1811991 (Refugee)

1811991 (Refugee) [2020] AATA 2243 (19 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811991
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Sean Baker
DATE:19 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 19 March 2020 at 5:21pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground for cancellation – incorrect information in visa application – applicant’s identity – known by another name – date of birth – place of birth – country of citizenship – Iranian national – claimed adverse profile and fear of harm – consideration of discretion – integrity of the visa system – grant of visa based on incorrect information – delay in disclosing correct identity – limited involvement in children’s lives – engaged in employment as an unlawful non-citizen – non-refoulement obligations – best interest of children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 235
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that they found the applicant had not complied with s.101(b) of the Act and that the reasons for cancelling the visa outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
The applicant’s relevant immigration history
The applicant arrived in Australia in August 2010 by boat with his wife and daughter [Child A]. He was found to be owed protection and granted a protection visa on 20 September 2011.
He was issued a series of Notice of Intention to Consider Cancellation (NOICC) to the applicant under section 109 for non-compliance with s 101(b) in September – December 2017. He responded on 27 December 2017. On 17 April 2018 the delegate cancelled the applicant’s protection visa. The applicant then applied for review. The applicant provided a copy of the decision of the delegate to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Section 101 of the Act provides:
101     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.
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) in the following respects:
The finding of the Facial Image Comparison Report is that the images from the Iranian passport for represent the same person [Alias 1] and that which was submitted in your Protection visa application represent the same person indicates that you are an Iranian citizen.
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed that you could not return to Iran due to being a stateless Faili Kurd who was disenfranchised and was denied the protection of the Iranian state. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.
Your possession of an Iranian passport does not support your claims of statelessness and strongly suggests that you are an Iranian national and are recognised as a citizen of Iran. Country information indicates that in order to apply for and be granted an Iranian passport, Iranian nationals must hold precursor documents such as an Iranian birth certificate (Shanesnameh) and National Identity card. Country information advises Iranian birth certificates and Iranian National Identity cards are only issued to Iranian citizens.
Your possession of an Iranian passport does not support your claims of statelessness and strongly suggests that you are an Iranian national and are recognised as a citizen of Iran. Country information indicates that in order to apply for and be granted an Iranian passport, Iranian nationals must hold precursor documents such as an Iranian birth certificate (Shanesnameh) and National Identity card. Country information advises Iranian birth certificates and Iranian National Identity cards are only issued to Iranian citizens.
Country information suggests security checks are undertaken at the passport application stage. Furthermore, country information suggests that it is highly unlikely fraudulent Iranian passports will pass through Tehran airports, as there are stringent checks.
I consider that this contradicts your claim that you are stateless and that you have been denied the rights, documentation and protection afforded to Iranian citizens. I consider that your claim that you face serious harm at the hands of the Iranian authorities is incorrect as this claim was based on you being undocumented and stateless; whereas you are actually an Iranian citizen.
You have stated that you were expelled from Iraq, however as you were born in Iran and are an Iranian citizen I consider that any claims you may have against Iraq are ultimately spurious, as it appears that as an Iranian citizen you are entitled to reside in Iran and therefore any adverse profile that you may hold for Iraq is immaterial.
On the material presently before me, I consider that you have not complied with section 101(b) of the Migration Act in relation to answers provided in your statement of claims declaration dated 29 September 2011 and to the following answers you provided in your Protection visa application:
The applicant responded to the NOICC, maintaining that he was [the applicant] and that he was born in Iraq on [Date 1]. He claimed that the passport was prepared by the people smuggler and that everything he had declared in his statements during interview has been the truth.
A submission was provided prior to the hearing. Attached was a statutory declaration from the applicant made on 26 November 2019 in which he said that his true identity and real name is [Alias 1] and he was born on [Date 2] in Khuzestan, and is not of the Fayli Kurd ethnicity. The name [the applicant] he declared to Australian authorities is false and not correct.He is separated from his wife. He has five children, [Child B], [Child A], [Child C], [Child D] and [Child E]. The children are under the care of their mother and he regularly visits them. There is no record of family violence or intervention order against him. He has [number of] siblings. He states that he is very remorseful that he provided false information and regretful that he did not take the opportunity to provide the truth to the Department when he received the NOICC. He was intimidated and scared by the people smuggler and others who travelled by boat. He was told the only way he could get resettled in Australia was to claim a false identity of stateless Fayli Kurd. He was fooled and feels extremely remorseful and sorry. after he received the cancellation he was also scared as although he is separated from his wife, all his children are here. He has lived in Australia for several years and is a law-abiding community member. He is well-integrated, working as a [Occupation 1]. Two of his five children in Australia are Australian citizens. His other daughter [Child A] has [Medical Condition 1] and [Medical Condition 2]. His children are attached to him and he cannot see a future without them. He has assisted the Australian Federal Police to chase and arrest a people smuggler.
