1805041 (Refugee)

1805041 (Refugee) [2020] AATA 3366 (30 April 2020)

CORRIGENDUM

DIVISION: Migration & Refugee Division

CASE NUMBER: 1805041

COUNTRY OF REFERENCE: Other

MEMBER: Kate Millar

DATE OF DECISION: 30 April 2020

DATE CORRIGENDUM

SIGNED: 4 May 2020

PLACE OF DECISION: Adelaide

AMENDMENT: The following correction is made to the decision:

Paragraph 1 of the decision is amended by deleting “200” and replacing it with “866”.

Kate Millar

Senior Member

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1805041

COUNTRY OF REFERENCE: Other

MEMBER: Kate Millar

DATE: 30 April 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 30 April 2020 at 4:38pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – incorrect information in visa application – citizenship – not stateless Faili Kurd but Iranian citizen by marriage – documentation – forensic examination – credibility – maintenance of statelessness claim and claim that ex-husband provided false documents to force her to return – Australian divorce not recognised by Iranian law or accepted by ex-husband – second marriage to Iraqi citizen, Australian permanent resident – two children with ex-husband and young child with second husband – threats of violence or killing by ex-husband – Iranian law on adultery laws – best interests of young child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 101, 105, 107, 109, 120, 140, 189, 197C, 198, 376, 424A
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235

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 applicant] came to Australia in 2010 and was granted a Class XA, Subclass 200 (Protection) visa on the basis that she was a stateless Faili Kurd whose usual place of residence was Iran.
In 2015, the Department of Home Affairs was provided with copies of documents, including a purported Iranian passport for [the applicant], birth certificates for [the applicant] and her [children] [Child 1] and [Child 2], and a marriage certificate and Iranian identity card for [the applicant].
As a result, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs cancelled [the applicant]’s visa on 26 February 2018 on the basis that she had provided incorrect information in her visa application; in particular that [the applicant] provided information that she was stateless when the delegate found she was an Iranian citizen.
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 applicant] appeared before the Tribunal on 20 February 2020 to give evidence and present arguments and was represented by her registered migration agent. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of interpreters in the Arabic, Kurdish and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substituted with a decision not to cancel her Subclass 866 (Protection) visa.
CERTIFICATE ISSUED UNDER S.376 OF THE ACT
The Tribunal summonsed information and documents relied on by the delegate in finding that [the applicant] was not stateless as she had claimed from the Department as it was apparent that not all documents were before the Tribunal, and they had not been provided to [the applicant].
The documents returned were accompanied by a certificate issued under s.376 of the Act. Where the Tribunal is given a document or information and is notified this section applies, it may have regard to any matter contained in the documents. It may also, after having regard to any advice given by the Secretary about the significance of the documents or information, disclose any matter or information to the applicant or any other person who has given written or oral evidence to the Tribunal.
In this case, [the applicant] had not been provided with copies of the documents it is stated establish that she is a citizen of Iran, or the information from her ex-husband [Mr B]. The Tribunal considered it necessary to provide copies of the documents relied on so that [the applicant] could inspect the documents and provide oral evidence and submissions on the documents.
The Tribunal provided a copy of the documents to [the applicant] together with a notice issued under s.424A of the Act, as specified below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if, among other things, the visa holder has failed to comply with ss.101 of the Act. This section requires non-citizens to provide correct information in their visa applications.
To exercise the cancellation power under s.109 of the Act, the Minister must first issue a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged noncompliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
In this case, the Department was provided with identity documents that purport to show [the applicant] is a citizen of Iran and not stateless as she had claimed in her visa application.
As a result, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107.
The Tribunal has examined the notice issued under s.107 and is satisfied it generally complies with the statutory requirements.
The notice issued under s.107 does not state that the Minister will consider cancellation when the holder provides a response (107(1)(c)(ii)), however this is not material in the case as the delegate did not make a decision until 26 February 2018, considerably more than 14 days after the notice was issued.
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 identified and particularised in the s.107 notice was non-compliance with s.101(b).
Section 101(b) requires a non-citizen to fill in or complete his or her application form in such a way that no incorrect answers are given.
The s.107 notice sets out a great deal of information, and the particulars start at page 6 of the notice.
The assertion is that [the applicant] is a citizen of Iran, not stateless as she claimed. This is based on identity documents listed on page 4 of the s.107 notice, being:
·Iranian passport number [Number], issued [in] 2009
·Birth certificate/identity certificate (Shenasnameh) with national code number [Number] with the date of issue of [June] 2002 and date of marriage being [June] 2002.
·Iranian national identity card number [Number]
·Iranian educational qualification document
As a result, the particulars of the possible non-compliance are given at page 6 of the notice of the s.107 notice:
·At question 20 of part C of the Form 866, which states "Your current citizenship (if to at birth)", you answered "N/A" and not "Iranian". This is incorrect, as it is apparent that you gained Iranian citizenship when you married your partner [in] June 2002, as stipulated in your marriage certificate, and thus, were so at the time of submission of your Form 866 - Application for a Protection (Class XA) visa application on 26 October 2010.
·At question 41 of part C of the Form 866, which states "I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)" in response to which you answered "Iraq & Iran", this is incorrect as the evidence before me proves you are not stateless, but are in fact a citizen of Iran; and therefore, you are not owed Australia's protection from Iran as a stateless person may.
·At question 42 of part C of the Form 866, which asks "Why did you leave that country?" you answered "See statement attached to RSA application". As you (sic) claims for protection were based on being a stateless person, which meant you were persecuted and subjected to discrimination by the Iranian government and the Basij. However, the evidence held by the Department suggests you are in fact an Iranian citizen, and were so at the time you lodged your Form 866 - Application for a Protection (Class XA) visa application.
·At question 43 of part C of the Form 866, which asks "What do you fear will happen to you if you go back to that country?" you answered "See statement attached to RSA application". In the statement of claims you refer to you stated "We were living illegally in Iran and have no civil rights there. The Iranians do no (sic) want us and regard us as Iraqis." This is incorrect as according to evidence held by the Department the Iranian government has recognised your marriage to your Iranian husband and consider you to be an Iranian citizen, and as such afforded the same rights as Iranians born in Iran.
·At question 44 of part C of the Form 866, which asks "Who do you think may harm/mistreat you if you go back?" you answered "See statement attached to RSA application". In the statement of claims you refer to you stated "In Iran I particularly fear the Basij and the Government of Iran." This is incorrect as based on the evidence before me, I consider you are an Iranian citizen, which means your claims of persecution based on being a stateless person were unfounded at time of your protection visa application.
·At question 45 of part C of the Form 866, which asks "Why do you think this will happen to you if you go back?" you answered "See statement attached to RSA application". In the statement of claims you refer to you stated "As a Faili Kurd, I am not welcomed or protected by the Iranian authorities... ", This is incorrect as the evidence held by the department shows you to be an Iranian citizen at the time of your protection visa application therefore your claims of persecution based on being a stateless person are considered unfounded.
·At question 46 of part C of the Form 866, which asks "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" you answered "See statement attached to RSA application". In the statement of claims you refer to you stated "No. If the Government of Iran had supported me before, I would feel that they would do so now. However, as they have not protected us over the past years or let us live secure lives as Iranian residents, I do not believe that they will do so at this time." This statement is incorrect as the evidence before indicates you are an Iranian citizen, your claims of persecution based on being a stateless person are considered unfounded.
·At question 50 of part C of the Form 866, where it asks "Did you have difficulties obtaining a travel document (such as a passport) in your home county?" you marked the "Yes" box and stated "Smuggler obtained passport for me". This is incorrect as the evidence in the form of your Iranian passport; number [Number], issued [in] 2009, refutes your answer to the question, as you clearly held an Iranian passport at the time you lodged your Form 866 - Application for a Protection (Class XA) visa application on 26 October 2010.

