1732350 (Refugee) - [2020] AATA 2233

1732350 (Refugee) [2020] AATA 2233 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732350
COUNTRY OF REFERENCE:                   Other
MEMBER:Kate Millar
DATE:29 May 2020
PLACE OF DECISION:  Adelaide
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 29 May 2020 at 4:16pm
CATCHWORDS
REFUGEE – cancellation – protection visa – incorrect information in the visa application – nationality – claimed statelessness – Iran citizenship – return visit to Iran – passport renewal – imputed political opinion – asylum seekers – race – Faili Kurd – religion – conversion to Christianity – consideration of discretion – non-refoulement obligation – best interests of children – Australian citizen children – access to medical treatment – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007
Migration Act 1958, ss 101, 104, 105, 107, 109
Migration Regulations 1994, r 2.41; Schedule 2
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
Kaur v Minister [2017] FCAFC 184
MIAC v Khadgi (2010) 190 FCR 248
Thakur & Ors v Minister [2020] FCCA 1038
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] provided incorrect information in her visa application in claiming she was stateless. The delegate found she was a citizen of Iran. 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 7 February 2020 to give evidence and present arguments and was represented by her registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
[The applicant’s] husband, [Mr A], had his visa cancelled for the same reason. He also applied for a review of the decision in the related matter 1732348. The matter was heard on the same day and immediately prior to the hearing of this application. The submissions and claims are the same in both applications. [The applicant] said she wanted to adopt her evidence in [Mr A’s] matter as her oral evidence in this matter and adopt all other evidence for [Mr A’s] matter for her application.
[The applicant] relied on the same information, made identical claims about the provision of incorrect information and as to whether the visa should not be cancelled. The exception is some information separately put to or given by [the applicant] in her matter, which is detailed below.
The Tribunal adopts its reasons in the related matter in deciding this matter. These reasons are included below.
[THE APPLICANT’S] EVIDENCE
[The applicant] was asked if there was anything she wanted to alter or comment on in relation to her oral evidence given at the hearing of the associated matter, and she said no, that she and her husband share everything, and they have provided all the evidence for both of the applications. She said she had no further evidence.
As a result, the Tribunal did not canvass again the matters raised in the earlier hearing, except where these would not be known to [the applicant].
The Tribunal separately put to [the applicant] the contents of the police report regarding the specificity of the items reported lost to [Police]. [The applicant] said she had already provided a response to the report of the loss of the passport, and that if she has a passport she would be an Australian citizen by now. [The applicant] commented on the police report, a copy of which was provided to her, and she said that her husband’s age is incorrectly reported as [age], whereas he only tuned [that age] this year. She says she asked police to provide an interpreter. As detailed, below, the Tribunal does not accept that the police report is inaccurate.
The Tribunal also put to [the applicant] inconsistent evidence on the circumstances of [Mr A’s] arrest in Iran, and she said there are things she cannot remember because she has been living in Australia and has forgotten.
It was also put to her that her evidence about [Mr A’s] treatment following being detained by the basij was different to his account, and that contained in the visa application. In response she said when she was asked if he had ever had surgery she thought that meant by a surgeon and so she said no. In her village if people knew anything about medical matters that person would come. In this case, the medical person came, used herbal medicine and [provided limited treatment to Mr A]. It is not done in hospital by a surgeon. She had answered that he came home but did not say who was with him when he came home. As detailed below, the Tribunal place limited weight on these inconsistencies.
[The applicant] said if her visa is cancelled they will have nowhere to go and nothing to eat. One of her sons wants to join the military and she wants to make his dreams come true.
The Tribunal places greater weight in [the applicant’s] case on the medical reports of her mental illness as a factor that weighs in favour of not cancelling her visa.
CONCLUSION
For the same reasons as given in the decision below, the decision in [the applicant’s] matter is finely balanced. Her eligibility for the visa was significantly affected by the incorrect information provided. She has not made a contribution to the community from arrival. However, she has three children, two of whom are Australian citizens, and one of whom has a medical condition, which weighs heavily in favour of not cancelling the visa. [The applicant] has a mental illness and requires treatment for her illness that may not be readily available in Iran.
For the reasons given below in relation to [Mr A], 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. Having had regard to all the relevant circumstances the Tribunal has concluded that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Kate Millar
Senior Member
STATEMENT OF DECISION AND REASONS IN THE MATTER OF [MR A]
CASE NUMBER 1732348
APPLICATION FOR REVIEW
[Mr A] came to Australia in 2010 from Iran with his wife [the applicant] and son [Mr B] and claimed to be a Shia Faili Kurd who did not have citizenship in any country. [Mr A] and his family were granted protection (Subclass 866) visas on 14 October 2011. They have since had two children in Australia, who are Australian citizens.
In 2013, [Mr A] reported items lost to [Police]. According to the delegate, this included the loss of Iranian passports for himself, his wife and his son. [Mr A] disputes that he reported the loss of passports.
The delegate cancelled [Mr A’s] visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that he had provided incorrect information in his visa application, as the delegate concluded he was a citizen of Iran and not stateless as he had claimed.
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE HEARING
[Mr A] appeared before the Tribunal on 7 February 2020 to give evidence and present arguments and was represented by his registered migration agent. The Tribunal also received oral evidence from his wife [the applicant]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
On commencement of the hearing [Mr A] confirmed he understood the interpreter. After adverse information was put to [Mr A] by the Tribunal he asked for, and was provided, an opportunity to confer with his representative. On resuming the hearing, [Mr A] said he was not satisfied with the interpreter and the interpreting was not exact. He said he knew this as his had representative pointed it out during the adjournment.
The interpreter is an accredited interpreter. No issue had been raised with the interpreting up to the time adverse information was put to [Mr A]. [Mr A] had been providing answers that logically followed the questions asked of him, and there was no indication he had not understood the interpreter, or that the interpreter had not interpreted the questions and his answers correctly. The Tribunal considered there was little to support his concerns and decided to continue with the hearing. [Mr A] was provided an opportunity after the hearing to review the recording of the hearing and make any further submissions on the interpreting during the hearing. No further submissions on this issue were received.
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 s.101 of the Act. This requires a non-citizen to fill in or complete his or her application in such a way that all questions on it are answered, and no incorrect answers are given or provided.
The exercise of the cancellation power under s.109 of the Act requires that the Minister has issued 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.
Did the notice comply with the requirements in s.107?
In this case, the delegate became aware of a report of missing Iranian passports made to [Police] by [Mr A]. On this basis, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107. Two notices were issued under s.107 of the Act, with the later notice correcting a date from the earlier notice. The Tribunal has considered the notice dated 1 August 2017.
Section 107 sets out a series of requirements for a valid notice. The first is that the notice includes particulars of the possible non-compliance.
