1807853 (Refugee)

[2019] AATA 1118

1807853 (Refugee) [2019] AATA 1118 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807853

COUNTRY OF REFERENCE:                  Iran

MEMBER:Alison Murphy

DATE:13 May 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 May 2019 at 4:40pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – fraudulent documents – nationality – stateless – race – Faili Kurd – inconsistent information about dates of birth and marriage – Departmental requests for identity documents – legal entitlement to Iranian documents – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 425, 438, 499

CASES

Farah v MIAC [2011] FCA 185
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The review applicants are the applicant mother (the applicant) and her two children (then aged [ages]) who arrived in Australia by boat [in] July 2010. The applicant identified herself and her children upon arrival as stateless Faili Kurds who were formerly resident in Iran and she was granted a protection visa on that basis on 25 May 2011. The children were granted visas on the basis that they were members of her family unit.

3. On 3 May 2017, a delegate of the Minister cancelled the applicant’s protection visa on the basis it was considered she had breached s.101 of the Act by providing incorrect information in her visa application. In particular the delegate considered that she had incorrectly stated she and her children were stateless when information that had subsequently become known to the Department of Home Affairs (the Department) suggested they were Iranian citizens. The visas of the applicant’s two children were consequentially cancelled under s.140(1) of the Act.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants[1].

   [1]Rani & Ors v MIMA (1997) 80 FCR 379, Tien & Ors v MIMA (1998) 89 FCR 80 at 96, Farah v MIAC [2011] FCA 185.

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

   HISTORY OF PROCEEDING

6. The applicant was represented by her registered migration agent.

7. A hearing was scheduled for 9 May 2019. On 2 May 2019 the applicant’s representative lodged extensive documents and submissions in support of the review application. Having considered that material, the Tribunal formed the view that it should decide the review in the applicant’s favour on the basis of the material before it, pursuant to s.425(2) of the Act.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificate

9. The Tribunal has before it the applicant’s Departmental files, including both the grant and cancellation files relating to the protection visa. The Tribunal has also been provided with a copy of the off shore file relating to the applicant’s application for a partner visa for her husband and [children] remaining in Iran. That file was produced to the applicant pursuant to a Freedom of Information request and is partially redacted. The Tribunal does not have access to the information redacted from that file.

10. In the case of the cancellation, the delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.438 of the Act. Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

11. The certificate states that disclosure of the information would be contrary to the public interest because it contains documents or information that demonstrates how the Department conducts its law enforcement activities, the release of which could undermine future law enforcement practices.

12. I am satisfied the s.438 certificate is valid. The documents covered by the certificate evidence routine investigations undertaken by the Department in cases such as this. They contain no adverse information that is not otherwise disclosed in the s.107 notice and the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

14. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

15. I note that the s.107 notice sets out in detail the information given by the applicant in her protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

16. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

17. 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.

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

    ·that the applicant answered questions in her application for protection and attached a statutory declaration to the effect that she and her family members were stateless Faili Kurds who did not hold citizenship of any country;

    ·that the applicant has given inconsistent information about her date of birth and date of marriage.

19. For the reasons set out in the following paragraphs, the Tribunal is not satisfied that the applicant gave incorrect information to the Department about her status or that of her family as stateless Faili Kurds, nor that she has given incorrect information about her date of birth. It follows that the ground for cancellation is not established and the decision to cancel the applicant’s visa should be set aside and substituted with a decision not to cancel the applicant’s Subclass 866 (Protection) visas.

    The non-compliance described in the s.107 notices

20. A notice under s.107 was sent to the applicant on 3 May 2017. The s.107 notice set out that during the process of making an application for a protection visa, the applicant had identified herself and her family members as undocumented stateless Faili Kurds in her visa application. 

21. The notice set out that the applicant had stated in her visa application that she and her family were stateless Faili Kurds who had problems with the Iranian authorities and other agencies. She stated they left Iran because they had no citizenship and had problems with the Iranian authorities. She stated the family had no documents and her children were not able to go to school to get an education.

22. The notice set out that on 17 October 2012 the applicant’s husband, [named], lodged an application for a partner visa, including the applicant’s [adult children, named]. The applicants for the partner visa initially claimed to be stateless but later produced identity documents at the request of the Australian Embassy in Tehran. In particular they produced copies of Iranian passports for each of [the applicant’s husband and adult children] and a copy of a National Identity Card (NIC) for [the applicant’s husband]. Further a marriage certificate referred to the applicant as being the holder of a shenasnameh, an Iranian identity document issued only to Iranian citizens.