22. In submissions accompanying her response to the s.107 notice, [the applicant] provided a copy of an Iraqi passport in the name of [Mr B]. It is submitted this shows [Mr B] is a citizen of Iraq and is therefore not a citizen of Iran. In her response to the Department, [the applicant] also provided a statutory declaration,and in summary she declares:

·She has not provided any misleading information to the Department of Immigration, and that she has no Iranian nationality.
·The documents on the file with the Department are false. Her ex-husband [Mr B] had threatened her and her children after the relationship broke down by saying he would make her return to Iran to punish them all.
·They married [in] March 1997 in Tehran and were both stateless Faili Kurds at the time of the marriage.
·She lived with her ex-husband in Iran until she left with their [children] in 2009. They travelled to [Country 1] and then came to Australia to seek asylum on the basis of their statelessness.
·They lodged an application for her ex-husband to join them in 2011 but this application was refused after a change to migration policies in 2012.
·She stayed in contact with her ex-husband until early 2012. After then, their relationship deteriorated.
·In June 2012 they decided to divorce. She lost contact with him on 1 June 2012 and has not been able to locate him to serve a divorce application. At that time he was in Baghdad, Iraq, and had told her he and his family returned to Iraq as they did not have legal status in Iran.
·A divorcer order was made by the Family Court [in] October 2014. She could not locate [Mr B] to serve the divorce application.
·She married her current husband [Mr A] [in] March 2016.
·Her ex-husband started contacting their children from Iran through her brother, [Mr C]. She believes one of her children told him she had remarried and he was angry and started sending abusive messages.
·He told her brother [Mr C] that he would find her and bring her back to Iran and have her stoned to death because she is still his wife under Islamic Sharia.
·She believes he purchased the documents to show she was an Iranian citizen with the hope she will be deported. He is correct to say they are still married under Islamic law, as they are not divorced under Islamic law

