1802556 (Refugee)

1802556 (Refugee) [2020] AATA 4550 (16 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1802556
COUNTRY OF REFERENCE:                   Iran
MEMBER:James Silva
DATE:16 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 16 September 2020 at 09:456 am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – citizenship status – claimed statelessness – Iranian citizen – consideration of discretion – grant of visa based on incorrect information – ongoing credibility concerns – contributions to Australian community – carer for disabled person – time elapsed since the non-compliance – best interest of child – effect of consequential cancellations – non-refoulement obligations – Faili Kurd ethnicity – failed asylum seeker – religion – claimed conversion to Christianity – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 105, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The review applicant[1] is a man in his early [age range], who claims to have been born in Iraq and an Iranian national, although he initially claimed to have been a stateless person. He arrived in Australia [in] November 2009, by boat and without permission or documentation.
[1] The Tribunal uses the term ‘applicant’ as shorthand for the applicant for review, or former visa holder.
The applicant applied for a protection visa on 7 June 2010 and was granted the visa on 9 June 2010.
On 5 January 2018, a delegate of the Minister for Immigration decided to cancel the applicant’s Protection visa under section 109(1) of the Migration Act 1958 (the Act). The delegate found that grounds for cancelling the visa existed because the applicant provided incorrect information in his visa application form, in breach of s.101(b). Having regard to the applicant’s response to the Notification of Intention to Consider Cancellation (NOICC) and prescribed matters, the delegate decided to cancel the visa.
This is an application for review of that decision. As the applicant concedes that the ground for cancellation is made out, the issue is whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 February 2019 and 16 May 2019.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CLAIMS AND EVIDENCE
Background
The applicant arrived in Australia [in] November 2009, travelling by boat without permission or documentation.
The applicant made a request for Refugee Status Assessment (RSA) on 23 December 2009, and a delegate of the Minister found that he was not a person in respect of whom Australia has protection obligations. The applicant was referred to an Independent Merits Reviewer (IMR) who, on 15 April 2010, concluded that he had a well-founded fear of Convention-related persecution. On 7 June 2010, the applicant lodged a protection visa application, and he was granted a protection visa on 9 June 2010.
The applicant’s wife and daughter lodged an application for Global Special Humanitarian visas, which included documentation showing that they were both Iranian citizens. This application was refused on 6 January 2014. Meanwhile, the applicant sponsored his wife for a partner visa, with their daughter included as a secondary applicant. These visas were granted on 10 May 2013. The applicant’s wife and daughter arrived in Australia [in] June 2013. The Department undertook further checks, which confirmed that both the wife and daughter are Iranian citizens.
On 22 March 2017, the Minister’s delegate sent a Notice of Intention to Consider Cancellation under Section 109 of the Migration Act (NOICC), addressed to the applicant and sent to him by registered post.
On 21 May 2017, the applicant’s representative, [Mr A] of [Law Firm 1], sent the applicant’s response to the NOICC. In his response, the applicant admitted that he provided incorrect information, namely that he falsely claimed to be a stateless person when he is an Iranian citizen. His response includes detailed comments on why the visa should not be cancelled.
On 5 January 2018, the Minister’s delegate made a decision to cancel the visa under s.109, on the basis that he had provided incorrect information and therefore not complied with s.101(b) of the Act; and that the seriousness of the non-compliance outweighed the circumstances in favour of non-cancellation. The decision noted that, as a consequence of the cancellation, the partner visas of his wife and daughter could be cancelled. The Department file includes a copy of a decision on 5 January 2018 to cancel the partner visas of the applicant’s wife and daughter, and notifications to them. The decision relating to the applicant’s wife and daughter is not the subject of this review.
The applicant sought review of the delegate’s decision on 1 February 2018.
The issue in this review is whether the Tribunal should exercise the discretion to cancel the visa (in light of the fact that the applicant accepts there was non-compliance in the way described in the s.107 notice).
Evidence
The Tribunal has the following relevant materials before it:
§ A Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 (‘NOICC’), dated 22 March 2017, sent by registered post to the applicant at his residential address in [Address 1].