The non-compliance identified and particularised in both of the s.107 notices was non-compliance with s.101 of the Act in that [Mr A] gave the following answers to questions asked of him in his application for a Protection (Class XA) visa:
·     At question 19 of Part C of the application form (Form 866B) which asked Your citizenship at birth the answer given is “Stateless”
·     At question 20 of Part C of this form which is Your current citizenship the answer given is “n/a”
·     At question 21 of Part C the question is Do you hold citizenship or are you a national of any other country’ and the response given is No
·     At question 42 of Part the question is Why did you leave that country and the answer is Please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form.
The notice goes on to specify [Mr A’s] claims in his statement of claims. [Mr A] claimed they decided to leave Iran to seek security and a place they could have an identity and their child could have a future. He claimed to have suffered violence from the Basij when he was detained in Elam two years before the application. [Mr A] states the Basij kicked him in the stomach and as a result he was injured, and had to have an operation after the beating. He says they borrowed money for the operation as they had to have a private doctor and private treatment or he would not have been able to be treated. He was told not to come to the city again. [Mr A] states although he was married 7 years earlier they do not have a marriage certificate, or formal recognition of their marriage and their son does not have a birth certificate.
[Mr A] says the Green Card his father had expired many years ago and was not renewed. [Mr A] said he does not have a card and does not believe a Green Card would help him as it does not give him any citizenship rights in Iran.
A further question at 45 of the application form asks Why do you think this will happen to you if you go back and the answer is Please refer to my statutory declaration.
In summary, [Mr A] states the Iranian government is pleased to see Faili Kurds leave and will not allow them back. He states if forced to return he fears they will be imprisoned and suffer harm as the government would view them as people who have dishonestly tried to escape, and treat them as people who are against the state of Iran. He states they cannot get protection from the Iranian state and its agents as they are non-citizens. His wife could not go into the city of Elam due to fear of the Basij. He states they have never been to Tehran or any other city, and only travelled to the airport when they left the country. He states if they return they will be interrogated about their departure and this will mean trouble as they are stateless. He states there is nowhere they can relocate as no country will accept them. He states they have lived their whole lives in Iran without any rights.
The s.107 notice specifies that on [a date in] May 2013 he attended a Police Station in [Australian State 1] and reported that on 16:30 on [the previous day] in the [specified area] near [location] he lost the family’s Iranian passports. An incident report number is provided. The items lost are said to be passports in the names of [Mr A], [the applicant] and [Mr B], cash to the value of $[amount], a gold ring valued at $1,000 and a watch valued at $200.
The notice specifies that the answers to questions 19, 21, 22, 23, 42, 45 and 46 are incorrect because there is evidence [Mr A] held an Iranian passport and therefore is a citizen of Iran. Leaving aside that question 46 was not raised earlier in the notice, the notice provides particulars of questions alleged to have been incorrectly answered and the information which the Department has relied on to find that [Mr A] is a citizen of Iran and is not stateless as he claimed in his application.
Given the information set out above, the Tribunal is satisfied the notice sets out particulars of the non-compliance and complies with s.107(1)(a).
The Tribunal finds the notice complies with s.107(1)(b),(c),(d),(e) and (f).
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 in all material respects.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance specified is that [Mr A] provided incorrect answers on this visa application in answering that he was stateless and was not a citizen of any country.
This will turn on whether [Mr A] was stateless as he claimed in his application for a protection visa, or is a citizen of Iran. A stateless person, as defined by Article 1 of the United National Convention relating to the Status of Stateless Persons, is a person who is not considered a national by any State under the operation of its law.
A finding that he is a citizen of Iran has grave consequences for [Mr A] and his family. He came to Australia seeking protection and has been granted a protection visa. If his visa is cancelled, he may be removed to a country where he says he fears harm. As a result the Tribunal has approached its task cognisant of the gravity of this decision, and also mindful that it lies on the Minister to establish that a ground to cancel his visa exists; and, as it applies in this case, it does not require [Mr A] to show he is not a citizen of Iran.
In this case there are three main items that could lead to a conclusion about [Mr A’s] citizenship. The first is that it is alleged he reported lost Iranian passports for himself, his wife [the applicant] and their eldest child [Mr B] to [Police], the second is that he travelled to Iran in 2013 and there is no evidence of entering and exiting Iran on an Australian travel document, and the third is inconsistency in his claims from his entry interview.
Allegation that [Mr A] reported lost Iranian passports
The delegate records that a police report was made [in] May 2013 in which [Mr A] is reported to have lost three Iranian passports. [Mr A] states he did not report the loss of passports, he reported that he had lost a bag with some personal documents. He denies that at any point he said “passport” or indicated that such a document was in the bag. It is submitted he only said “Iran” when the officer asked where they were from.
The decision record of the delegate then records details of the police report including the incident number, the time, date and location of the reported loss, the details of what was lost; this was three Iranian passports in the names [Mr A], [the applicant] and [Mr B], cash to the value of $[amount], a gold ring valued at $1000 and a watch valued at $200.
It was submitted by [Mr A’s] representative that when [Mr A] and [the applicant] went to the police station all they were able to say in English consisted of variants on “bag” “papers” “lost” and “Iran”. It is claimed the officer said “passport” to which they said “no passport” and from this the officer inferred they had lost their passports and, in combination with their origin from Iran, assumed they had lost Iranian passports. It is submitted their English was poor and no interpreter was provided. It is submitted they were asked to sign forms they could not read, and which were not explained to them, one of which was a report of lost Iranian passports.
This information was contained in a submission from the representative and was not supported by a statutory declaration or a statement from [Mr A]. As it was not supported by any information from [Mr A], the Tribunal issued a request to him for information under s.424(2) of the Act, requesting information on what was reported as lost to [Police] [that day in] May 2013.
As it was disputed what was reported lost to [Police], the Tribunal summonsed the [Police] records of the police report. The information in these records was put to [Mr A] in writing before the hearing under s.424A of the Act. The information put to [Mr A] was the [Police] incident report recorded that [in] May 2013 he reported Iranian passports in the names [Mr A], [the applicant] and [Mr B] were lost, together with a watch, ring and cash.
At the hearing, [Mr A] said that his wife was shopping with their [child] and lost her handbag which contained a ring, money and a Medicare card. They went to the police station and asked for an interpreter, but this was refused and they were asked questions. He said they reported a gold ring lost, cash of $[larger amount], a Medicare card and a concession card.
It was put to him that the police report was very specific about what was lost. It detailed the brand of the watch and the colour of the ring together with the value of these items and a specific amount of money, and that it specifies Iranian passports in the correct names with the names spelled correctly. [Mr A] was provided the opportunity to examine the police report with his representative.
[Mr A] provided a further statutory declaration dated 7 February 2020 after the hearing, together with a statutory declaration in nearly identical terms from [the applicant].