The submission also notes that the applicant accepts he was not stateless and held Iranian citizenship at the time of application for his Protection visa, departed Iran lawfully with his wife, acquired Iranian citizenship at birth, and obtained his Iranian passport by submitting legitimate identity documents to the Iranian authorities.
At the hearing I asked the applicant if he had his Iranian passport with him. He said he did not, as he had thrown it into the sea on his way to Australia.
I asked him his name and he said his correct name is [Alias 1] and his date of birth is [year]. He said he is an Iranian citizen who was born in Iran. He said that he had a Shenasnameh and NIC, which he provided, with translations. I asked if he was Kurdish and he said he was not. I asked if his claimed family had experienced harm in Iran as he claimed and he said they had but not for the reasons he had claimed in his protection application, because the smuggler had not let him explain.
On the basis of the information before me, and in particular his admissions in the pre-hearing statutory declaration and at the hearing, I find that the applicant’s true name is [Alias 1] and he was born in [year] in Khuzestan, Iran, is an Iranian citizen and is not of the Fayli Kurd ethnicity. I find therefore that he gave or provided incorrect answers in his protection application by stating that:
·he was known as [the applicant] born on [Date 1] and was not known by any other names, which is incorrect as he has admitted his true name is [Alias 1] and his date of birth is [Date 2].;
·Stating that he was born in Mahmoodieh, Iraq, which is incorrect as he has admitted he was born in Khuzestan, Iran;
·Stating that his citizenship at birth was ‘stateless’, which is incorrect as he has admitted that he acquired Iranian citizenship at birth;
·Stating that his citizenship at the time of the protection application was ‘stateless’, which is incorrect as at the time of the protection visa application he has admitted that he was an Iranian citizen;
·Stating that he did not hold any other citizenship and was not a national of any other country, which is incorrect because, as admitted, he was at the time of the protection visa application an Iranian citizen;
·Stating that he could not return to Iran because he and his family had suffered harm as undocumented stateless Faili Kurds was incorrect because, as he admitted to the Tribunal, he is not stateless and is not of the Faili Kurd ethnicity, and admitted at the hearing that he and his family did not suffer harm for the reasons he had claimed in his statement attached to his protection application.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
the correct information
The correct information is that the applicant’s true identity is [Alias 1] and his date of birth is [Date 2], not [the applicant] born on [Date 1], that he was born in Khuzestan, Iran, not Iraq; that he had Iranian citizenship and was not stateless, and that he did not fear harm on return to Iran for the reasons claimed as he is not an undocumented stateless Faili Kurd. The applicant conceded this at the hearing.
I consider it of great importance to the integrity of the visa system that applicant’s provide true details of their identity in order for an assessment to be made of their claims, and to allow other assessments such as character and security to occur. I give this significant weight towards the visa being cancelled.
the content of the genuine document (if any)
Not relevant.
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 applicant’s claims were assessed at the time of his application on the basis that he and his family were undocumented stateless Faili Kurds, and his claims that he and his family had suffered harm on this basis. It is clear that that decision was based, in a wholly or large extent, on the incorrect information the applicant supplied. It is imperative to the assessment of protection cases that applicants provide the correct information so that their claims are appropriately assessed and to maintain confidence in the protection assessment process. I therefore give this significant weight towards the visa being cancelled.
the circumstances in which the non-compliance occurred
In his statutory declaration provided prior to the hearing the applicant stated that he was remorseful and regretful, and he had been intimidated and scared by the people smuggler and other people who travelled to Australia on the boat, and was told the only way he could get resettlement in Australia was to claim a false identity of a stateless Faili Kurd. In the submission accompanying this statutory declaration he said that he was advised by the people smuggler on arriving in [Country 1] to make a fake identity to increase his prospects of success, he was delimited in the circulation of gossips and rumours about good chances if claimed to be stateless, was intimidated and scared by the people smuggler and his associates and was highly desperate and in an improper mental condition, and told that if he was removed to Iran he would be at the mercy of the Iranian authorities as a failed asylum seeker, which he claims also intimidated him. he deeply regrets his actions and has now, it is said, made a full admission.