§ A Record of Decision of Whether to Cancel under Section 109 of the Migration Act 1958 (‘Decision Record’), dated 5 January 2018; and a Notification of Cancellation under section 109 […] (‘Notification’), also dated 5 January 2018, sent by registered mail to the applicant to a residential address in [Address 1]. The Department file also includes a copy of the decision record relating to the consequential cancellation of the Partner visas (BC-100) visas for the applicant’s wife and daughter, under s.140(2) of the Act, and a notification to them of the decision to cancel their visas.
§ A copy of the applicant’s protection visa application submitted on 5 June 2010.
§ Submissions to the Tribunal sent on 11 February 2019, 15 May 2019, 5 July 2019 and 29 May 2019.
§ Identity documents presented at hearing
-   Copies of the applicant’s Iranian shenasmeh (birth certificate) and national ID card, with translations.
-   Copy of applicant’s Australian travel document, showing his Australian resident return visa, a stamp showing his return arrival in Australia [in] June 2012, and an Iranian visa valid for the period May to August 2012.
-   Copy of the applicant’s NSW driver licence.
-   Copies of wife’s and daughter’s Iranian passports, and his wife’s ID card.
-   Birth certificate for the applicant’s son, born in [Australia] on [date].
The Tribunal also has before it Department file [number] relating to the applicant’s protection visa application and the eventual grant of that visa.
The applicant appeared before the Tribunal on 14 February 2019 and 16 May 2019, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. At the first hearing session, his wife and daughter accompanied him as witnesses. At the second hearing session, the Tribunal took oral evidence from the applicant’s wife, and from [Mr B], Principal of [High School 1]. The applicant is represented in this matter by his registered migration agent, [Mr A].
The applicant submitted several documents relating to his and his family’s circumstances: (a) screenshots of bank statements showing payments from an employer (April-May 2020), and (b) school reports for his daughter, 2018/2019.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
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.
Did the notice comply with the requirements in s.107?
The Tribunal has examined the relevant materials and discussed the content of the NOICC at the hearing. The Tribunal has found no issue as to the validity of the notice, and neither the applicant nor his representative has suggested any.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107, and the NOICC complied with the statutory requirements.
The non-compliance as described in the s.107 notice
The applicant concedes that there was non-compliance in the way described in the s.107 notice, being the manner (validly) particularised in the notice. This was a breach of s.101(b): ‘A non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are to be given’.
The s.107 notice identified instances where the applicant provided incorrect information in his protection visa application. This is relevant to this review insofar as it indicates the extent to which the decision to grant the applicant a protection visa was based on the incorrect information; and it potentially also goes to the question of whether Australia has non-refoulement obligations in respect of him. The s.107 particularised the following:
§ On Form 866B, the applicant indicated that his daughter is stateless (question 9).
§ On Form 866C, he indicated that his current status is ‘stateless’ (question 20); that he holds no other citizenship (question 21); and that he has no other rights to enter and residence in any country, other than his country of nationality or country(s) of former habitual residence (question 22). He indicated that he was seeking protection from Iran or Iraq (question 41).
§ In response to question 42 of the application form, the applicant referred to the statement of claims submitted to support the RSA and IMR assessments. This statement includes the following information (relating to Iran):
-   The Iranian authorities and the basij militia constantly harass and persecute him and his family (particularly his daughter) due to their statelessness.
-   As persons who do not have Iranian citizenship, they do not have the same civil rights and access to services as other Iranians. For instance, the applicant had to pay a bribe for his daughter to attend school, and she faced discrimination as a Faili Kurd.
-   He cannot receive protection in Iran (or Iraq) because he is stateless.
-   If he returned to Iran, the authorities would kill him because he left on a false passport and would therefore be considered a protestor and a trouble-maker.
The NOICC set out the evidence of the applicant’s Iranian nationality: (a) his daughter’s Iranian passport, from which it can be inferred that her father (the applicant) must be an Iranian citizen; and (b) his wife’s birth certificate, which refers to the applicant’s national ID card number. It also noted that he travelled to Iran [from] May 2012 [to] June 2012.
As the s.107 notice concludes, the applicant’s alleged ‘stateless status’ was given considerable weight in the IMR decision’, and the subsequent grant to him of protection.