23. The notice set out that that as such identity documents are issued only to Iranian citizens, these documents indicated the applicant and her family members were Iranian citizens, not stateless as claimed.

24. The notice also set out alleged discrepancies between the applicant’s statement in her protection visa and the above documents in relation to the applicant’s date of birth and date of marriage as follows:

    Form 866C

    Question 7      Date of birth and age

    You stated: [date of birth 1 and age] years

    Question 14     Relationship status

    You stated the following regarding your marriage:

    Date of marriage: [date of marriage 1]

    Place of marriage: Unknown

25. The applicant did not respond to the s.107 notice.

    The applicant’s ethnicity

26. It is not in dispute that the applicant is of Faili Kurd ethnicity, nor that she was formerly resident in Iran before travelling by boat to Australia in July 2010. The refugee status assessor, who assessed her protection claims in 2011, was satisfied she and her family were among the many thousands of Faili Kurds who were expelled from Iraq by the Ba’athist government in Iraq and fled to Iran.  In its most recent country information report for Iran, the Department of Foreign Affairs and Trade (DFAT) states:

    3.13 The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinctive dialect

    . . .

    3.14 Upon seizing power in the 1960s, the Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree No. 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is very much at the high end). Iran recognised many (but not all) Faili Kurds as refugees. The number of those remaining in Iran is unclear. Many returned to Iraq after the fall of Saddam Hussein in 2003: UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran.

27. I note that in all stages of the assessment process the applicant is recorded to have participated in interviews with the assistance of a Faili Kurd interpreter and I accept her to be of Faili Kurd ethnicity.

28. DFAT reports that there are three main groups of Faili Kurds that live in Iran:

    ·Iranian citizens;

    ·those of Iraqi origin who are registered refugees;

    ·those of Iraqi origin who are not registered refugees.

29. DFAT states that accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available[2]. The UK Home Office confirms that certain ethnic minority groups in Iran, including Faili Kurds, are either stateless or at risk of statelessness[3].

    [2] DFAT Country Information Report: Iran 7 June 2018 at 3.13 – 3.14

    [3] UK Home Office September 2018 Country Policy and Information Note Iran: Background Information Including Actors of Protection and Internal Relocation at 21.2

30. At issue in this case is whether the applicant and her family lived in Iran as refugees as claimed or whether she or they acquired Iranian nationality. The applicant claims to have lived as a refugee in Iran, while the delegate appears to have formed the view that she is among the group of Faili Kurds of Iraqi origin that have been granted Iranian citizenship.

31. Whether the applicant and her family are Iranian nationals is a question of fact. The Departmental files identify two matters that might be thought to cast doubt on the applicant’s claims she and her family are stateless Faili Kurds living in Iran:

    ·The identity documents produced by her husband in support of their partner visa application;

    ·Apparent discrepancies between the applicant’s statements about her date of birth and marriage and the identity documents produced by her husband.

    Evidence before the Tribunal

32. In documents and submissions lodged with the Tribunal on 2 May 2019, the applicant maintained that she and her family members were stateless Faili Kurds and denied providing incorrect information about her statelessness or her personal details to the Department in her protection visa application or accompanying statements and documents.

33. In relation to the identity documents provided by her husband in support of the partner visa application, she stated that they were false documents submitted by her husband to the Australian Embassy in Tehran after repeatedly informing the Embassy that the family could not meet the Embassy’s ongoing requests to provide identity documents.

34. She stated that the Department continued to demand identity documents, despite the fact the Department had already accepted the family to be stateless, advising the family their partner visa application could not continue unless the requested identity documents were provided. In order to satisfy this requirement, the applicant’s husband purchased forged identity documents for himself and the applicant’s dependent children in Iran and provided them to the Department via their agent, notifying the Department that the documents were not genuine.

35. The applicant states that she is aware that the Department has at least three and possibly four birth dates attributed to her as well as variations in the spelling of her name and the names of her children.  She states that her correct date of birth is [date of birth 2] but she has never had a birth certificate, rather she was told her birth date by her mother. She states she has never been to school and is not able to read.  She does not know the exact date of her marriage, other than that she was [age] years old at the time.