In this, he declares that in May 2013 they were new to Australia and could not speak English. He said they were asked questions by a police officer they thought they could understand but time has shown this was wrong. He said they told the police officer they had lost documents by which they meant “Centrelink cards, Medicare or even bank cards”. He said after inspecting the police report he can see his address is not recorded and his age is incorrectly recorded as [age] when at the time he was [much younger]. He acknowledges the report includes the brand of the watch and the amount of money but does not include his address, his exact date of birth, bio information from the passports and the given names of the people who allegedly lost their passports. He denies he mentioned anything about passports and says he does not understand why [Police] would not have obtained an interpreter. He goes on to identify what he says are other errors made by other government departments in relation to the nationality recorded for his wife and son on their travel documents and an incorrect place of birth of his son and claims this shows that government departments make mistakes.
[Mr A’s] age is incorrect in the police report. The address and mobile number appear to have been redacted by [Police], and the Tribunal does not accept these were not recorded. [Mr A’s] full name is correctly recorded and the surname [of the applicant] is correctly recorded. The report contains details such as the brand of the watch and the colour of the ring. The Tribunal considers this an accurate record of what was reported to Police. It does not accept that Police would record passports lost if [Mr A] conveyed documents. It finds [Mr A’s] explanation that he reported documents such as Centrelink documents, Medicare and bank cards lost not credible, and is a recent invention to explain how the documents were reported lost.
The Tribunal finds [Mr A] reported three Iranian passports lost to [Police] [in] May 2013 in the names [Mr A], [the applicant] and [Mr B].
Travel to Iran in 2013
In the decision record, the delegate concludes that the reason [Mr A] reported lost passports [in] May 2013 was to obtain replacement Iranian passports for his travel to Iran [in] October 2013. The delegate refers to instructions on obtaining or renewing lost or stolen passports from the website of the Embassy of the Islamic Republic of Iran. The delegate notes there is a requirement to produce a police report to obtain a replacement passport.
[Mr A] denies this is the case, as he denies that he reported lost passports and maintains he is a not a citizen of Iran.
This information, while in itself circumstantial and of limited weight, is supported by the proximity of the report to the time [Mr A], [the applicant] and [Mr B] travelled out of Australia, as the police report of the lost passports is five months prior to this travel.
In a notice issued under s.424(2) of the Act, [Mr A] was asked to provide information to show his location during the entire time he was out of Australia in the period [October] 2013 and [December] 2013, and a copy of the passport or travel document on which he travelled.
The travels documents are of some importance in this matter, as at the time [Mr A] travelled to Iran, a person travelling on an Australian travel document was required to apply for a visa, and this visa was affixed to the travel document.[1] It was not until 2019 that President Hassan Rouhani instructed that foreign visitors travelling to Iran would no longer have passports stamped or any other record entered into their passports,[2] however in practice this appears to have ceased in late 2018.[3] Iranian nationals who hold dual nationality must enter and exit Iran on Iranian travel documents.[4]
[1] A May 2009 DFAT report provided information which indicated that, at that time, a person travelling to Iran on a foreign passport would have been required to have an Iranian entry visa stamped in their passport. ‘CIS Request No. IRN 9702; Iranian air force lieutenant involved in activities against Islam’, Department of Foreign Affairs and Trade (DFAT), 18 May 2009, CX226385, ‘Traveling to Iran? Top 9 reasons that your trip might not go as planned’, Fehilly, A, IranWire, 17 August 2016, CX6A26A6E8047
[2] ‘No more passport stamps for foreign nationals visiting Iran’, Tehran Times, 24 June 2019, 20191107110620, ‘Foreign tourists’ passports won’t be stamped in Iran’, Baghishov, E, Trend News Agency, 19 June 2019, 20190819160036
[3] ‘Iran Will Not Stamp Foreign Tourists’ Passports’, Radio Zamaneh, 19 June 2019, 20190816113207, ‘Iran stops stamping passports’, Jalili, S, Al-Monitor, 3 July 2019, 20190704095825, ‘Iran issues e-visa to attract foreign tourists’, Xinhua, 24 November 2018, 20191107103244
[4] >
The Tribunal requested [Mr A’s] travel documents as a straightforward way to support his claim that he is not an Iranian citizen and did not report the loss of Iranian passports to [Police]. If, as he claims, he travelled to Iran on an Australian travel document in 2013, country information cited above means he would have an Iranian visa and entry and exit stamps for Iran entered into his Australian travel document. It transpired this was not straightforward.
In response to the notice issued under s.424(2), [Mr A] provided an itinerary showing he travelled to Iran in the period [October] 2013 to [December] 2013, transiting through [a specified city]. He also provided a copy of a [different police service] Report dated [in] January 2017 reporting the loss of Australian travel documents, birth certificate and Australian passports. It states:
we are not sure when exactly we lost them becaues, [sic] on 15th february 2017 when we were asked by our migration agent to provide the travel documents and passport, we looked everywhere for them.the last time we used our travel documents and birth certificate was about 3 weeks ago when we had to provide a copy to my son’s school.
[Mr A] said at hearing that to travel to Iran they required a visa. He said a friend helped him to go on a website and fill out a form. He said he sent two photographs and a money order of around $120 per person. He posted this to the Iranian embassy in Canberra. He could not recall what the visa looked like, but thought it was similar to an Australian visa and was cream and red. He was asked if he could provide a bank statement showing the payment for the visas, however he said he used cash. He did not get a receipt for the visa. He said he could not think of anything else that would show the Tribunal that he obtained a visa to travel to Iran.
[Mr A] said his Australian documents were lost after they purchased a property and moved house in 2014, and this was reported to the police immediately. He said the last time he had seen his Australian passport was when he returned from Iran in 2013.
It was put to him this was different to the information in the police report, which places the loss of the documents at late January 2017, as he reported that he used the documents three weeks before the date of the report, when he provided a copy to his son’s school.
[Mr A] then said he had a photocopy of his passport and had provided the photocopy to the school and not the actual documents. The Tribunal asked why the photocopy had not been provided to it when he was asked for his travel documents. He then produced a photocopy of the front page and one other page of a titre de voyage for himself and [the applicant].
The copy of the titre de voyage for [Mr A] records his nationality as stateless and his place of birth as Ilam. It was issued [in] August 2013, prior to his departure to Iran [in] October 2013. He provided a second page of his titre de voyage which contains his Subclass 866 visa and an Immigration Entry Stamp to Australia dated [on a date in] December 2013, which is the date he returned from Iran. It does not contain a visa for Iran or entry to or exit stamps from Iran.
On her titre de voyage [the applicant] is stated to be an Iraqi citizen. [Mr A] said this shows mistakes are made, as she is also stateless. [Mr B’s] change of name certificate says his place of birth is Iraq. He also stated [the applicant’s] citizenship on her Australian travel documents is Iran, when on the copy provided to the Tribunal, her nationality is Iraqi.