As noted above, the applicant acknowledged in his response to the NOICC that he is an Iranian citizen. The Tribunal concludes that the applicant gave incorrect information at questions 20, 22, 41 and 42 of his protection visa application form; and that he also gave incorrect information in the statement that he relied on for his protection visa application, as well as his RSA and IMR assessments. This is the incorrect information particularised in the s.107 notice.
The Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As 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 s.109(2) does not prescribe circumstances in which cancellation is mandatory.
Credibility of the applicant’s claims and evidence
In considering whether the visa should be cancelled, the Tribunal is required to assess the applicant’s response to the NOICC and the material he has submitted relating to the prescribed circumstances. In doing so, it has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearings and in evaluating the applicant’s evidence as a whole.
In the submission of 11 February 2019, the representative noted that the applicant ‘had already admitted that he has provided incorrect information to the Department […] and has since been honest and cooperative […].’ He contends that it would be ‘hugely unjust and rather a denial of procedural fairness’ not to give this due weight.’.
However, the Tribunal has concerns that the applicant’s subsequent claims and evidence were broad, often unsubstantiated, and in some cases misleading. For instance, as noted below, the Tribunal does not accept his claim to have converted to Christianity and to fear persecution in Iran for that reason. Also, while he claimed to have made contributions to the community by providing full-time care to a disabled person, and later by working as a [Occupation 1], he provided minimal evidence relating to his (earlier) Centrelink benefits and ongoing income; and, despite previously emphasising the disabled person’s reliance on him, he subsequently changed his work arrangements in response to the Tribunal’s concerns about the nature of the care that he provided. Overall, the Tribunal has some ongoing credibility concerns.
The applicant’s response
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance.
The applicant conceded that he had provided incorrect information that he was stateless, rather than an Iranian citizen. In relation to whether the visa should be cancelled, the submission provides information addressing a number of the prescribed circumstances, as well as other considerations. In particular, the applicant contended that Australia nonetheless has protection obligations in respect of him due to his Faili Kurd ethnicity, and points to his personal and family circumstances in Australia. The Tribunal addresses these in details below, together with the written and oral evidence provided during this review.
Consideration of prescribed circumstances
The Tribunal must 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, and addressed individually below.
The correct information
The Tribunal finds, in light of the foregoing information and the applicant’s oral and documentary evidence that the correct information is that the applicant is an Iranian national; and that he held an Iranian passport, national ID card and birth certificate (hence, he is not undocumented). It also finds that his claims that he and his family suffered harm, and were unable to obtain protection for that reason, to be incorrect.
In the submission to the Department, the applicant’s representative summarised his circumstances as follows:
The applicant was born in Iraq, and he is ethnically Kurdish. His family is also Kurdish. His grandfather was originally a Kurd from Ilam, but he moved to Iraq. The applicant was born in Baghdad, but he and his family were expelled when he was four years old. He speaks both Arabic and Persian. He does not have any Iraqi documentation; however, he does have Iranian documents, and is a citizen of Iran.
The Tribunal accepts as plausible that the applicant is Faili Kurdish.
The Tribunal places no weight on this consideration in favour of the applicant.
The content of the genuine document (if any)
This prescribed circumstance is not relevant because the NOICC relied solely on section 101, and not section 103 (which relates to bogus documents).
Whether the decision to grant a visa or immigration clear the visa was based, wholly or partly, on incorrect information
The decision to grant the applicant a protection visa was based on the Department having accepted that he is a stateless, undocumented Faili Kurd who had been subject to mistreatment for reason of his statelessness and lack of documentation; and that he has a well-founded fear of persecution for those reasons. The NOICC states that the applicant’s ‘alleged ‘stateless status’ was given considerable weight in the IMR decision’.
The response to the NOICC and the submission to the Tribunal contend that the visa grant was based only partly on the applicant’s (now-rejected) statelessness. They claim that his ethnicity, as a person of ‘Faili Kurdish descent’ also played a role, as members of this ethnicity face ‘systematic discrimination’.
The Tribunal finds that the decision to grant the visa was based primarily on the applicant’s claimed statelessness, which was incorrect. It places no weight on this consideration in favour of the applicant.
The circumstances in which the non-compliance occurred
The applicant maintains that he faced ‘exceptional’ challenges on his arrival in Australia. For instance, he had endured an ‘incredibly traumatic journey’, having fled Iran following ‘persecution, discrimination and harassment’ from the Iranian authorities and the community at large; that he had left his wife and daughter in Iran, and that, as an asylum seeker, he was ‘incredibly vulnerable’. He was keen to start a new life.