36. For the following reasons I am not satisfied the applicant provided incorrect information to the Department about her statelessness or personal details:

    ·The material before me indicates the applicant was granted a protection visa on 25 May 2011 on the basis she was a stateless Faili Kurd born in Iraq on [date of birth 2];

    ·The delegate’s decision records that the application for a partner visa was made on 17 October 2012, naming the applicant as the sponsor and including their [children] who remain living with her husband in Iran;

    ·The applicant has provided to the Tribunal a copy of the Department’s overseas file [number] relating to the partner visa application produced to the applicant in response to a Freedom of Information request. Parts of that file have been redacted and the Tribunal does not have access to the redacted material. Correspondence on that file indicates the applicant and her husband repeatedly informed the Department throughout the visa application process that they were stateless and unable to produce the identity documents required by the Department to process the application. For example:

    oIn the visa application form lodged 17 October 2012, the applicant’s husband states that he is a stateless Faili Kurd born in Iraq and resident in Iran. He states his wife and children in Australia are stateless and do not have passports from any country;

    oIn a statutory declaration made by the applicant on 10 December 2012, the applicant states that she is writing the statutory declaration in lieu of missing birth certificates for her [children] because all her children were born at home in [a named] village and their births were not officially recorded, given that their parents were undocumented Faili Kurds;

    oIn an apparent response to that statutory declaration, the applicant was advised by email on 27 February 2012 that it did not meet the Department’s requirements and she was requested to provide a further statutory declaration in order for the application to proceed;

    oOn 30 April 2013, the Department wrote to the applicant’s former representative requiring her to provide certified copies of passports for all the applicants as well as a certified copy of the marriage contract. This request was renewed in response to the applicant’s representative’s advice that the applicants were unable to provide certified copies of the passports because they are Kurdish Faili and do not have passports;

    oOn 14 May 2013, the Department wrote to the applicant’s former representative advising that the application could not proceed unless the required identity documents and passports were provided. This is despite the fact that the applicant and her children had been recognised as refugees by a delegate of the Minister two years earlier on the basis that they were undocumented Faili Kurds;

    oOn 1 August 2013 the applicant’s former representative wrote to the Department advising that she had again spoken to the applicant regarding the outstanding documents, but the applicants could not obtain those documents because they were stateless. She noted the applicant was very stressed and desperate to be reunited with her family and sought the Department’s assistance in obtaining passports;

    oOn 12 August 2013, a Departmental officer again wrote to the applicant’s former representative advising that the applicants had not yet provided outstanding passports and birth records;

    oOn 22 August 2013, a Departmental officer responded to the former representative’s email dated 1 August 2013, stating she would write to her regarding that request. If that occurred, it is not apparent from the file;

    oOn 3 October 2013, the applicant’s former representative wrote to the Department seeking an update on the applicant’s case. By email dated 7 October 2013 she was advised the case had been referred to a delegate for assessment as the applicants had not provided the requested travel documents;

    oOn 8 October 2013, the applicant’s former representative wrote to the Department asking for details of the further assessment of the applicant’s case. By email dated 16 October 2013 she was advised the officer had no knowledge of assessments made by the delegate and that she would be advised in the case of any updates;

    oOn 8 January 2014, a Departmental officer wrote to the applicant advising that as a consequence of a new direction issued by the Minister under s.499 of the Act, the Department was required to process family stream visa applications sponsored by persons who arrived in Australia as illegal maritime arrivals (IMAs) after all other family stream applications. The letter advised her that this meant her IMA sponsored family stream visa would not be processed any further at this stage and would not be finalised for a number of years;

    oOn 21 September 2015, a Departmental officer wrote to the applicant advising that from 22 March 2014, new provisions were added to the current Public Interest Criterion (PIC) 4020, part of which required the applicants to satisfy the Department of their identity to be granted a visa. It advised them that at this stage, based on the available information, the delegate was not satisfied as to the identity of the applicants. It further advised that if they were refused a visa because they did not meet PIC 4020 on identity grounds, they would not be granted another visa that included PIC 4020 for a period of 10 years after refusal. It requested that in order to satisfy PIC 4020, a shenasnameh and Iranian NIC be provided for all applicants within 28 days;

    oOn 15 October 2015, the applicant’s former representative wrote to the Department advising she had informed the applicant of the Department’s request dated 21 September 2015, but the applicants do not have shenasnameh and Iranian NICs. She stated the applicants had two passports which they obtained by bribes and provided to the Department. I cannot establish from either the partner visa application file or the protection visa cancellation file exactly when the applicant’s husband in Iran provided the false documents to the Australian Embassy in Tehran. From the surrounding correspondence I conclude that occurred around this time in October 2015; 

    oOn 18 October 2015, the visa processing officer referred the representative’s response of 15 October 2015 to another officer within the Embassy for advice, noting that it was an IMA sponsored case and the sponsor had been listed as a stateless Faili Kurd. The reply of the second officer is redacted;