At hearing the applicant said that he had been told by the smuggler not to be truthful. I asked if he had considered at that stage telling the truth. He said the smuggler had not even allowed him to tell the truth, the smuggler has said that if he told the truth the government would not accept the applicant. I asked if, in that case, he had considered disclosing the correct information to the Department at some time prior to the issuing of the NOICC. He said he was going to a few times but he was worried it would make things worse for him, but he got to that level that the AFP told him and he confessed to everything. I asked what he meant and he said roughly two years ago when he went to the Federal Court about the people smuggler he told the truth. He said this started about two years ago and he thought it finished last year. He said that he had some documents but he had thrown others away. I noted that I could place more weight on this claim if he could provide documents to establish this.
I noted to him that I was doubtful of this claim as in his response to the NOICC in December 2017 he had maintained that his name was [the applicant], born in Iraq in [year] and that all of his statements were true. He said he had not told the truth then but in the Federal Court he had told the whole truth. I explained that I needed to weigh up this claim in light of the fact that he had been an opportunity by the Department to tell truth and he had not. He said he had been really scared; there were many times he wanted to tell the truth but didn’t, he had wanted to go back to his family name and identity.
After the hearing the applicant provided a partial statement (only odd pages are provided and the statement is incomplete) he had provided to the AFP, dated 9 May 2015. In this he states that his name is [the applicant], born on [Date 1] in Iran. He has also provided a letter dated 3 October 2017 in which the Commonwealth Director of Public Prosecutions states that the applicant is required to give evidence in the matter of the prosecution of [Mr F] in February 2018.
I have had regard to the submissions. I accept that the applicant was vulnerable when he arrived in Australia, and would have been confused and uncertain about how to deal with Australian authorities. I accept that the people smuggler and others told the applicant to present himself as a stateless Faili Kurd to increase his chances of success. I do not accept however that the applicant was ‘intimidated’ into doing so as he has claimed. He did not detail how the people smuggler had intimidated him, nor does the information before me support that this is what has happened – rather, the submission indicates the applicant was advised to create a fake identity whilst he was still in [Country 1]. At the hearing he said the people smuggler had told him not to be truthful. i do not accept that this evidence indicates any intimidation on the part of the people smuggler or anyone else. The applicant did say that the smuggler had not even allowed him to tell the truth, telling him that if he told the truth the government would not accept the applicant. I accept that the applicant, newly arrived in Australia, would have relied considerably on what the people smuggler told him, but I do not accept that this explains or excuses the decisions the applicant made to misrepresent himself. Nor does the information comfortably sit with this claim that the applicant was taken advantage of and pressured to misrepresent himself by the smuggler –as above, the submission states that he was advised in [Country 1] to make a false identity. I do not accept the applicant’s claim that he was intimidated into lying by the smuggler or anyone else.
I explored with the applicant when he chose to tell the truth. He said that he had wanted to do so but he was worried that it would make things worse for him, and then he confessed everything to the AFP and in the Federal Court he had told the whole truth, even though he had not done so in his response to the NOICC, he had been really scared. In support of this he provided a partial statement that he had provided to the AFP and a letter of having been subpoenaed to appear at court in relation to the people smuggling matter.

I found the applicant’s evidence on this point to be of concern and in particular I am concerned that the applicant has deliberately misrepresented his actions. The statement to the AFP, partial as it is, evidences that the applicant appears to have disclosed to the AFP that he was born in Iran, but he continues to present himself as [the applicant] with his incorrect date of birth. I do not accept, therefore, that he confessed everything to the AFP. The applicant’s evidence about whether he had appeared in court, or given a statement, was also inconsistent throughout the hearing, he said he had been called to go to court but had not, then he said he had gone to court a couple of times, and said he had not given a statement to the police. He could not remember when these events had happened, nor could he remember the names of the police officers he had dealt with. I can find evidence that [Mr F] was charged with people smuggling in 2016,[1] but that article indicates that a range of statements from witnesses across Australia was sought. I note that the applicant has a letter in relation to a subpoena in 2018, but this does not indicate that he was in fact required to appear in court, nor does it indicate that the proceedings against [Mr F] proceeded. The applicant said he did not know what the outcome of the proceedings had been.