The applicant also claims that he was naïve, and simply followed the advice of those who recommended that, as a Faili Kurd, he should hide his identity and claim to be stateless, in order to enhance his prospects of being given permanent residency in Australia.
The Tribunal accepts that the applicant’s travel to Australia by boat involved some difficulty and uncertainty, and that he relied on third parties for advice. However, it is not satisfied that these adequately explain his judgement and conduct in relying on incorrect information. Nor does it accept at face value that the applicant escaped persecution, discrimination and harassment in Iran at the hands of the authorities and the community at large, due to his Faili Kurd ethnicity (as he has now confirmed that he is not stateless). As discussed at hearing, the Tribunal has no persuasive reports to support the applicant’s claim that Faili Kurds who are Iranian citizens face persecution, discrimination or harassment of the kind suggested by the applicant. Overall, the Tribunal does not accept that the applicant’s circumstances in Iran, his travel to Australia and/or his reliance on third parties justify his attempt to obtain permanent residency in Australia on the basis of false information.
At hearing, the applicant acknowledged the Tribunal’s observation that each Department interview and each signed document contained a reminder of the need for correct information to be provided, and the consequences of the provision of incorrect information.

The applicant’s representative contended that the applicant has made full disclosures about his Iranian citizenship and documentation, and that it would be unfair not to give him credit for his candour. The Tribunal acknowledges the applicant’s direct admission, but this did not occur until May 2017, when he was responding to adverse information that the Department put to him. The Tribunal also has some ongoing credibility concerns (eg. in relation to his activities in Australia and his prospective fears if he were to return to Iran). In its view, these reduce any credit he may otherwise have as a result of having admitted giving incorrect information in his protection visa application. The Tribunal places minimal weight on this consideration in favour of the applicant.
The present circumstances of the applicant
The applicant currently lives in [city of residence], together with his wife and [age] year old daughter, and a [age] year old son born in Australia. The submissions on his behalf give the following information:
§ The applicant claims to have provided full-time care for a friend whom he met in detention. This person suffered a stroke and is now ‘seriously impaired’. More recently, he claims to have been employed as a [Occupation 1] for more than a year.
§ His wife is studying English at TAFE and caring for the couple’s son. She intends to find work when she finishes, ‘so she can further contribute to Australian society’. The most recent advice indicates that she has continued English classes, but the COVID-19 pandemic interrupted her studies.
§ The applicant claims that his daughter speaks very good English, is well-integrated into the community. Recent submissions indicate that she is enrolled at [University 1] studying a [course]. They refer, without further details or substantiation, to her visa status having interfered with her examinations.
There was extensive discussion of these circumstances at hearing, particularly in the context of the applicant’s (claimed) contribution to Australian society.
Despite some concerns about the applicant’s candour and willingness to substantiate these claims, the Tribunal places moderate weight on the applicant’s and his family’s current circumstances, as considerations in his favour.
The subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant admits that he provided incorrect information but contends that he has been honest and forthcoming in all his other dealings with the Department. The Tribunal notes that the applicant provided the incorrect information on 7 June 2010, when he lodged his protection visa application. He continued to rely on this information until 23 May 2017, when he responded to specific adverse information in the NOICC. This involves a failure to comply with s.105, over a prolonged period. The Tribunal places a little weight on this consideration in the applicant’s favour.
Any other instances of non-compliance known to the Minister
There is no information before the Tribunal to indicate other instances of non-compliance known to the Minister. The Tribunal places a little weight on this consideration in the applicant’s favour.
The time that has elapsed since the non-compliance
The non-compliance occurred in June 2010, when the applicant lodged his application for a protection visa. This is over ten years ago. The Tribunal places moderate weight on this consideration in the applicant’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information to suggest that there have been breaches of the law since the non-compliance occurred. The Tribunal places a little weight on this consideration.
Any contribution made by the holder to the community
In his submissions, the applicant claimed to have made contributions to the community in the following ways:
§ He was a full-time carer of a friend whom he met in a detention centre, until early 2019.
§ More recently, the applicant claims to have worked full-time as a [Occupation 1] since April 2019.