    oOn 27 October 2015 the Department invited the applicant to comment on its assessment that the Iranian passports produced by the applicants were bogus and therefore the applicants failed to meet the requirements of PIC 4020. The applicants were asked to provide an explanation of how and when their passports were issued and specify whether they believed there were any compassionate or compelling circumstances justifying the waiver of PIC 4020;

    oOn 30 January 2016 the former representative responded to the Department’s invitation to comment on information that the passports provided by the applicant’s husband had been deemed to be bogus. She stated that the applicant’s husband had explained that he was told by staff from the Australian Embassy in Tehran that he must provide passports otherwise they would never be able to go to Australia. He felt scared because they were stateless, they don’t have any evidence and they live in Iran without proof. She stated the applicant’s husband paid AUD[amount] to a person who helped him get passports. He would not have done it but felt he had no choice in order to join his wife and children in Australia. He was unable to afford to purchase all the passports at once, first buying passports for the children and then one for himself. She set out a range of factors as being compassionate and compelling, including that the family were stateless Faili Kurds and the family remaining in Iran were living in very difficult circumstances. She provided medical evidence;

    oIn the same correspondence, the applicant’s former representative sought a waiver of the requirements of PIC 4020 for compassionate or compelling reasons, being that the applicants were stateless and without identity documents from Iran or Iraq and the family members remaining in Iran lived in very difficult circumstances, with insufficient food and difficult labour conditions. She set out the applicant’s fears for her husband and children remaining in Iran and noted the sponsor and her children in Australia were suffering terribly without their father and sisters. She set out that the family’s continued separation was causing mental and emotional distress to the applicants, including the sponsor’s son who had been hospitalised in Australia;

    oThe Departmental file shows that the visa officer referred the correspondence dated 30 January 2017 to other persons within the Department, although their responses are redacted. The file indicates that as a result of the above matters, the applicant was referred to the visa cancellation section.

1. Surprisingly, neither the s.107 notice nor the delegate’s decision to cancel the visa makes any mention of the above matters. The applicant’s representative advises that the applicant’s partner visa was later refused on the basis that the identity documents were bogus. Despite this, the delegate in the current review appears to have proceeded on the basis that the identity documents were genuine and were submitted to the Department as proof of the applicant’s family’s Iranian citizenship. There is nothing on the Department’s cancellation file that indicates the delegate had any other reason to believe the applicant had given incorrect information about her statelessness in her protection visa application.

2. On the basis of the above, I am satisfied the applicant and her husband maintained they were stateless Faili Kurds at all times during their partner visa application.  I am satisfied they repeatedly advised the Department over a number of years that as stateless Faili Kurds they were not entitled to hold Iranian NICs or passports and as a result they were unable to provide the requested documents. That advice was entirely consistent with the basis on which the protection visas had been granted to the applicant and her children resident in Australia.

3. I am satisfied that Departmental officers never substantively responded to the issues raised by the applicants, despite numerous requests for a solution from the applicants and their former representative. Rather, the Department simply continued to renew its requests for Iranian passports and NICs in respect of the family members still resident in Iran, without acknowledging that they were not legally entitled to those documents.

4. Further, I am satisfied the Department specifically advised the applicants that their partner visa application would not be progressed unless they provided the requested identity documents. This is despite the fact that a delegate of the Minister had accepted the applicants were not entitled to such documents in the assessment of the applicant’s protection visa application. It is also apparent that the applicant and her husband sought the Embassy’s assistance in obtaining the requested identity documents, at the same time notifying them again that they were not entitled to those documents. In these circumstances I accept the sworn evidence of the applicant to the effect that the identity documents referred to in the s.107 notice were false documents purchased by her husband in response to the Department’s insistence those documents be produced. As such they are not indicative of their subjects’ Iranian citizenship. Indeed, if the applicants were Iranian citizens there would have been no need to purchase false identity documents.

5. As noted above, it is not in dispute that the applicant and her family members are ethnic Faili Kurds expelled from Iraq. In considering the likelihood of the applicant or her family members having obtained Iranian citizenship at some time since their arrival in Iran, I have had regard to the advice contained in the current DFAT report to the effect that many Faili Kurds of Iraqi origin have applied for Iranian citizenship, however the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and high costs involved[4]. The current advice is consistent with older reports which indicate that while Faili Kurds who could present documentary proof of Iranian ancestry or family links to Iran were able to obtain citizenship, this process was reported to be complicated and to take years, with the documents required to process an application for Iranian citizenship effectively meaning that few, if any, applicants are successful[5].