[1] [Source deleted]
From the information before me the applicant appears to have been involved in the prosecution only in the most peripheral manner. In considering his partial confession that he was born in Iran in the statement made to the AFP, I have real doubts that the applicant intended this to be a confession – he did not disclose his true name or date of birth – and he did not, at this time or at any other time, disclose this or any other of the true information to the Department. I place greater significance on his response to the NOICC in which he continued to assert his incorrect identity and place of birth, and that his statements (to the Department) were true. I therefore do not accept that the applicant has disclosed to the Department the correct information. He has done so before the Tribunal only, and so this does not lead me to find his claim that he wished to disclose his correct identity and information earlier as credible.
I have carefully considered the claims of the applicant about the circumstances at the time of the non-compliance. Given his actions, and in particular his subsequent actions, I am not persuaded that he provided the incorrect information solely or even largely on the basis that he was scared and intimidated by the smuggler and others on the boat. I consider that the information before me tends to indicate that the applicant chose to misrepresent his identity and claims, over a long period of time, until he came to the Tribunal. I therefore give this factor very little weight in favour of the visa not being cancelled.
the present circumstances of the visa holder
The applicant outlined his family situation. He said that [Ms G] was his ex-wife and he had two children with her, [Child A] and [Child B]. He clarified that they had separated six years ago, they were not divorced. He said [Ms H] was his second wife as you could have more than one partner in Iran. He said he was separated from her too and he just went to see her, as he had four [children] from the marriage to her. He said these were [Child C] and [Child A], who were twins, and [Child I] and [Child E] were born here and were Australian citizens. I asked was [Child A] not [Ms G]’s daughter and he said [Ms G] could not have kids after [Child B] and so when [Ms H] gave birth to twins they gave [Child A] to [Ms G].
The applicant said that he was separated from both his wives. He said that he lived in his brother’s place. I asked if he was working and he said he was before. I asked if he was now and he said he was, as a [Occupation 1]. I asked if he was on a visa that gave him the right to work and he said he had had a permanent visa. I noted that that visa was cancelled though. He said no one had told him anything else. The applicant has provided evidence of tax lodged for the 2019 tax year showing he worked in the 2019 tax year and that he claimed to have a spouse in the tax year.
I noted that the decision record indicated that his visa was cancelled on 17 April 2018. I asked if he had been working all the time since then. He said no, as he had [an injury], but he was working more or less. I asked if he knew what kind of visa he currently held and he said they had not given him one. I asked if he was saying he did not hold a visa and he said he did not, it had been cancelled. I noted that under the law a person who did not hold a visa committed an offence if they worked. He said if he had known that, he would not have worked. I noted that I needed to take this into account. He responded that if he had known he would not have worked and he had disclosed he had worked.
I discussed the applicant’s relationship with his children. He said that his children are really dear to him, [Child A] has been in hospital for 3 years, she has severe depression, and [Child C] is sick as well as they are twins, and that is why he stays at his brother’s house as it is close to them. He takes them out every day, he tries to be around them and spend time with them. He said that he loves his children a lot and whatever he makes he gives to them.
The applicant explained that he had had two wives; his first wife had given birth to his first born son. His second wife had given birth to twins and because his first wife could not have more children they had given her one of the twins.
I noted to the applicant that this seemed a strange family situation and asked him for evidence of his parentage of the five children he claims are his children. The applicant has provided Australian birth certificates for the youngest two children with his claimed second wife.
I have before me brief letters from both of his former wives who state that the applicant visits his children regularly, takes them on outings and is involved in their lives, and in particular that he provides support and assistance to [Child A]. I have a brief letter from a senior child protection practitioner at the Department of Health and Human Services who states that [Child A] is subject to a Family Preservation Order, resides in a residential unit, and is diagnosed with mild [Medical Condition 1], mental health issues and [Medical Condition 2]. It states that [Child A] has regular contact visits with her family members and her father, the applicant, visits her at the unit up to 2 times per week and spends other times with her. I asked the applicant why [Child A] was subject to a Family Preservation Order and he said when she got stressed [Child A] was hitting between walls and doors, and they had to have meetings with child protection. He said it was because of her psychological problems, she had to be under care until she got better, and she hit her mum a couple of times when she got angry. He said that they had a Court hearing soon to see whether she can be in her own home.