§ The applicant is a ‘massive support’ to his family and children, in particular the older daughter who is close to finishing her high school studies.
Carer for disabled person:The applicant told the Tribunal at hearing that he receives Centrelink benefits as the full-time carer for [Mr C], a person he came to know in immigration detention. [Mr C] has a wide range of health problems.
§ The applicant gave the Tribunal this person’s telephone number, after retrieving it from his mobile telephone. He did not know his residential address, stating only that he drives there by car, He also did not know the date of birth or other personal details.
§ The applicant said that he usually spends five to six hours a day with [Mr C], helping him with breakfast and other meals, household chores, doctors’ appointments and shopping. There are no fixed hours, but they call each other to check what [Mr C]’s needs are. He later said that they do not telephone, but make verbal arrangements during visits.
§ The applicant said that he typically takes [Mr C] to [the] Hospital, where he visits various specialists. He initially did not know if this person has a GP, but then went on to say he is somewhere in [Suburb 1]. He was not sure if [Mr C] had advised any doctors or specialists that he (the applicant) was a full-time carer, or a person to contact in the case of an emergency; he noted that [Mr C] also has a girlfriend, whom he has met.
The Tribunal found much of the applicant’s evidence about the support he provides to [Mr C] to be vague and uncertain. It signalled its doubts about both the amount and nature of the care services that the applicant was providing.
Other contributions: The Tribunal enquired whether, apart from his care for [Mr C], the applicant contributed to the community through any other activities. The applicant said that he did not. Asked about his daily activities, the applicant said that he does chores at home, runs errands and goes to the gym. The applicant acknowledged that he has limited hours working for [Mr C]. Although he is fit and able to work, he said that he had not considered engaging in any paid work.
Paid work as [Occupation 1]: At the resumed hearing, the applicant said that he no longer cares for [Mr C]. He went on to suggest that the Tribunal did not appear to have considered these carer duties as a ‘contribution to society’ (compared, say, to paid work). The Tribunal clarified that its concern did not lie with the intrinsic value of the work, but rather the veracity of the applicant’s claimed activities. The applicant said that he had recently obtained work as a [Occupation 1], but had not yet been paid.
More recently, the applicant claims to have worked full-time as a [Occupation 1] from April 2019. He provided screenshots from [Bank 1] mobile application, showing cash payments from ‘[Mr D] – [Occupation 1]’ of [amount] (4 days earlier), [amount] (21 days earlier) and [amount] (46 days earlier). The applicant forwarded only partial screenshots, as one ‘transfer to [Bank 1]’ appears to be obscured, and there is a gap in the time period.
Family support: The applicant claimed that he has given his family ‘massive support’, in his role as a husband and parent. However, details are lacking. While the Tribunal accepts that cohesive families are of some indirect benefit to the community, the applicant has not provided details or argumentation as to why this should be a consideration in his favour.
The Tribunal considers that the applicant has done himself few favours in addressing these issues, with vague, largely unsubstantiated claims. For instance, he has provided no pay slips, income tax returns or correspondence with Centrelink to show a change in his circumstances. Nonetheless, it accepts on the available evidence that the applicant undertakes some paid work as a [Occupation 1], and that he has in the past provided some support to a disabled person.
The Tribunal places modest weight on this consideration in the applicant’s favour.
Other circumstances
While the Tribunal must consider the above prescribed circumstances, 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
Whether the visa would have been granted if the correct information had been given
The Tribunal finds that the applicant was granted a protection visa primarily on the basis of the incorrect information that he provided, namely that he was stateless and undocumented (as a Faili Kurd), and therefore in need of protection.
The applicant has contended, to the Department and the Tribunal that, even as an Iranian national, he experienced persecution, discrimination and harassment from the Iranian authorities and the community at large, on account of his ethnicity as a Faili Kurd. Country information[2] discussed with the applicant at hearing, from around the time he sought protection, indicates that Faili Kurds comprise a small proportion of Iran’s Kurdish population. The Department of Foreign Affairs was not aware of Faili Kurds who are Iranian citizens facing adverse attention specifically because of their ethnicity, or of them failing to seek the protection of the Iranian authorities where needed. DFAT went on to state that Faili Kurds who are Iranian citizens can access services on the same basis as other Iranian citizens. While DFAT’s contacts did not know of instances of societal discrimination (such as extortion, harassment, detention or physical assault), they could not rule out the possibility that this occurs from time to time. The Tribunal accepts this assessment as reliable, and consistent with assessments from other sources.