Submissions accompanying this declaration state that the date of the marriage in the certificate was after the birth of one of the children, which is highly unlikely in Iran and is incorrect as the date of the marriage was [March] 1997.
After the s.107 notice was issued, the delegate issued another notice, purporting to be under s.120 containing further information and inviting [the applicant] to comment on this further information. In general, this was in response to her response to the notice, and to provide new information. It stated:
·The date of the marriage cited by the delegate in the s.107 notice was [June] 2002, and [the applicant] has stated this is not possible as it was after the birth of her child. The notice states that according to the marriage contract the date of marriage is stated to be based on a marriage certificate issued [in] August 1997 “through No. [Number] on Aug. [Date] 1997.”
·That the Iranian citizenship of her husband [Mr B] was confirmed by the Department sighting and inspecting the Iranian passport of [Mr B]’s brother [Mr D], with his father’s name [Mr E] listed on the passport. It is stated that to be on the Iranian passport, the father must be an Iranian citizen and as Iranian citizenship is passed on through the father [Mr B] is an Iranian citizen. Iranian citizenship can be acquired by marriage.
·To obtain a Divorce Order, [the applicant] provided a certificated copy of a marriage certificate which was certified [in] February 2014. The translation and registration of a marriage deed seven months before the divorce was finalised shows, in the view of the delegate, that [Mr B] co-operated in this process.
Section 120 of the Act does not apply to cancellations under s.109 of the Act. The Tribunal can only have regard to particulars set out in the notice issued under s.107 of the Act, as the non-compliance must be in the way particularised in that notice. The particular regarding [Mr B]’s brother was not included in the s.107 notice, and erring on the side of caution, the Tribunal did not have further regard to this particular.
The documents were referred to a forensic document examiner, who stated no irregularities were detected in the Iranian passport of [the applicant], the Iraqi passport of [Mr B], the Iranian identity card of [the applicant] and the Iranian shenasnameh (birth certificate) of [Child 1]. One of the pages of [the applicant]’s shenasnameh was not of a sufficient standard to be evaluated.
The Iraqi passport provide by [the applicant] for [Mr B] was also found to have no irregularities detected. His Iraqi identity card was considered of an insufficient standard to allow verification.
Before the hearing, information and documents were put to [the applicant] for comment under s.424A of the Act. The documents had been provided by her ex-husband, [Mr B], who consented to release of the information. It was put to [the applicant] that the Tribunal held information that showed she was a citizen of Iran. The documents provided to her were:
·An Iranian identity card for [Mr B].
·A complete copy of an Islamic Republic of Iran passport for [Mr B]
·Emails from [Mr B] dated [Date 1] December 2015, [Date 2] December 2015, [January] 2016, stating he did not want to be anonymous, that [the applicant] took his [children] and everything they owned and fled Iran. He does not want [the applicant] back but wants to be with his [children]. Other emails state he gave his wife all his money and savings to come to Australia on the understanding that she would sponsor him when they got to Australia, but after they obtained permanent residence, she refused to sponsor him. It is stated her father [Mr F] is also responsible as he supported her.
·     Iranian identity cards and marriage contract
·Iraqi passports for [Mr F], [Mr C], [Mr G]
·     Translation of a national identity card (Iran) for [the applicant]
·     Translated shenasnameh for [the applicant]
·     Translated marriage deed
·     Translated shenasnameh for [Mr B]
·Australian visas for [the applicant], [Child 2] and [Child 1]
·     Translated shenasnameh for [Child 1] and [Child 2]
In response, [the applicant] said the national identity card for [Mr B] is not genuine as they had tried to get Iranian identification on many occasions but could not. She said she thought the copy of the Iranian passport issued to her and her [children] was the passport she used to exit Iran. She states the passport is genuine but obtained illegally, and this has been used by her ex-husband and the same agent to falsify other Iranian identification documents.
This is not consistent with her claims at the time she applied for a protection visa. In this application she claimed that she travelled on a document that was not in her name but had her photograph inserted. The passport provided by [Mr B] is in [the applicant]’s name.
In regard to the Iraqi passport for her parents and brother, [the applicant] states that while they were in Iran the authorities did not allow them to leave. She states the Australian embassy issued visas and said they could be collected in [Country 2]. Her family then paid money to an agent to obtain Iraqi passports and used these passports to exit Iran. The passports were only used to travel from Tehran to [Country 2]. She states she condemns her ex-husband’s conduct on providing private documents of her family. She states her ex-husband said he could get fake Iraqi identification if she lodged a spouse visa for him. She states he also offered to get a fake Iranian passport and identification so he could join them in Australia but she could not do that because it was wrong.