I asked if he provided child support to his children. He said for some years they had deduced money for [Child A]. I asked about the other three that were still children and he said that he thought the mum had not applied for it, but he helped them out. He said the mum did not work so they were really depending on him. I noted the letters from his two ex-wives and asked how old [Child A] and [Child C] were. He said they were [age] or [age] years old. I asked how old exactly and he said he thought [age].
He said the children are really attached to him and he cannot tolerate being away from them.
On the basis of the birth certificates of [Child E] and [Child D] and the letters of the mothers, I accept that the applicant is the father of the five children. I accept that [Child E] and [Child D] are Australian citizens. I have some evidence that the applicant is involved in his children’s’ lives despite being separated from his two former wives. This evidence is limited in scope. I have some concerns with whether the applicant has provided the full context of the Family Preservation Order and [Child A]’s care and visiting arrangements. Whilst I accept the applicant has some involvement in his children’s lives, he does not have primary care for them, nor does he appear to provide substantial ongoing financial support. The letter from the child protection practitioner indicates he does have regular contact with [Child A].
The applicant provided clear evidence that he had worked after the cancellation of his visa, and his tax return for the 2019 year supports this. This places the applicant in breach of section 235 of the Act, which provides that it is an offence for an unlawful non-citizen to work. I appreciate that the applicant may not have been aware of this, but I consider that it was incumbent on the applicant to clarify whether he was able to work once his visa had been cancelled.
I have also taken into account the two character reference letters on file from [Mr J] and [Mr K] and the National Crime Check Report.
I have had regard to the current circumstances of the applicant as apparent on the material before me but given his breach of the Act, and the limited evidence of his involvement in his children’s lives, and the brief character references from his ex-wives and two friends, I can give this factor only limited weight in favour of the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant responded to the NOICC. However, as discussed above, he continued in that response to assert the incorrect information of his identity and place of birth. He has however, engaged with the process at the Tribunal and has disclosed the correct information to the Tribunal. I therefore give this some limited weight in favour of the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
No other instances of non-compliance are known. I give this factor no weight.
the time that has elapsed since the non-compliance
The non-compliance took place nine years ago. This is a considerable period of time and the applicant has built a life in Australia. However, I note that the applicant has not taken steps to correct the incorrect information, and that he has perpetuated the provision of the incorrect information as recently as the response to the NOICC. Taking this into account I give this only some limited weight in favour of the visa not being cancelled
any breaches of the law since the non-compliance and the seriousness of those breaches
I have had regard to the Police clearance certificate, which indicated no disclosable outcomes. I have had regard to the applicant’s admission at the hearing, and the evidence of his income tax certificate, that he had worked whilst he did not hold a visa after it was cancelled in April 2018. Under s.235(3) of the Act it is an offence (of strict liability) for an unlawful non-citizen to work. The applicant said that had he known, he would not have worked whilst he did not have a visa.
I note the applicant’s response, but I do not find this satisfactory – the application could have taken steps after his visa was cancelled to clarify whether he could work. The fact this offence is an offence of strict liability indicates the seriousness with which it is considered. I find that there is a strong basis to conclude that the applicant may have committed an offence under s.235, and I give this some weight towards the visa being cancelled.
any contribution made by the holder to the community.
When asked the applicant said that he had just worked and paid his taxes. As above, his work history more recently is deeply problematic. I accept that he has worked and supported himself and contributed to the welfare of his children and paid taxes. I noted his blood donor certificate and he said he had done this a couple of times.
The applicant also pointed to his claimed assistance for the people smuggling prosecution by the AFP. As above, I consider the applicant’s involvement in this, from the information he has put forward, to have been minimal in this case.
I have also had regard to the letters of support from his two ex-wives and his two friends.
The applicant has not been able to demonstrate significant or particularly beneficial contributions he has made to the Australian community.
Having regard to all of the information put forward by the applicant I give this factor only little weight towards the visa not being cancelled.
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.
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
I explained to the applicant that as he had admitted to being an Iranian national I may take the view that he had or could obtain an Iranian travel document and return to Iran, and may assess the chance of him being detained, and detained indefinitely as low. He responded that despite the fact that the government had his children, he is the father and has to look after them and be with them. He said also that the smuggler had made threats that there will be a danger against him if he goes back, and the smugglers whole family is there.