   [4] DFAT Country Information Report: Iran 7 June 2018 at 3.13 – 3.14

   [5] DIAC Focus Brief Iran: The Situation of Faili Kurd Refugees in Iran 16 December 2009 at p3; DIAC Country Information Service 2010, Country Information Report No. 10/13 – Iran: Faili Kurds, (sourced from DFAT advice of 1 March 2011), 18 March

6. I note also the findings of the delegate who assessed the applicant’s protection claims in January 2011. The delegate found that at interviews the applicant spoke the Kurdish Faili language fluently and was able to discuss her personal details and life experiences in Iran in a coherent, detailed and internally consistent manner. The delegate noted her statements at the refugee assessment interview were consistent with her earlier statements at the entry interview and available country information and accepted she had a genuine and well-founded fear of persecution in Iran.

7. In relation to the apparent discrepancies between the applicant’s statements about her date of birth and marriage and those contained in the identity documents, I note some of the details set out in the s.107 notice appear to be incorrect. The Departmental file does not indicate the applicant completed a Form 866C, rather it appears she made a request for Refugee Status Assessment and completed a Form 80. If at some later time the applicant completed a Form 866C, it is not contained in the Departmental files provided to the Tribunal.

8. Question 7 of the request for Refugee Status Assessment does not relate to her date of birth, rather it asks if she is an unaccompanied minor. In response to question 6 which asks about her date of birth, she states she was born on [date of birth 1] and is [age] years old, not [an older age] as stated in the s.107 notice. Question 14 of the request for Refugee Status Assessment does not ask her about her relationship status, rather it is a question about citizenship. In the Form 80 at question 18 which asks about her partner, she responds by referring to the attachment. In the attachment providing details of her family, she gives details of her parents, husband and children, and states she was married at the age of [age]. Contrary to the information set out in the s.107 notice, she does not state this occurred in [year] or give details as to where the marriage took place.

9. The applicant has consistently stated she has never had a birth certificate but was told her age by her mother. She did not give a date of birth in her entry interview, rather she stated she was [age] years old. In her application for refugee status assessment, she again identified herself as [age] years old and gave a nominal date of birth as [date of birth 1]. On other occasions her date of birth has been recorded by the Department as [date of birth 2] and the marriage certificate provided by her husband states her date of birth is [date of birth 3].

10. I consider these minor inconsistencies are readily explained by the fact that as a stateless Faili Kurd her birth date was never officially recorded, the applicant received no education and is unable to read or write in any language. The dates recorded at various times are likely to have been calculated by other persons who have sought to estimate key dates from information about her life history. I consider the correct dates are simply not known to the applicant or anyone else.

11. The applicant has consistently stated she was married at about age [age]. The marriage certificate provided by her husband appears gives her date of birth as [date of birth 3] and states she was married in [year of marriage 2]. I accept the applicant’s consistent evidence that she was aged about [age] at the time of her marriage which occurred in or about [year of marriage 2]. Given my finding that the applicant’s birth was not officially recorded and is not known to the applicant, I give little weight to the date contained in the marriage certificate.

12. I do not consider that any of the identity documents referred to in the s.107 notice support a conclusion that the applicant or her family members are Iranian citizens, rather I consider the whole of the information before me strongly supports the applicant’s contention that she is stateless as claimed. For these reasons I do not accept the applicant or her family members are Iranian citizens. It follows that I am not satisfied the applicant gave incorrect information to the Department about her country of nationality or her status as a stateless Faili Kurd formerly resident in Iran.

13. Nor am I satisfied the applicant gave incorrect information to the Department in her protection visa application about her date of birth or the place or date of her marriage in the manner set out in the s.107 notice. Rather, it appears to me that the details set out in the s.107 notice are incorrect in the manner set out above. While it is clear that several different dates of birth for the applicant have been recorded at various times I consider her exact date of birth remains unknown.

14. For these reasons, I am not satisfied there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

15. For the reasons set out above and for the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants[6].

    [6]Rani & Ors v MIMA (1997) 80 FCR 379, Tien & Ors v MIMA (1998) 89 FCR 80 at 96, Farah v MIAC [2011] FCA 185.

16. However I note the Department’s Policy Guidelines which relevantly state:

    Set aside of s109 cancellation decisions

    Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.

    The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

17. In view of the Department’s Policy Guidelines, I understand that cancellation of the visas of the second and third named review applicants will be set aside in the same manner as the current cancellation.

    DECISION

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

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)    purports to have been, but was not, issued in respect of the person; or

    (b)    is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)    giving particulars of the possible non‑compliance; and

    (b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)    stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)    setting out the effect of sections 108, 109, 111 and 112; and

    (e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)     requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)    otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)    visas of a stated class; or

    (b)    visa holders in stated circumstances; or

    (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.