[The applicant] said that to come to Australia they paid an agent to make documents for them, which cost a lot of money as the documents were legal documents obtained illegally. She said they could not afford to pay for her husband to leave, and they could not afford to purchase a passport for her husband.
[The applicant] was asked whether if a woman married an Iranian citizen, she would become an Iranian citizen. She answered that her ex-husband is not Iranian. According to Article 976(6) of the Nationality Law[1] a woman who marries an Iranian man will be granted Iranian nationality.
[1] The Nationality Law in Iran are established in Articles 41 and 42 of the Constitution of the Islamic Republic of Iran and the Iranian Civil Code as found in Book 2 On Nationality (see >
The marriage certificate provided is dated [June] 2002. The Tribunal accepts that as this was after the date that [Child 1] was born, this is highly unlikely in Iran given the penalty for extra-marital relationships.[2]. Further information put to [the applicant] by the delegate before a decision was made was that the marriage certificate had an annotation that:
The mentioned couple married based on marriage certificate No.[Number] issued by [Mr H] on Aug.[Date] 1997 through No. [Number] on Aug [Date], 1997 that is confirmed copy attached to the file and whereas the wife is a citizen of Iraq the marriage registered by virtue of refuges residence bearing No. [Number] issued by ministry of foreign affairs on Jun [Date], 2002 and valid to Spt. [Date], 2002 and based on marriage residence licence under No. [Number] dated Jun. [Date], 2002 the marriage took place.
[2] Zina (extra-marital sex) is a crime, punishable by either 100 lashes or the death penalty, depending on the legal status of the accused:‘Gender Inequality and Discrimination: The Case of Iranian Women’, Iran Human Rights Documentation Centre (United States), 8 March 2013, p. 10, CIS25511;'IHRDC Translation of the New Islamic Penal Code of the Islamic Republic of Iran – Books One and Two', Iran Human Rights Documentation Center (United States), 8 April 2014, Article 230, CIS27755. Articles 224–226 describe those cases of zina that result in the death penalty.
[The applicant] states this date is still incorrect as the religious marriage certificate she provided states the date of marriage is [March] 1997.
The Tribunal does not consider that the 2002 date of the Iranian marriage certificate should be discounted because of the date of birth of [Child 1] due to the annotation, which shows a year of marriage of 1997. While the month and day does not match the religious marriage certificate provided by [the applicant], the Tribunal considers other factors consistent with [the applicant]’s background make this certificate convincing, such as that she was a citizen of Iraq and that she held a refugee residence card. [The applicant] stated at hearing that she provided a copy of her green card (refugee residence card) to the Department when she entered Australia, which included the names of her parents and siblings, however the Tribunal could not locate a record of this occurring. She said she was sure she had provided it at the Perth detention centre. It was put to her that her visa application states that she lost her green card before coming to Australia, at which point [the applicant] said her brother had a green card which listed all the family members and that he had provided this to the lawyer taking care of her case. [The applicant]’s green card was not before the Tribunal, and the only record of this was in her application where she stated she had lost her card. The Tribunal found [the applicant] was not a truthful witness in this regard.
[The applicant] said they left from the airport in Tehran and described the process for leaving Iran by stating she met the agent at the airport and he told them to go to one of the offices in the airport, “everything was checked” and nothing went wrong. She said the person looked at her eyes and checked her photograph and that of her [children]. After she was in the office she came out and flew to [Country 2]. She said she did not see anything happen to her documents. It was put to [the applicant] that country information shows it is difficult to leave Iran on false documents.[3] The Tribunal asked if she left Iran on her own genuine passport. [The applicant] maintained she left Iran on a false document.
[3] In May 2005, the Department of Foreign Affairs and Trade (DFAT)
It was also put to [the applicant] that the nature and variety of the documents provided to the Department regarding her Iranian citizenship including a passport, a shenasnameh and an identity card support that she is an Iranian citizen. The passport was issued [in] 2009, which is consistent with the time she left Iran.
[The applicant] said she does not have a birth certificate as she was born in Baghdad. She said all the documents provided by her former husband are false documents created by him to make them go back to Iran. This included false documents for her parents and brother, being their Iraqi passports. She said she believed he paid to obtain false documents. She said she had provided a copy of her ex-husband’s Iraqi passport to show he could not be a citizen of Iran. She reiterated that she could not obtain any documents because she was not a citizen of Iran.