The titre de voyage provided for [the applicant] also had a second page which contains her Australian visa and an entry stamp to Australia on [a date in] December 2013. It contains a copy of the same page with her Australian visa, but without the entry stamp. It does not include a visa for Iran, or entry or exit stamps for Iran.
It was put to [Mr A] that the copies of the titre de voyage do not include visas for Iran and the Tribunal may find this was because he did not require a visa because he entered Iran on an Iranian passport. [Mr A] said he has no Iranian documents, and that he did not copy the pages of the titre de voyage with the Iranian visa.
It was put to [Mr A] that if he entered Iran on an Australian travel document he would be able to produce some documentary evidence that this was the case. In response, he said he did not have time to photocopy the visas, and when the school asked for documents he provided a photocopy and not the original document. This is not consistent with the police report which states he last used the documents when he provided a copy to the school.
It was further put to [Mr A] that the Tribunal may conclude the reported loss of his Australian travel documents was a fabrication as the date of the reported loss of the passports in the police report in January 2017 does not match the date [Mr A] said in his oral evidence that the passports were lost, which is 2014. In response, [Mr A] said he did not fill in any forms, his wife filled in the forms, but he is pretty sure they lost the travels documents when they moved to a new house.
It was further put to him that the time he reported the loss of the Australian travel documents was shortly after the Department of Home Affairs issued a notification of an intention to cancel his visa on 10 January 2017. The police report records he reported the loss of his Australian travel documents on 16 January 2017 because he was asked by his migration agent to provide his travel documents. In response, [Mr A] said he was not aware of this as his wife looks after all these things because of his limited English. The Tribunal did not rely further on the timing of this reported loss, as it also reasonably follows that he would attempt to locate his Australian travel documents on being issued a notice of intention to cancel his visa.
However, the failure to provide evidence of a visa to travel to Iran and entry and exit from Iran on an Australian travel document supports that [Mr A] did not travel on an Australian travel document when he travelled to Iran. The alternative, supported by the report of the loss of Iranian passports to [Police], is that he obtained and travelled on an Iranian passport.
Consistency with past claims
[Mr A] says he was born in [Town 1], Iran. His parents are deceased, and his sister still lives in [Town 1]. His wife’s parents and brother also live in [Town 1]. [Mr A] also says he was born in Iran and Iraq, meaning somewhere on the border, and his wife was born in Iran.
On being asked what led to him coming to Australia, [Mr A] described an incident where said he went to help his friend shopping for wheat and there was a protest. Everyone was running away, and he was arrested with other people. He was taken to a dark room, asked his identity and then beaten up. After it was discovered he had been arrested by mistake he was released at night. His friend found him and took him home.
His friend contacted another friend who was a doctor. The doctor [treated the applicant] to stop the bleeding, and he could not do anything for more than a month. He said his wife looked after him following the operation. He could not remember if [Mr B] was born at this time. He thought he had been married for one or two years. After he recovered, he started working again and did not have other problems because he tried not to go into the town. He said neither he nor any of his family members were involved in protests or handing out leaflets.
It was put to [Mr A] that his evidence at hearing was different to the information contained in his entry interview with the Department and the statement that accompanied his application. While this was put to him under s.359AA of the Act, and s.424AA is the applicable section, these sections are identical in requirements.
It was put to him that in the intake interview and statement accompanying his protection visa application he said:
·     The Basij told him to leave the country.
·     One to two years before he came to Australia he went to the dentist, he was forced to pay a bribe for extra money because he did not have insurance.
·     He was standing there, and two people were fighting. The Basij came and arrested everyone.
·     The Basij caught him and locked him up at the station. He was there for two days.
·     They physically assaulted him and asked him for ID. They tied his hands behind his back and took him to the guard room and kicked him in the stomach.
·     They said ‘you are not in this country, you have to get out.’ After two days they let him go.
·     This is also the information in the statement that accompanied his application for a protection visa.
It was put to [Mr A] this is different to what he said at hearing, in particular:
·     He said he went to go to the city to assist his friend with shopping for wheat.
·     There was a protest (rather than a fight between two people) and everyone was running away. The protest was a rally against the government.
·     He was arrested and beaten.
·     That after it was discovered he was arrested by mistake he was released that night.
[Mr A] said he has always been telling the truth, and that if he had said he was Iranian, he would have got his citizenship seven years ago. He said he came here for peace, and would not have come if it was going to be stressful like Iran. He said if the rules keep changing for him, he can be put back in the refugee camp. If his visa is cancelled, his life will be ruined, his parents will starve, the house will get taken away and the kids will stop school. His Centrelink payments will stop, and he does not know how he will support his family.
[Mr A] did not ask for further time to respond to the information, however given his response and the gravity of the decision, the Tribunal decided to provide further time after the hearing to confer with his representative and provide a further response if he wished to do so. [Mr A] provided a further statutory declaration reiterating that his claims are true.
The Tribunal is mindful not to rely on small inconsistencies in information given a period of nine years has passed between [Mr A] arriving in Australia and providing his initial statement and the hearing. As a result, while it was concerned about further inconsistencies in his response, such as his concern about how he would support his parents when it was earlier stated they are deceased, it does not consider any firm conclusions can be drawn from inconsistencies between his oral evidence and the interview and statement at the time he entered Australia, and places limited weight on these inconsistencies.
However, the Tribunal finds the report to [Police] persuasive evidence that [Mr A] and his family held Iranian passports and are Iranian citizens. This is further supported by his inability to provide any documentary evidence that he travelled to Iran on an Australian travel document in 2013.
For these reasons, the Tribunal finds that there was non-compliance under s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
There is considerable difficulty in assessing these items as [Mr A] maintains he is a citizen of Iran, and therefore did not make submissions on these factors despite being represented. The Tribunal invited [Mr A] to give oral evidence on each of the prescribed factors at the hearing, however he did not provide further information. This adds to the difficulty of the task before the Tribunal, which has had to do the best it can on the country information available and the information from [Mr A] and [the applicant].