I noted to him that if his protection visa remained cancelled, there would be only a very limited range of visas he could apply for, but I may consider this the function of the legislation. He responded that the smuggler had misled him, why should he lie about that.
I have had regard to the applicant’s responses. I consider that the applicant, an Iranian national, who has admitted to departing Iran lawfully, would be able to obtain an Iranian travel document and return there. I therefore consider his chances of detention or indefinite detention to be low and a less likely consequence of the cancellation. The operation of the Act will bar the applicant from making a further protection visa application and there will be only a very limited range of visas he will be able to apply for. This is, I consider, the intended operation of the Act.
I have considered the circumstances of the applicant and I place very little weight on this factor in favour of the visa not being cancelled.
whether there would be consequential cancellations under s.140
I asked the applicant if either of his ex-wives or his children had held their visas as a consequence of him holding his visa. He did not appear to know the answer. I asked if their visas had been cancelled and he said they had not, their visas are still in place. I find that, on the information before me, the applicant’s ex-wives and children’s visas were not consequential on the applicant’s visa and have not been cancelled consequentially.
Taking this information into account I give this factor no weight.
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.
I noted at the hearing that there were two aspects to this factor – whether he would be harmed on return to Iran such that this would engage Australia’s protection obligations, and whether family unity and the best interests of the child were engaged.
Turning to the first claim. The applicant admitted at the hearing that the reasons he had claimed to fear harm and discrimination on return to Iran in his protection application were not true so far as they related to his untruthful claim to be stateless Faili Kurd.
He said that he had a problem with religion for many years, he was hating religion and talking openly in the company and could not stop himself. That was why he was considered a bad person, he had to pray and fast, and then they sacked him from the company, then he went and rented a small shop, but they did not let him be there either. Then they burnt down his shop, and then he went on the side of the road and started work as a street vendor. In 2007/2008, there were a lot of bad conducts and bad attitude and he was not free to do anything. He thought he better go to Australia where no one has any reason to do with religion.
I asked if he had had trouble subsisting in Iran before he left (as claimed in his claim for protection). He said he had had a problem with the police, with the authorities, about going to jail, he had left Iran when on bail. He said he had a problem with the government and the smuggler all at once.
I asked him to explain what he had been on bail for. He said that he was arrested a number of times because he protested against religion, and on the last occasion they said he had to make bail or go to prison. Then he came out of the court house and managed to get a forged title by paying some money and with that forged title he managed to leave the country. I asked what this forged title was and he said it was a house title.
I asked if he had any documents to establish that he was bailed. He said that they do not give anything to you as it is actually illegal to do so. I asked if he had any documents to establish he had been charged with an offence in Iran. He said it was there but how was he supposed to get it.
I asked him what the charges against him had been. He said they had asked him why he was disrespecting religion and harming children in the name of religion, and saying he had to be a Muslim and do whatever and he could not submit to that. I asked if he knew what the actual charges against him were and he said disrespecting religion and religious authority. He said that the punishment in Iran for this is either long term prison or execution or a lot of things. I asked when he had been charged and he said 7-8 months before he came to Australia. He said that even when you are bailed the court still comes after you and no one knows what happens, and he left the country in that time. I asked if he had been jailed previously and he said no but he had been detained before because of this, 4-5 times he had been detained by the police, Basij and other authorities. I asked him which other authorities and he said all the authorities can arrest you, the police and Basij. I asked why he had been detained these 4-5 times and he said he was defending people in protest, once this girl and guy were being pulled into a van and he tried to stop them, he was detained twice for drinking water during Ramadan. Once during Ashurah he tried to defend a child beating himself and then the applicant was beaten up.
I noted to the applicant that it seemed strange that if he had indeed been facing religiously motivated charges in Iran and had departed whilst on bail that he had not said something about this when he arrived in Australia. He responded that the people smuggler had not let him say it. He said this was why he had left the country, not for being a Faili Kurd. Then in the people smuggler had misled him and diverted him from this problem.
I asked if there were any other reasons he feared harm on return to Iran. He said that the smuggler had threatened him a number of times. I asked when he had been threatened and he said that around the time he was going to the Court, he was getting anonymous phone calls with no numbers. He said the smugglers do anything they want.

I asked if there was any other reason he thought he would be harmed on return to Iran. He said there was not, only that he would be jailed and harmed by the smuggler or his family.