[The applicant] provided a copy of an Iraqi passport in the name of [Mr B] issued [in] 2013 and states this shows she is not a citizen of Iran as her ex-husband is a citizen of Iraq. Reports exist of people holding dual nationality, whether or not this is recognised by Iran. Iraq recognises dual citizenship.[4]
[4] 'The Constitution of Iraq 2005', Republic of Iraq, 13 January 2005, p.7, CIS9BE2467714; 'Iraqi Nationality Law', Republic of Iraq, 7 March 2006, CIS18097; 'The World Factbook: Iraq', Central Intelligence Agency (CIA), 15 January 2020, 20200117130200; 'Country Position Paper: Statelessness in Iraq', European Network on Statelessness, Institute on Statelessness and Inclusion, November 2019, p.8, 20191217131632
According to the Central Intelligence Agency’s World Factbook chapter for Iran, updated on 8 January 2020, Iran does not recognise dual citizenship.²³ Reports indicate, however, that while Iran does not recognise dual citizenship, in practice Iranians are able to hold foreign citizenship in addition to their Iranian citizenship. For example, an August 2019 Agence France-Presse (AFP) report stated that:
Iran does not recognise dual citizenship and refuses to provide consular aid to Iranian dual nationals.
...Iran has arrested and imprisoned a number of Iranians with dual nationality, in what Western governments have denounced as a ruthless policy to exercise diplomatic pressure.²⁴
[Mr B] provided a copy of his Iranian passport to the Tribunal. The information that the Tribunal has an Iranian passport for [Mr B], which would show that by marriage she acquired Iranian citizenship, was put to [the applicant] under s.424A of the Act. [The applicant] chose to respond at the hearing and said that when she was in Iran she never held Iranian documents. The Iranian passport provided by [Mr B] in his name is consistent with known samples of an Iranian passport. The Tribunal does not consider that [Mr B] holding an Iraqi passport is inconsistent with him also holding Iranian citizenship.
[The applicant] has a passport from Iran in her name which is prima facie evidence that she is a citizen of Iran. It is not possible to verify with Iran if this is a genuine passport, as to do so may place [the applicant] at risk if she were to return to Iran, and may give rise to further non-refoulment issues.
A report from a forensic document examiner shows there were no irregularities detected in the Iranian passport of [the applicant], the Iraqi passport of [Mr B], the Iranian identity card and shenasnamehs.
It is difficult to accept that [Mr B] would provide the number of documents if his aim was merely to make [the applicant] return. He has provided a passport, identity cards, and shenasnamehs for [the applicant], [Child 1] and [Child 2], Iranian passports for [the applicant]’s parents and brother and his own identity documents including an Iranian passport and identity card. Any fraudulent documents would be expensive to obtain and [the applicant] said [Mr B] did not accompany her to Australia as they could not afford documents for him. [The applicant] said he worked as [an occupation] in Iran. On being asked how he would be able to pay for the range of documents provided, [the applicant] said she did not know, and perhaps he is working.
A finding such as this cannot be made lightly as the consequences and gravity of such a finding demand that the decision maker is positively satisfied that this is the case. It is also not for [the applicant] to satisfy the Tribunal that she is not Iranian, it is for the Minister, and the Tribunal in the Minister’s place, to establish that she is Iranian.[5].
[5] Zhao v MIMA [2000] FCA 1235
In this case there is an Iranian passport in [the applicant]’s name that a forensic document examiner has examined and found no irregularities. This is prima facie evidence that she is an Iranian citizen. A number of other identity documents have been provided and the nature and range of these documents supports that [the applicant] is a citizen of Iran. The Tribunal finds the nature and range of documents supports that [the applicant] is a citizen of Iran.
As a woman becomes an Iranian citizen on marrying an Iranian citizen, the Tribunal finds the marriage certificate is convincing information that she acquired Iranian citizenship on registration of the marriage in June 2002. This is supported by the subsequent issuing of an Iranian passport, shenasnameh and identity card.
While the Tribunal accepts that [the applicant]’s ex-husband is motivated by returning family members to Iran, on balance it does not accept he could afford to have the nature and range of documents produced illegally given that he could not travel with them to Australia as they could not afford a passport for him.
The Tribunal is satisfied [the applicant] is a citizen of Iran and was a citizen of Iran at the time she applied for the visa. It follows that her answer to questions 20, 43, 45 and 50 in her application were incorrect.
For these reasons, the Tribunal finds that there was non-compliance with 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 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 Migration Regulations 1994.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal first considered the prescribed factors, and then additional factors. In assessing these factors, the Tribunal does not have the benefit of [the applicant]’s evidence as she maintained at hearing that she is stateless and not a citizen of any other country.