A. Prescribed circumstances
The correct information

The Tribunal has found [Mr A] is a citizen of Iran, and this is the correct information. [Mr A] does not agree this is the correct information.
The content of the genuine document (if any)
This is not in issue in this matter.
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
In his application for a protection visa, [Mr A] claimed to be stateless. The decision to grant the visa was based, at least in part, on his statelessness. This is evident in the passage extracted by the delegate of the Independent Merits Review decision. This records [Mr A] feared harm by the Iranian government and related organisations such as the Basij who will subject them to persecution because (among other things) they are members of a particular social group being stateless Faili Kurds in Iran without appropriate documentation, and because they are stateless Faili Kurds with an imputed anti-regime political opinion as asylum seekers in Australia.
The circumstances in which the non-compliance occurred
[Mr A] states that if he had an Iranian passport he would have stayed in Iran, or would have provided his passport and Iranian identity and obtained Australian citizenship seven years ago and not have been through all of this stress. He said he has all his friends from the refugee camp who provided Iranian identity are now Australian citizens.
The present circumstances of the visa holder
[Mr A] said he has [a specified disability] from working since he was young. He receives Centrelink payments. He has had an [assessment] and has been to a physiotherapist three or four times. After the hearing he provided a letter from his general practitioner stating he has been suffering from [Condition 1] and is a carer of his son who has chronic [Condition 2].
[Mr A] said his wife was ill after giving birth to their youngest child and [details deleted]. On being asked what treatment his wife requires, he said she [has specified] injections or tablets. After the hearing he provided a medical history which states that in 2018 she was diagnosed with panic attacks, major depression and [another condition]. Her medical records include medication prescribed for depression and [medication]. Also of note was a diagnosis of [another condition] in 2016 and [another form of that condition] in 2014.
[Mr A] said his son [Mr C] has had four surgeries on his [Condition 2] and [details deleted]. On being asked what care [Mr C] requires, he said that he [has specified symptoms]. He had to look after [Mr C] during the day so he did not [suffer injuries]. In regard to future treatment and care, he said the doctor told them they need to look after him, but he shouldn’t get sick and is not on any medication. On being asked about what happens while [Mr C] is at school with his [condition] problems, [the applicant] said they have notified the school of his condition and that when he needs [assistance].

After the hearing, [Mr A] provided various documents relating to [Mr C’s] health. A letter dated 11 January 2013 from [a specified hospital] states [Mr C] has diagnoses of [several conditions, with planned treatments].
A letter making an appointment for [Mr C] at the [specified clinic] in 2012 was provided. A subsequent letter from [a named doctor] dated 28 May 2012 states there is no need for [his specialist] follow up unless there is any concern in the future.
In March 2012, [Mr C] was referred to a [specialist]. A booking for a [test] in 2014 for [Mr C] and an appointment letter for the [clinic] for [Mr C] on 17 July 2014 was also provided. [Medical] review letters were provided for 2014, 2015, 2016, and 2018, all of which show he continues to be monitored but do not record any treatment or further intervention for his [Condition 2].
On April 2018 [Mr C] was placed on the waiting list for [a procedure], and had this surgery on 2 March 2019. He has one presentation to the emergency department with a viral infection in 2017.
The medical information provided does not support [Mr A’s] statutory declaration that [Mr C] will not survive without professional engagement in treating him. There is no record that [Mr C] currently requires active treatment for his [Condition 2], however this continues to be monitored.