[2] The primary source for this information was DFAT: Thematic Report Iran – Faili Kurds in Iraq and Iran, 3 December 2014
The Tribunal finds on the available material that the visa would not have been granted if the correct information had been given. It places no weight on this factor in favour of the applicant.
Whether there are mandatory legal consequences of the cancellation
The Tribunal considers that as a consequence of the visa cancellation, the applicant will become an unlawful non-citizen. Under s.46(1) of the Act, he will not be permitted to make a valid application for a further visa. Also, under s.46A(1), he will not be permitted to make a valid application for any visa, including a bridging visa. He may therefore be detained, potentially on an indefinite basis. However, as a citizen of Iran, he will be able to return to that country.
The Tribunal notes, however, that there are practical considerations that make the applicant’s indefinite detention an unlikely outcome. These arise, in particular, from the presence in Australia of the applicant’s son, who holds Australian citizenship, and his wife and daughter, who would not be prevented from applying for protection visas. The Tribunal places a little weight on this consideration in favour of the applicant.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
Australia’s obligations under the Convention on the Rights of the Child:
The applicant has a [age] year old son born in Australia. The applicant contends that the best interest of the child is in the visa not being cancelled. The submission of 29 May 2020 highlights that the son was born in Australia, that he is an Australian citizen, that he [is at school] and is familiar with the Australian way of life and culture, and that it is in his best interest to remain with the family who have been living in Australia for a significant amount of time. This last point appears to be a reference to Article 9 of the Convention on the Rights of the Child which states in part: ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will [… with certain exemptions relating to child welfare]’.
The Tribunal accepts that it is in the son’s best interest for the visa not to be cancelled, due in part to his Australian citizenship, his ties with Australia (even though, at the age of five, these are mainly forged through his parents and schooling), the benefits to him of a continued stable family life here, his continued access to Australian education and the opportunities that arise from Australian education and socio-economic conditions.
In the submission of 29 May 2020, the applicant’s representative commented on the detriments that the son may experience if he were to return to Iran. These include the problems that he will face because he does not speak Farsi; that the family may face discrimination as Faili Kurds; and that the son will suffer if the Iranian authorities target the family, eg. as failed asylum seekers. The Tribunal finds these additional points to be of little value. First, the Tribunal’s focus is on what decision in respect of the cancellation would be in the son’s best interest, rather than how his interests would be affected by a decision to cancel the visa (although the adverse impacts may help, in treating the child’s best interest as a primary consideration, in determining what weight to place upon it). Second, the Tribunal does not accept at face value that the son has no Farsi language skills. Third, the Tribunal does not accept that the son’s separation from other family members is a necessary or even likely consequence of the visa cancellation. For instance, all the family members are Iranian citizens and would therefore be free to return to Iran (subject to any protection obligations that Australia may have in respect of them). Furthermore, the visa cancellation would not necessarily result in the applicant’s removal to Iran (and hence, the son’s separation from him), as the applicant would need to hold or agree to apply for an Iranian travel document to make the return trip. Also, any decision on the part of the applicant’s wife and/or daughter to apply for protection would also likely impact the prospects of him being returned to Iran (and hence, separated from the son).
In sum, the Tribunal finds that a primary consideration is the best interests of the son for the visa not to be cancelled; it places significant weight on this consideration in favour of the applicant.
The applicant also has a daughter who is now [age] years of age. Article 1 of the Convention on the Rights of the Child states: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless the law applicable to the child, majority is attained earlier.’ Australia therefore does not have obligations under that convention in relation to the daughter. Her circumstances are, however, relevant to other aspects of this assessment.
Whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act.