The correct information
The correct information is that [the applicant] is a citizen of Iran and not stateless as she claimed.
The content of the genuine document (if any)
As [the applicant] did not provide documents with her visa application, this is not in issue in this case.
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 decision to grant [the applicant] a Class XA-Subclass 866 visa was based, at least in part, on her claim to be stateless. The decision of the Independent Merits Reviewer cited in the decision record is that she had a well-founded fear of persecution in Iran by reason of being a member of a particular social group; being a displaced person in Iran with no official documentation and of Faili Kurd ethnicity.
A fundamental component of this finding was that she did not have official documentation, and as such the decision to grant her a visa is partly based on incorrect information.
The circumstances in which the non-compliance occurred
[The applicant] claims to be a Faili Kurd, which may itself lead to a claim regarding protection, although at the time she applied, her claim was initially refused because the view of the delegate was that the discrimination suffered by Faili Kurds in Iran did not amount to persecution and therefore she did not meet the definition of a refugee.
This decision was overturned on an Independent Merits Review, where it was found [the applicant] had been physically and verbally harassed by the Basij because of a lack of identification, had been unable to obtain identity documents despite her attempts and lived in fear of being assaulted or detained because of a lack of identity documents.
[The applicant] maintained she was stateless at hearing. She said she could not work, study or buy property and all her family had the same problems. She said she came to Australia for her [children’s] future as they could not continue their study. The Tribunal does not accept [the applicant] or her [children] were stateless as claimed at the time of the application.
The present circumstances of the visa holder
[The applicant]’s parents [and a number of siblings] live in Australia. One brother also arrived by boat, and her sister holds a spouse visa.
[The applicant] said she is the caregiver for her father who has [a medical condition] and high blood pressure, and he cannot work due to problems with his leg. [The applicant] does not live with her father, who lives with her mother, her sister and her nieces. On being asked if there was any reason the family members who live with her father cannot provide the care he needs, she said she has been caring for him for year and takes him to appointments because she can drive. [The applicant] said her mother is sick herself and a pensioner, and her brother is the carer of her mother. She said her sister has depression. [The applicant] and her brother receive Centrelink payments for caring for each of their parents.
No medical evidence was provided about conditions suffered by her father, mother or sister, or the care required by each of them. The Tribunal accepts [the applicant]’s father suffers from conditions that result in him requiring care as [the applicant] receives Centrelink payments for providing this care, but on the information before it is not able to conclude that others in the household, or her brother, cannot provide the assistance her father requires.
[The applicant] married [Mr A] [in] March 2016. She said [Mr A] lost his [body part] as a result of a bullet wound in Iraq. Their [child], [Child 3], was born on [Date]. Mr [A] is a citizen of Iraq and holds a permanent visa. He said he was granted the visa because his brother was killed for collaborating with the Americans. He said he does not have the right to live in any other country. [The applicant] says she cares for [Mr A], but it was not specified what type of care he requires.
[The applicant] has two [children], [Child 2] who is [age] years old and [Child 1] who is [age] years old. Her [children] are further considered in the discussion of consequential cancellations and non-refoulment obligations below.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
This division contains requirements not to give incorrect answers, to complete visa applications correctly, to notify of changes in circumstances and to notify the particulars of any incorrect answer.
As this division requires a person to notify that an answer given on their application form was incorrect at s.105(1), and this obligation applies despite the grant of the visa (s.105(2), [the applicant] has breached this obligation in failing to notify she is a citizen of Iran.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance before the Tribunal
The time that has elapsed since the non-compliance
[The applicant] applied for the visa on 20 March 2010, and it has been 10 years since she provided the incorrect information.
Any breaches of the law since the non-compliance and the seriousness of those breaches
[The applicant] has maintained she has not breached any obligations, and there are no other recorded breaches of the law.
Any contribution made by the holder to the community
No submissions were made about any contributions [the applicant] has made to the community.