100. [Mr A] said he has bought a house and will lose his house if his visa is cancelled. He provided documents from [a finance agency] regarding a loan for $217,451 and a letter from a conveyancer confirming settlement for the purchase of a home was completed [in] November 2014.
101. The Tribunal finds [Mr A] suffers back pain and [the applicant] suffers from depression and anxiety which requires medication. It was not apparent from the information before the Tribunal that [Mr C] requires care other than monitoring his [specified] function.
102. [Mr A] states he needs to provide care for [Mr C], but was vague about the care [Mr C] requires, describing post-operative care from many years ago, then stating [Mr C] [has specified symptoms]. [The applicant] indicated that while at school, the school is informed about [Mr C’s] condition and [care needs].
103. Department of Foreign Affairs and Trade (DFAT) reports healthcare is a major government priority in Iran and Article 29 of the Constitution stipulates that every Iranian has the right to enjoy the highest attainable level of health. It spent 7.6 per cent of GDP on health in 2018. All Iranian citizens are entitled to basic healthcare coverage provided by the government.[5] Healthcare is available in Iran with the quality of healthcare in the public sector described by DFAT as of a good standard, however overcrowding and doctor shortages are major challenges.[6]
[5] DFAT Country Information Iran 14 April 2020 at [2.22] and [2.23]
[6] DFAT [2.22]
104. Iran has had a national policy on mental health since 1986. It is reported by DFAT that the availability of mental health services has improved but ongoing stigma associated with mental illness discourages people from seeking or persisting with professional treatment.[7]
[7] Ibid at [2.24] and 2.25]
105. The Tribunal finds that [Mr A] and his family would have access to healthcare in Iran, although this may not be the same as services that can be provided in Australia. Given health services are reported to be widely available in Iran, and [Mr A] did not provide any information to show that he would not be able to access these services, this factor does not operate for or against cancelling his visa.
106. [The applicant] currently has a need for treatment of her mental illness, and there was no information to show whether she could access mental health services as she and [Mr A] deny they are citizens of Iran. As the place to which they would return is described as being close to the Iran/Iraq border the Tribunal infers this is regional and that mental health services would be scarce and mental illness stigmatised. This means it would be difficult for [the applicant] to access the treatment she requires. This weighs in favour of not cancelling the visa.
107. [Mr C] has a need for ongoing monitoring of his [Condition 2]. This operates in favour of not cancelling the visa.
108. [Mr A] said if his visa is cancelled, his Centrelink payments will be cancelled and he and his family will have to sleep on the streets as he cannot work. [Mr A] did not provide medical evidence at or after the hearing that he is incapacitated for work. He did provide a letter from a doctor stating he suffers [Condition 1] and was on medication, however this does not state any current treatment or how this has an impact on his ability to work. He worked prior to coming to Australia. He said he cannot work in Iran because he has no identity. It was put to him that he claimed in his application and also gave evidence earlier in the hearing that he had worked in Iran. In response, he said he left illegally and if he returns they will bother him or kill him and Iran will refuse him because he has no identity. The Tribunal does not accept he would be unable to work, however is satisfied that there would be a period of hardship while the family re-establishes itself.
109. This factor weighs marginally 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
110. The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
111. [Mr A] denies providing an incorrect answer in his visa application. The Tribunal has found he has provided incorrect information.   His circumstances have not changed since his arrival such that he would have a new obligation to notify, and his subsequent behaviour does not weigh for or against cancelling his visa.
Any other instances of non-compliance by the visa holder known to the Minister
112. The delegate does not raise any further instances of non-compliance, and this factor does not weigh for or against cancelling his visa.
The time that has elapsed since the non-compliance
113. [Mr A] arrived in Australia and applied for a Subclass 866 visa in 2010. It was granted on 4 October 2011.There has been a lengthy period since the non-compliance. There is also a lengthy period between the reported loss of his Iranian passport in 2013 and a notice of intention to cancel his visa being issued in 2017.
114. [Mr A] has settled in Australia, has purchased a house and had two children since arriving in Australia. His three children are all attending school.
115. This factor weighs somewhat in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
116. There are no other breaches of the law before the Tribunal, and this factor does not weigh for or against cancelling the visa.
Any contribution made by the holder to the community.
117. [Mr A] has not worked since arriving in Australia and said he is currently receiving a carer payment to care for his son. He said his wife receives child payments. The family is dependent on Centrelink payments.
118. There is no other information to show [Mr A] has made any other contribution to the community. He has arrived in Australia and obtained a visa using incorrect information, and the family has since been dependent on welfare payments. He, his wife and children have accessed health and education services. [Mr A] attended [a college] to learn English.
119. This factor does not operate in [Mr A’s] favour, and weighs in favour of cancelling the visa.
B.   Other circumstances
120. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered 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.
Whether there are mandatory legal consequences, such as whether 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
121. [Mr A] submits Iran will not allow him to return as he is not a citizen of Iran. The Tribunal does not accept this is the case and finds that it is open to [Mr A] to return to Iran using Iranian travel documents. If he does not choose to return to Iran, he does not hold a visa to be in Australia and is liable to be detained under s.189 of the Act and removed under s.198 of the Act.
122. DFAT reports that Iran has a global and longstanding policy of not accepting involuntary returns and has refused to issue travel documents to facilitate the involuntary return of its citizen from abroad.[8] However in March 2018, an agreement was reached where Iran will facilitate the return of Iranian citizens who have exhausted all legal and administrative avenues to regularise their immigration status.[9]
[8] DFAT ibid [5.27]
[9] Ibid
123. As the Tribunal is not satisfied that indefinite detention would be an outcome, and that any detention would be temporary, this factor weighs marginally in favour of not cancelling the visa.
Whether there would be consequential cancellations under s.140
124. Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.
125. [Mr A’s] wife was separately granted a protection visa, the cancellation of which is before the Tribunal for the same reason. As his wife holds a visa in her own right, this would not be cancelled by the operation of s.140 of the Act.
126. The delegate states that if [Mr A’s] visa is cancelled, his son [Mr B’s] visa will be cancelled under s.140 of the Act. The Tribunal finds [Mr B] holds a visa as a member of [Mr A’s] family unit, and that his visa would be cancelled under s.140 if [Mr A’s] visa is cancelled.
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
127. The facts of this case give rise to Australia’s international obligations in regard to non-refoulement and the best interests of the child.
(i)Non refoulement