I raised with the applicant the concern that he had not told the truth in the past in relation to his identity and claims for leaving Iran, so I may have doubts that these events occurred and this might lead me to doubt that these claims are true. he responded that if he had told the truth back in 2010 he might have been accepted, now it was 10 years past that story.
I spoke with the applicant about the rights of the child to know their parents if possible and the best interests of the child. The applicant said that his children are very dear to him. I raised the principle of family unity. As above, the applicant said that he provided some support for his children, that they lived with their mothers except [Child A] who is subject to a Family Preservation Order and resides in a residential unit. I noted the letters from the mothers of his children saying that he supported them and visited regularly.
Non-refoulement
Australia has obligations under the Refugees Convention and Protocol, as well as other international treaties not to return a person to a country where they will face particular forms of harm, that is removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.[2] These obligations are wider than the obligations set out in s.36 of the Act.
[2] Non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.
I have considered carefully whether the applicant will be harmed on return to Iran. In making this assessment I have had regard to a consideration of the above instruments and I have also had regard to the Department policy on Australia’s non refoulement obligations.
In this case, I find the applicant to lack credibility when making his claims to fear harm. He did not make these claims when he applied for protection in 2010. I do not accept his explanation that this was because the smuggler did not let him. I have found above that the applicant was not intimidated, nor do I accept his will could have been overborne. If the applicant had indeed left Iran subject to court proceedings whilst on bail for religious based offences, I do not accept that he would not have made these claims in 2010. I do not accept that he would not have made these claims instead of the claims he now says were bogus about he and his family being undocumented stateless faili kurds who suffered discrimination and difficulties with employment and education. At the hearing before me the applicant provided a narrative which, I consider, he and the smuggler would have been aware was more compelling than his bogus claims. But even if this was not the case, I do not accept that he would not have worked in his rejection of religion, detentions, and arrest and bail into his claims to be an undocumented stateless Faili kurd. I consider the fact that he did not to lead me to doubt these claims. I also note that whilst not complete, his statement to the AFP that he provided after the hearing makes no mention of these matters. I have placed considerable weight in my assessment on the willingness of the applicant to provide a false identity, place of birth, family narrative, and claims to fear harm on return in 2010. Given all of these concerns, I find the applicant to lack any credibility when making these claims.
On this basis, I do not accept that the applicant had a problem with religion in Iran for any reason, I do not accept that he was hating religion and talking openly in the company and could not stop himself. I do not accept that he was considered a bad person for this reason, nor that, if he was sacked from his employment, it was for any reason to do with this. I do not accept that his shop was burnt down for any reason to do with this. I do not accept that in 2007/2008, there were a lot of bad conducts and bad attitude and he was not free to do anything. I do not accept that this is the reason he decided to travel to Australia. I do not accept that the applicant had a problem with the police or other authorities relating to religion. I do not accept that he was charged and bailed for any reason connected to religion. I do not accept that he was detained on any occasions for religious reasons. I do not accept that he engaged in any of the conduct he has claimed which led to him being detained. I do not accept that he had to acquire a forged house title to depart Iran.
I have considered the applicant’s claims that he fears harm from the smuggler or from people connected to the smuggler. He has claimed that the anonymous dob-in was the smuggler, but given my credibility findings, I can have no confidence that this is indeed the case. I have placed greater weight on my view that the case against the smuggler appeared to be based on testimony on a large number of people in the same position as the applicant, that there is information about the charging of the smuggler, but that even with the letter and statement of the applicant to the AFP it is not established that the applicant gave evidence against in court, nor that the smuggler has been convicted on the basis of this evidence. Taking into account my credibility concerns in relation to the applicant and his claims about returning to Iran, I do not accept that there is any real chance or real risk that the smuggler, or his family or associates, would harm the applicant if the applicant were returned to Iran.
I consider that the applicant can return to Iran as an Iranian national, who can gain an Iranian travel document and who, having departed lawfully, will be able to return with no prospect of being charged or harmed for reasons of his departure or for any other reason evident on the material before me. Having weighed all of the information before me, I find that there is no real chance or real risk that the applicant will be harmed on return to Iran for any reason connected to his religion claims, on the basis of his evidence against the people smuggler, or for any other reason.
I therefore give this part of the factor no weight in favour of the visa not being cancelled.
The rights of the child and family unity
Australia has obligations under the Convention on the Rights of the Child 1989 and the International Covenant on Civil and Political Rights in relation to children and the family.