Additional factors considered by the Tribunal

The Tribunal has also considered additional factors raised in the policy of the Department.
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
[The applicant] arrived in Australia as an unauthorised maritime arrival. Under s.46A if her visa is cancelled she cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa, and as a result the effect of the cancellation is that [the applicant] is liable to be detained under s.189 of the Act.
Under s.198(5) of the Act, she would be removed from Australia as soon as practicable. Under s.197C Australia’s non-refoulement obligations are irrelevant to removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulment obligations. This means the potential harm to [the applicant] and her [children] from her ex-husband or under the law in Iran if they are removed would not be considered before removing her from Australia.
Whether there would be consequential cancellations under s.140
Under s.140(2) if a person’s visa is cancelled under s.109 and another person holds a visa only because the person whose visa is cancelled held a visa, his or her visa may be cancelled. While the basis on which [Child 1] and [Child 2] hold a visa is not before the Tribunal, the delegate acknowledges that if [the applicant]’s visa is cancelled, their visas will also be cancelled.
After the hearing [the applicant] provided a statutory declaration from [Child 2]. [Child 2] declares [s/he] has witnessed episodes of physical violence towards [her/his] mother from [her/his] father and recalls also being hit by [her/his] father. [She/He] declares that [her/his] father became aware in early 2017 that [her/his] mother had remarried and for two days kept calling [her/him] and stating he would kill all of them, and that he would make sure they were returned to Iran and he would burn them all alive. [Child 2] states [s/he] is afraid of [her/his] father because he was abusive to [her/him] and threatened to burn [her/him] alive, and [s/he] is sure they will be killed by him. A medical report was provided for [Child 2] dated [February] 2020, with a mental health treatment plan.