128. The principle of non-refoulement is contained in Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
129. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).
130. Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture. Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed.
131. [Mr A] says if he returned to Iran he will be killed because he is stateless and has no identity. The Tribunal does not accept this is the case, and finds he is an Iranian citizen. The Tribunal does not accept he would be killed if he returns, as he could not specify who would kill him or why they would kill him, and there is no country information that supports this general assertion in the absence of any specific information.
Christian conversion
132. [Mr A] claimed for the first time during the hearing that while he was scared in Iran so had to be Muslim, he had converted to Christianity after he arrived in Australia. He declined to answer whether he identified as Sunni or Shi’a in Iran and said he had no religion.
133. On being asked when he became Christian, he said in the beginning he did not know he needed a certificate to show he was Christian, and it has taken about 1 – 2 years to show he is Christian. On being asked why he would need a certificate to show he is Christian, [Mr A] said that before he came to Australia he had no identity or certificates so he was interested in Christianity so he could get a certificate in a special ceremony. He could not locate the certificate he was referring to during the hearing and was given time after the hearing to provide the certificate he referred to in his oral evidence. In a statutory declaration after the hearing [Mr A] refers to a baptism [in] February 2018, which is presumably the certificate he refers to, but he did not provide any certificates, baptismal or otherwise.
134. He said he attended a church at [location] and could accurately identify the approximate location of a church in Adelaide but could not provide the name of the church. He said his child has been sick, so he had not been in the last month, but had attended this church for two years after his son’s teacher introduced them to the church.
135. After the hearing, [Mr A] and [the applicant] provided statutory declarations in nearly identical terms. He submitted a statement from a pastor in [an interstate] church stating the pastor has known [Mr A] and [the applicant] for one month. It states they have been attending Sunday service every week since January 2020. The pastor states “I would like to confirm they were attending [Church 1] in Adelaide”.
136. This was somewhat surprising, as [Mr A] had not advised at the hearing that he had relocated [interstate], or that he attended church [interstate]. He said he had not attended church in the period prior to the hearing as his son was sick. He did not provide the “certificate” to which he had referred at hearing, or any support from the Church he says he attended for over two years in Adelaide. He instead provided a letter from a church he had attended for one month. The basis on which the pastor at this church could confirm that he attended [Church 1] is not stated.
137. The Tribunal found [Mr A’s] evidence regarding his apparent conversion to Christianity unconvincing. He did not provide support from a church he said he had attended for two years, and from which he said he had a certificate to show he is Christian. He did not refer to baptism, only that he required a certificate to show he is Christian. His apparent conversion and attendance at the church commenced approximately two years ago, which equates with the period when notice of intention to cancel his visa was issued.
138. The Tribunal finds [Mr A’s] claim to have converted to Christianity a fabrication to bolster his claims to remain in Australia.
Re-entry to Iran
139. [Mr A] said they left Iran illegally on false passports, exiting through Khomeini Airport in Tehran. He said that the person who obtained false passports for them took them to the airport and got them through. He said they arrived with the person and took their luggage through screening, then went through security and to the ticket counter. After the ticket counter the person gave them passports and their passports were stamped. He said the passports were not examined other than when they were stamped. He claims he will be treated unfavourably or imprisoned on his return.
140. The Tribunal has found [Mr A] is a citizen of Iran. It does not accept he left Iran illegally. DFAT report that Iran will facilitate the return of its citizens and pays little attention to failed asylum seekers on their return to Iran. DFAT report that unless they were the subject of adverse attention prior to departing Iran, for example political activism, returnees are unlikely to attract attention from authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination.[10] [Mr A] gave oral evidence that neither he nor his family were involved in political activities and the Tribunal does not consider he would be at risk of adverse official attention.
[10] DFAT ibid [5.27] – [5.31]
141. [Mr A’s sister] lives in [Town 1]. His wife’s brother and parents also live in [Town 1]. On travelling to Iran in 2013, [Mr A] and his family stayed with his parents-in-law and his sister.
142. On being asked if he returned to Iran if he could live with his parents-in-law, he said they are poor people and under sanctions are unable to support him and his family. He said even on his current Centrelink payments he can hardy maintain his needs.
143. The Tribunal finds that if they returned to Iran, the family would not be without shelter as they could stay, at least temporarily with relatives.
144. On being asked if he could resume work in Iran, he said he has no identity and will be bothered or killed if he returns, and Iran would refuse to have him because he has no identity. In light of his earlier evidence at the hearing that he had worked on farms and in [an occupation] while in Iran and in the absence of medical evidence on this ability to work, with the only medial evidence being a diagnosis of [Condition 1], the Tribunal does not accept he would be unable to work.
Ethnicity
145. [Mr A] claims to be a Faili Kurd. DFAT reports that Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. The report goes on to state that DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category (refugee, non-registered refugee or Iranian citizen) to which they belong.[11]
[11] DFAT ibid at [3.26]
146. This is not the case for Kurds who are involved in separatist activities, with DFAT reporting that the authorities are highly sensitive to organised political activity by Kurds.[12] Kurdish political prisoners represent half the political prisoners in Iran, and constitute a disproportionately high number of those who received the death penalty.[13]
[12] DFAT at [3.20]
[13] DFAT ibid at [3.20]
147. [Mr A] gave oral evidence that neither he nor his family have been involved in political activities such as attending protests or handing out leaflets. As he is not involved in any political activity it follows that he does not meet the profile of a person who would be of interest to the authorities and is not at risk on returning to Iran. He has previously returned in 2013 without any reported harassment by the Basij or other authorities in Iran.
(ii)Best interests of the Child

148. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

149. This has been the subject of differing interpretations. Most recently in CFE16 v Minister and CFD16 v Minister,[14] (CFE16 & CFD16) in a factual matrix that is very similar to this case, Judge Reithmuller referred to Art. 3 of the Convention and stated:
[14] [2020] FCCA 1083
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[15]
[15] At [19]

150. Judge Reithmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant it intended to approach the case any differently. In the facts of that case, the parents claimed to be stateless Faili Kurds from Iran and were found to be Iranian citizens. One of their children was an Australian citizen. This is very similar to the facts of this case.
151. Judge Reithmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[16] Judge Reithmuller states that:
[16] At [24]
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[17]
[17] At [25]