I have had regard to the best interests of the child, which is to be treated as a primary consideration. It has often been noted that this is not to be read as this being the primary consideration. I have also had regard to the principle of family unity and the right of the child as far as possible to know their parents.
I have had regard to the evidence provide. As above, there is limited evidence of the applicant’s involvement in his children’s lives, and of their dependence on him. I note in particular that it has not been his evidence that they live with him, but with their mothers, or in [Child A]’s case in accommodation. I am also concerned that he has not been entirely forthcoming about the circumstances surrounding [Child A]’s situation. However, taking into account the letters, though brief, from the mothers of his children, I accept that the removal of the applicant from Australia to Iran would cause some level of hardship to his children and would not be in their best interests. I note that he is separated from both of the mothers of the children, but I also note that the children have a right to know their parents, where possible. I accept that if he is returned to Iran, the children and their mothers would remain in Australia. Having regard to these considerations, I give this part of the factor significant weight in favour of the visa not being cancelled.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
I asked the applicant if there were any other relevant matters. He said that the separation from his children would be very difficult.
I put to the applicant pursuant to s.424AA several pieces of information. The first piece of information was that the Department had information that [Mr L], who had also travelled to Australia with his family, is the applicant’s brother, and he and his family had initially claimed to be stateless Failli Kurds but recanted this and provided documents to the department that proved they are Iranian citizens. I explained the relevance of this information was that it may indicate that the information he provided in his protection application is incorrect, and therefore that there is a ground for cancellation. It may lead to the tribunal having concerns about the applicant’s general credibility. I explained the consequence.
I put to the applicant the second set of information was that an anonymous dob in had been received from the Department in February 2017 which alleged that he and his brother and female partner had hidden their real identities to seek asylum in Australia, that they had been engaged in criminality in Iran and may be engaged in criminality in Australia, that he had spent time in jail in Iran for dealing drugs, and provided a copy of the applicant’s alleged passport, which the Department then did a photo analysis on. The details of the brother and female partner were also provided in the allegation. I explained the relevance of this information was that it may indicate that the information he provided in his protection application is incorrect, and therefore that there is a ground for cancellation. It may lead me to have doubts about his claimed reasons for not wanting to return to Iran. It may lead to the tribunal having concerns about the applicant’s general credibility. I explained the consequence.
The applicant responded to the first set of information saying that he had conceded this.
He responded to the second set of information by saying that this was the payback of the smuggler against him as he had testified against the smuggler. He said he had never been into crime and drugs and he never would be. He said he had not been jailed for six years in Iran as claimed, he had never been to prison.
Further information was put to the applicant but this was clarified by the applicant and I give this no weight in making my decision or the assessment of weight to the various factors above.
The applicant’s representative submitted that they could provide some information from the Federal Police investigation, that they could provide [Child D] and [Child E]’s birth certificates. He said they would see if they could get information from Iran but it had been a long time.
After the hearing the applicant provided some limited documentation.
I have accepted his evidence on the first set of information put to him. I have had regard to his evidence on the second set of information. I am unconvinced that this information was provided by the smuggler, there is not enough information in the dob-in to arrive at this conclusion. I have had regard that a copy of the applicant’s passport was supplied and that the smuggler may have had access to this, but I note that others, such as family members or acquaintances or associates of the applicant may have had access to this. I have not given the dob-in any weight because I cannot determine who made the dob-in, their motivations for doing so, and therefore whether the information is correct. I place no weight on this information.
I have carefully weighed the factors above. The applicant has provided scant information, despite me urging him to do so, to fully substantiate his claims. At hearing he was unable to provide a great deal of information. I have carefully considered the situation of his children and his claimed relationship with them carefully. But I find despite accepting some level of relationship that concerns still remain, including the situation in relation to [Child A], and the level of financial or other support he provides to the children. I accept that if he is removed from Australia, the children may suffer a significant loss, but I also do not accept that he is so integral to their lives and care that this loss will be severe. I have not accepted his claims to fear harm on return to Iran. Balanced against this is the applicant’s willingness to lie in his original application and again when responding to the NOICC. He has continued to display a disregard for immigration laws by working, an offence. Having weighed the factors above, I find that the factors towards cancellation outweigh those against.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Sean Baker
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.

[2020] AATA 2243

19 March 2020

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