The applicant sponsored his wife and daughter on partner visas, which were cancelled under s.140(2) of the Act on 5 January 2018. They arrived in Australia more than seven years ago. The applicant’s wife has given some evidence of her adaptation to life in Australia, such as learning English and preparing for future employment. More significantly, the applicant’s daughter has spent many of her formative years in Australia, from the ages of [age] to [age]. The Tribunal accepts, based on its observation of her at the first hearing session and taking into account other supporting evidence, that she has integrated into Australian life, including culture and lifestyle. (The Tribunal makes this finding, notwithstanding that the limited documents that the applicant provided relating to his daughter suggest that he exaggerated and perhaps misrepresented her participation in school life and academic performance.) The Tribunal considers that a decision to affirm the visa cancellation would have a detrimental effect on the daughter in particular, as well as family cohesion (irrespective of whether the applicant’s wife and daughter were to lodge protection visa applications).
The Tribunal places moderate weight on this consideration in favour of the applicant.
Non-refoulement obligations
Whether the cancellation would lead to the person’s removal in breach of Australian’s non-refoulement obligations under relevant international agreements
In the decision under review, the delegate took the view that a ‘decision to cancel a visa is not in itself a decision to remove a person from Australia, and therefore it is not, in and of itself, a breach of non-refoulement obligations. She noted that, if the visa were cancelled, the Department would undertake an International Treaties Obligation Assessment (ITOA) prior to the applicant’s actual removal from Australia. There was no further consideration of this matter.
The Tribunal agrees that the visa cancellation does not automatically lead to the applicant’s removal. Furthermore, as the applicant does not hold an Iranian passport, his return travel would require the issuance to him of a travel document. DFAT advised in its latest country report[3] that ‘Iran has a global and longstanding policy of not accepting involuntary returns’, and went on to describe a recent exception to that policy that is not relevant to this case. Although there may be some practical obstacles to the applicant’s return, the Tribunal considers it appropriate to consider in the exercise of its discretion whether the applicant’s removal would enliven Australia’s non-refoulement obligations (even though the Department would likely still need to conduct an ITOA at the time of any removal).
[3] DFAT, Country Information Report – Iran, 14 April 2020,
The applicant contends that Australia has protection obligations in respect of him, on the basis of the following: (a) his Faili Kurdish ethnicity; and (b) his status in Iran as a failed asylum seeker. Although the applicant declined to articulate any claims based on Christianity, his representative advised that he did in fact wish to claim protection on that basis as well.
Faili Kurdish ethnicity
In relation to the applicant’s Faili Kurdish ethnicity, the applicant initially equated this with being a stateless, undocumented person, which he later admitted was false. His protection claims were based primarily on his statelessness (including his lack of documentation and his use of a false passport to depart Iran). His response to the NOICC presented claims based on ethnicity, based on selected reports about the treatment of ethnic minorities generally in Iran and of Kurds in particular. Strikingly, the references to Kurds relate mainly to the more numerous Sunni Kurds in Iran, rather than the Faili Kurds who share the Shia faith that prevails in Iran.
The Tribunal discussed at hearing country information indicating that Faili Kurds who are Iranian nationals may experience some instances of discrimination, but there were no reliable reports of persecution or significant harm. Reports from DFAT and multiple sources have been consistent over time. The most recent DFAT country report, dated 14 April 2020, summarises this as follows: ‘Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category [i.e. citizenship or refugee status] to which they belong.

Taking into account the applicant’s statement of claims in his protection visa application, his response to NOICC and country information, the Tribunal does not accept that he faces a real chance of persecution, or a real risk of significant harm, on the basis of his Faili Kurdish ethnicity.
Failed asylum seeker
In the response to NOICC, the applicant’s representative presented claims that the applicant is at risk on his return to Iran as a ‘failed asylum seeker from a Western country’, which he posited is a particular social group because of the ‘unique characteristic’ of having their asylum applications refused in a Western country. The submission added that the applicant’s Kurdish ethnicity may attract some additional scrutiny on his return to Iran, and that his prolonged absence would lead the authorities to presume that he had sought asylum. (The NOICC response went on to claim that the applicant and his son are professional musicians, and that the applicant also fears that he will be imputed with an anti-government political opinion, as a musician as well as a failed asylum seeker from a Western country. At hearing, the representative advised that these claims had been inserted in error.)
The Tribunal put to the applicant country information indicating that many Iranians live abroad, often for economic and social reasons, and the Iranian authorities do not appear to be concerned about returnees, except when they have a prior adverse profile (such as political dissidents). The appliecant replied that, irrespective of attitudes in the large cities, Ilam is a small city with religious fanatics. He went on to speak about his claimed conversion to Christianity.