152. Judge Reithmuller notes in this case that as one of the children is an Australian citizen she is entitled to all of the protections and the benefits of the Australian state. The cancellation of the parent’s visas, given her young age, may on a practical level mean she is unable to take advantage of her status as an Australian citizen. Judge Reithmuller notes this is a factor that may need to be considered by the Tribunal.[18]
[18] At [28]
153. In Thakur & Ors v Minister[19] Judge Kendall, referring to the Full Court of the Federal Court in Kaur v Minister,[20]rejected the notion that the Tribunal is required to apply the Convention.   Both Thakur and Kaur address the requirements of public interest criterion 4020 (PIC 4020), which is not in issue in this case. The issue in the PIC 4020 case is whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa. In contrast, the question before the Tribunal in this case, is whether the visa should be cancelled, having had regard to the response provided by the visa holder and the matters prescribed in r.2.41 of the Regulations. Neither require a consideration of the best interests of the child pursuant to a Ministerial instruction.
[19] [2020] FCCA 1038
[20] [2017] FCAFC 184
154. In this case, the delegate refers to the Convention in the decision, and the Tribunal invited [Mr A] to provide oral evidence on the effect on his children if his visa is cancelled. In the facts of this case, which are very similar to the facts in CFE16 & CFD16, it is bound by this decision to treat the primary consideration as the best interests of the child. It is also necessary to consider whether the cancellation of [Mr A’s] visa may mean that the children that are Australian citizens will, on a practical level, be unable to take advantage of their status as Australian citizens.
155. [Mr A] has three children, [Mr B], born [date], [Mr C] born [date] and [Ms D] born [date]. [Mr C] and [Ms D] are Australian citizens. Submissions relating to [Mr B], [Mr C] and [Ms D] relate to income to support their needs, their education and to [Mr C’s] health.
156. At hearing, [Mr A] said since his visa was cancelled his Centrelink payments have stopped. He said if his visa remains cancelled his children will suffer from hunger. While the Tribunal has evidence before it that [Mr A] suffers [Condition 1] it does not have medical evidence to show he is unable to work, or the effect of the [Condition 1] on his ability to work. The medical report states he is a carer for his son with chronic [Condition 2], however the information before the Tribunal about the care [Mr C] requires does not reveal that [Mr C] requires constant care. He attends school and does not require additional support at school. In these circumstances, the Tribunal finds [Mr A] can seek work. He worked prior to arriving in Australia. It does not appear that he has worked since, and the Tribunal accepts it will take time for him to seek and find work. This will cause hardship to the family and have an effect on the support of the children in this period.
157. The family were able to stay with [Mr A’s] parents-in-law and sister while they were in Iran and the Tribunal considers they would be able to do so again.
158. No information has been provided on how the family has supported itself since the time the visas have been cancelled. They provided documents to show they purchased a home for $225,000, and obtained a loan from [a finance agency] of $217,451. The deposit paid was $10,000 and they appear to have some equity in the property. [Mr A] did not proffer any other information in support of his assertion that his children would go hungry or his inability to work.
159. The Tribunal considers that the cancellation of the visa would result in, at the least, some short to medium term hardship to the children while the family re-establishes itself.
160. In regard to the education of the children, DFAT reports that Article 30 of the Iranian Constitution commits the government to providing all citizens free education up to the secondary level and to expanding free higher education to the extent for Iran to attain self-sufficiency.[21] DFAT reports that Iran has a highly-educated population, and Iran has almost universal primary school enrolment and nearly 90 per cent of the secondary school-aged population is enrolled in secondary school, and nearly 70 per cent of the tertiary school-age population is enrolled in tertiary education, although entry to top universities can be more difficult for religious minorities or those with family backgrounds considered suspicious.[22]
[21] DFAT ibid at [2.36]
[22] DFAT ibid at [2.38]
161. Farsi is the sole medium of instruction in primary and secondary education.[23] [The applicant] states the children do not speak Kurdish, however also later acknowledged that she and [Mr A] speak to them in Kurdish. In his statutory declaration sworn after the hearing, [Mr A] states his children do not speak Farsi, they speak Kurdish at home and English outside.
[23] DFAT ibid [2.36]
162. The Tribunal finds that returning to Iran will result in [Mr B], [Mr C] and [Ms D] suffering hardship in attending school as they will be required to learn Farsi and integrate into the local community.
163. [Mr C] and [Ms D] are Australian citizens. Their citizenship was acquired as they were born in Australia, and at the time they were born their parents were Australian permanent residents.[24]
[24] S.12 Australian Citizenship Act 2007
164. The preamble to the Australian Citizenship Act 2007 states parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth. The Australian Constitution is silent on citizenship and does not provide express protections for Australian citizens. The right to apply for a passport is contained in the Australian Passports Act 2005 (subject to some exceptions).   The Act addresses non-citizens, and as such Australian citizens can enter and leave Australia as many times as they like. While not codified in law, Australian citizens can seek help from an Australian consulate while overseas. Australian citizens have political rights; the right to vote (Commonwealth Electoral Act 1928) so long as the person does not intend to live overseas for more than 6 years, and stand for office if over 18 and not a dual national (Australian Constitution s.44(i)).
165. On a more practical level, the entitlements of Australian citizens relevant to [Ms D] and [Mr C] are eligibility for Centrelink benefits and Medicare while in Australia, and to access free primary and secondary schooling and certain schemes to fund tertiary education.
166. The visa of [Mr B], [Ms D] and [Mr C’s] mother has also been cancelled, and the facts surrounding the cancellation are the same as the facts that give rise to the cancellation of [Mr A’s] visa. They rely on the same circumstances and are interdependent. Both matters are before me. Due to the ages of [Ms D] and [Mr C], if both parents’ visas are cancelled, they will have to leave Australia with their parents. This will mean that on a practical level they will be unable to take advantage of their status as Australian citizens.
167. If [Ms D] and [Mr C] return to Iran with their parents, they will receive free primary and secondary education.
168. [Mr C] has particular health needs in terms of monitoring his [Condition 2]. As the family will face economic hardship in re-establishing itself in Iran, the Tribunal accepts that private sector healthcare services will not be attainable by [Mr C].
169. The Tribunal considers it is in the best interests of [Mr B], [Mr C] and [Ms D] to remain in Australia. This weighs heavily in favour of not cancelling [Mr A’s] visa. In addition, [Ms D] and [Mr C] are Australian citizens and cancellation of [Mr A’s] visa will, as described by Judge Reithmuller, deprive them of taking advantage of their status as Australian citizens. This also weighs heavily in favour of not cancelling the visa.
CONCLUSION
170. This matter is finely balanced. [Mr A’s] eligibility for the visa was significantly affected by the incorrect information he provided. He has not made a contribution to the community from arrival. However, he has three children, two of whom are Australian citizens, and one of whom has a medical condition, which weighs heavily in favour of not cancelling the visa.
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. Having had 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.
Kate Millar
Senior 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.

102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and

(b) no incorrect answers are given.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.

105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)     an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.

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.