the applicant’s granddaughter.[3]
[3] AAT Case 1730857.
151. The Representative further invites the Tribunal to consider the decisions of the Tribunal (differently constituted) in matters dealing with the applicant’s grandchildren, all of whose visa cancellations were set aside.[4]
[4] AAT Case 1729154.
The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act

152. The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless returned to Iran through [Country 1].
Any other instances of non-compliance by the applicant known to the Minister

153. The applicant advised that there had been no breaches of her visa terms.
154. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance

155. The Tribunal notes that her visa was cancelled on 3 November 2017 and that more than one and a half years have since elapsed. The applicant advised that the cancellation of her visa was causing her great stress, that she can’t travel and that therefore she cannot see her daughter who has been diagnosed with advanced cancer. She said it was also impacting on her own health.
Any breaches of the law since the non-compliance and the seriousness of those breaches

156. The applicant advised that she has not breached any law, not even a traffic offence.
157. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community

158. The Tribunal notes that the applicant has become an active member of [a named organisation] and acknowledges a letter of support attesting to the applicant being an active member and participant in their group information and social services program.
159. The Tribunal also acknowledges a letter from [a named church], advising that the applicant has been attending their services.
160. The Tribunal also accepts that the applicant has integrated into her community and has formed a number of close friendships.
Whether there would be consequential cancellations under s.140
161. There are a number of children, grandchildren and great-grandchildren of the applicant in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa and the finding by this Tribunal that the applicant is not stateless as claimed but is an Iranian citizen. The Tribunal notes the many decisions of this Tribunal (differently constituted) that have nevertheless set aside cancellations of visas of many of the applicant’s family members.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
162. The Tribunal is mindful of the applicant’s extensive family connections and network in Australia.
163. The Tribunal is mindful of the decisions of this Tribunal (differently constituted) which have set aside the visa cancellations of many of the applicant’s direct relatives.
164. The Tribunal is mindful of the fact that the applicant’s family members in Australia would face hardship if the applicant were required to return to Iran.
165. If the applicant’s visa is cancelled, she would be subject to s.46(1) of the Act, barring him from applying for a further Visa in Australia (including a Bridging Visa) unless the Minister exercises her non-compellable discretion. Further, if the applicant’s visa is cancelled, she would be subject to the s.48A(1B) bar. She would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.
166. The Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.
Conclusion
167. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By her deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
168. However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time.
169. The Tribunal is very mindful of the applicant’s advanced age and her precarious medical conditions. The Tribunal notes that the applicant has no family support network in Iran but for one daughter who has been recently diagnosed with an advanced form of cancer and who is seeking migration to [Country 1]. The Tribunal notes from the numerous letters of support from family, friends, church and associations that it would appear that the applicant has integrated favourably into her community.
170. In addition to all of the findings herein, including the willingness of the applicant to deceive the Australian authorities, the Tribunal notes the applicant’s concession that she has provided incorrect information to the Department. Further, the Tribunal has noted that the applicant has been prepared to maintain a fiction as to her identity before the delegate and this Tribunal, the explanation for such fiction being completely implausible and against the weight of evidence that supports her identity as [Ms B] who has previously travelled to Australia under valid passports and using ID’s issued by the Iranian authorities. The Tribunal is satisfied that the applicant is not a generally credible witness, however, after weighting the considerations identified above and particularly in paragraphs 142 – 151 and 153 - 160, the Tribunal is minded to exercise its discretion in the applicant’s favour on the basis of family unity principles and its obligation to consider the best interests of the applicant.
171. 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
172. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 6885

27 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Appeal

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