Again, country information about the prospects for returnees to Iran, including failed asylum seekers, has been consistent over time. The latest DFAT report, issued on 14 April 2019, states at paragraph 5.29:
Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration officials suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
It continues at paragraph 5.30:
International observers reports that Iranian authorities have little interest in prosecuting Iranian asylum seekers for activities conducted outside Iran, including in relation to protection claims. [This section goes on to address sur place conduct, such as conversion to Christianity.] Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. […] the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
The Tribunal notes that the applicant does not have any adverse profile in Iran, and has not claimed to have undertaken any activities in Australia that even arguably could be of adverse interest to the Iranian authorities. Having regard to his personal circumstances as well as country information discussed at hearing (which is consistent with the most recent reports), it is not satisfied that Australia has protection obligations in respect of the applicant on the basis of his return to Iran as a failed asylum seeker, including as a person of Kurdish (Faili Kurdish) ethnicity, his past residency in Australia or any other factors (including his claimed conversion to Christianity, which the Tribunal assesses below).
Conversion to Christianity
The submission of 11 February 2019 sets out the applicant’s claims to be owed protection between pages 8 and 15. The only clear reference to religion is that Kurds are subjected to persecution and significant harm because the Shia majority assume they are all Sunnis (in other words, the mainly Shia Faili Kurds face problems because of this assumption). There is no mention of the applicant (or family members) having abandoned Shia Islam.
At the hearing on 14 February 2019, the applicant, his wife and their daughter swore oaths on the Bible. During the course of discussion, when the Tribunal was seeking to confirm that the applicant is a Faili Kurd and Shia Muslim, he corrected the Tribunal by stating that he converted to Christianity some two or three weeks earlier. In the subsequent exchange, about why Australia has protection obligations in respect of him, there was no mention of Christianity. The applicant said that he had presented all his claims. The Tribunal noted his earlier mention of Christianity, and checked that he did not wish to present claims relating to that. The applicant confirmed that was indeed the case, adding that he had not wanted to create the impression that he had converted to Christianity simply for the purpose of obtaining permanent residency in Australia. Despite this, the representative commented that it would indeed be appropriate for the Tribunal to take into account the applicant’s claimed conversion as part of its assessment of Australia’s non-refoulement obligations.
The Tribunal finds it striking that, after more than eight years in Australia, the applicant (and his family) claimed to have converted to Christianity just two or three weeks prior to the hearing (and just after the Tribunal had sent its hearing invitation letter); and that there is no mention of this as a claim in the detailed submission of 11 February 2019, just three days earlier. The Tribunal considers the applicant’s claimed reluctance to advance this as a claim for fear of being seen as opportunistic to be contrived and lacking in credibility, particularly given his representative’s later advice that the Tribunal should indeed assesses the applicant’s and his family’s claimed conversion. The Tribunal rejects this claim as a recent fabrication.
Conclusion on discretionary considerations
Summary
The Tribunal has considered all the circumstances relevant to the exercise of its discretion as to whether the visa should be cancelled. In weighing the various discretionary factors, the Tribunal gives primary consideration to the best interest of the applicant’s [age] year old son, finding that it is in his best interest that the visa not be cancelled. The Tribunal also takes into account other considerations in favour of non-cancellation, in particular the applicant’s present circumstances as an employed person with a stable family; the consequences for his wife and daughter of cancellation; and the period that has elapsed since the non-compliance.
The Tribunal shares the delegate’s concerns about the seriousness of the applicant’s non-compliance, and, as noted above, it has some ongoing concerns about his credibility and conduct. However, it finds that at the time of this decision, the considerations in favour of the applicant outweigh the grounds for cancellation, and the preferable decision is that the visa should not be cancelled.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
James Silva
Member

ATTACHMENT A - RELEVANT LAW
Subsection 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104 or 105 or with subsection 107(2) of the Migration 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 their circumstances.
The exercise of the cancellation power under section 109 of the Migration Act is conditional on the Minister issuing a valid notice to the visa holder under section 107, giving particulars of the alleged non-compliance. If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·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.
Whilst 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: Minister for Immigration and Citizenship 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 Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.
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.

[2020] AATA 4550

16 September 2020

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