[Child 2] and [Child 1] may be able to apply for further visas if their visas are cancelled if they themselves have claims that can be assessed. The delegate did not consider the circumstances of [Child 2] or [Child 1] further in the decision, and the Tribunal does not have the benefit of information on the effect on them, or any ability to apply for further visas, and there is insufficient information before the Tribunal to determine if they could seek protection on their own behalf.
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.
The facts of this case give rise to Australia’s international obligations in regard to non-refoulment and the best interests of the child.
The approach of the delegate, which is consistent with how the Department approaches similar matters, is that an international treaties obligation assessment (ITOA) would be conducted prior to removing [the applicant] from Australia, and therefore the decision to cancel her visa would not necessarily cause her to be removed from Australia. That a further assessment would be conducted fails to engage with the question asked by this consideration.
If [the applicant] is unlawful and is detained, she is liable for removal under s.198 of the Act regardless of whether an assessment has been conducted of Australia’s non-refoulment obligations. Where the delegate does not actively assess any non-refoulement obligations or conduct an international treaties obligation assessment before making a decision to cancel a visa, this Tribunal is denied the benefit of the consideration of the Minister of this factor.
In this case, international obligations relating to non-refoulment and the best interests of the child have been raised by [the applicant].
Non-refoulement
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.
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).
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 if 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.
(i) Claim relating to unlawful departure from Iran
[The applicant] states she fears return to Iran because she left unlawfully and if she returns she will be put in jail because she is not Iranian. The Tribunal does not accept she left unlawfully and does not accept that she would be imprisoned for leaving unlawfully. As the Tribunal does not accept she is currently stateless it is not satisfied that the harm she claims as a result of being stateless will occur.
(ii) Claim relating to adultery
However, this does not mean she may not be at risk of harm is she is returned to Iran. Of particular concern in this case is the claim by [the applicant] that she is not regarded as divorced, and if returned to Iran her divorce would not be recognised, and her subsequent relationship with [Mr A] and birth of a child will lead to her being considered an adulterer.
In Iran, adultery is punishable by the death penalty or by 100 lashes. The Department of Foreign Affairs and Trade (DFAT) states that the although the media occasionally reports death sentences for adultery, very few executions for these offences have occurred in recent years.[6] DFAT also report that the Penal Code provides for the use of physical punishment with offences such as adultery attracting the punishment of flogging.[7] It is reported that the judiciary rejects the notion that floggings, blinding and amputations amount to torture, and maintain they are permitted under sharia law and are effective deterrents to criminal activity.[8]
[6] Department of Foreign Affairs and Trade 14 April 2020 DFAT Country Information Report Iran at [4.8]
[7] At [4.16]
[8] ibid
DFAT reports that a woman can only obtain a divorce with her husband’s permission or if the court determines a husband cannot provide for his family, has violated the terms of the marriage contract, is a drug addict, insane or impotent.[9]
[9] At [3.124]
[The applicant] said her divorce is not recognised in Iran and her relationship with [Mr A] and subsequent child of this relationship would result in her being regarded as an adulterer.
In the purported notice under s.120 of the Act, it is speculated that [Mr A] co-operated with the divorce as a signed franked copy of the marriage certificate was provided in 2014, seven months before [the applicant]’s divorce. The Tribunal does not consider this in itself shows [Mr B] co-operated in the divorce. [The applicant] states she was unable to contact [Mr B] prior to the divorce and there is no further information to show whether he co-operated. Due to the potential severity of the outcome if [the applicant]’s visa is cancelled and she and her [children] are returned to Iran, the Tribunal considers convincing evidence would be required such as the proceedings before the Court and how the marriage was proved and evidence regarding service of documents. It is not satisfied on the information before it that [Mr B] has divorced [the applicant], or consented to a divorce or that her Australian divorce would be recognised in Iran.
As a result, the Tribunal finds that there is a real risk that [the applicant] would be subject to torture in the potential penalty for adultery if she returns to Iran an that her return may be a breach of Australia’s international obligations a contained in the Convention on Torture.
(iii) Claim relating to honour killing
[The applicant] and [Child 2] clam that they will be killed if they return to Iran. [Child 2] declares in a statutory declaration that when [Mr B] found out [the applicant] had remarried, he kept calling and telling [her/him] “I will kill you all, I will kill you all. I will send someone in Adelaide to kill you” and “I will make sure you are [sent] back and I will burn you all alive”.
DFAT defines honour killings as murder committed by a relative as a punishment for a family member who is seen or suspected to have damaged the family reputation by her actions. DFAT reports there are no reliable statistics on honour killings in Iran, and states international observers note that honour killings are an established phenomenon in many of Iran’s outermost provinces. DFAT concludes that women perceived by the authorities to be pushing Iran’s moral boundaries face a high risk of arrest and severe punishment.[10]
[10] At [3.135]
[The applicant] said if she were to return to Iran her husband would find her and her [children]. She said it was easy to find others in Middle Eastern countries. She said that he is going to considerable effort to return them to Iran. She said the government would notify her husband that she is back in Iran because she has his children. This is supported by [Mr B]’s contact with the Department and the Tribunal seeking the return of his [children] to Iran.
[The applicant] is a member of a particular social group comprising women who have divorced outside Iran and remarried. The Tribunal considers there is a real chance [the applicant] and her [children] would be subject to honour killing if they are returned to Iran, and that her return may breach Australia’s international obligations contained in the Refugee Convention.
Best interests of the child
Article 3 of the Convention on the Rights of the Child requires that in all actions concerning children, the best interests of the child shall be the primary consideration. According to [the applicant] her [children] have been threatened by their father that if they return to Iran he will kill them. Correspondence from [Mr B] states he wants to have contact with his [children].
The Tribunal accepts [Child 2]’s statutory declaration that states [she/he] fears [she/he] will be killed by [his/her] her father if [he/she] is returned to Iran, and that it is in the best interests of [Child 1] and [Child 2] to remain in Australia with their mother.
A birth certificate was provided for [Child 3], born [Date], that names [the applicant] as the mother and [Mr A] as the father. A child born to an Iranian mother and a foreign father can apply for Iranian citizenship; citizenship is not granted automatically unlike in the case of a child born to an Iranian father.[11]
[11] At [3.125]
If [the applicant]’s visa is cancelled [Child 3] will either have to remain in Australia with [her/his] father or be detained with [her/his] mother and potentially returned to Iran. Cancelling [the applicant]’s visa will involve separating [Child 3] from one of [her/his] parents, and is not in [her/his] best interests.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
[Mr A] gave evidence that if [the applicant]’s visa is cancelled it will be very difficult as she is his wife and the mother of his [age-year]-old [child]. He is a national of Iraq and is an Australian permanent resident. He cannot return to Iraq and does not have a right to live in any other country. The Tribunal accepts it would cause [Mr A] considerable hardship if [the applicant]’s visa is cancelled.
[The applicant] has her parents, brother and two sisters in Australia and states she is the carer for her father. It is accepted her family members will suffer hardship if her visa is 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.
However there are factors that weigh heavily against cancelling [the applicant]’s visa. The Tribunal is satisfied it is in the best interests of her [child] [Child 3] and minor [child] [Child 1] to remain in Australia given the threats [Child 2] has reported receiving from [her/his] father. The Tribunal accepts that [the applicant] would be at risk if she were to be returned to Iran from her ex-husband, and could be found to be an adulterer due to her remarriage and subject to penalties that amount to torture or cruel and inhuman punishment. [The applicant]’s husband, parents and three siblings are in Australia and it would cause them hardship if she were removed from Australia.
Having regard to all the relevant circumstances, 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.
Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

Interpretation
(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.

97 Interpretation

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).

Completion 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.
Information 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.

100 Incorrect 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.

Visa 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.
Notice 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.

Decision 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.
Cancellation 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 3366

30 April 2020

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