1823877 (Refugee)

1823877 (Refugee) [2020] AATA 664 (22 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823877
COUNTRY OF REFERENCE:                   Iran
MEMBER:John Cipolla
DATE:22 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 22 January 2020 at 4:22pm
CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – nationality – not stateless Faili Kurd but Kurdish Iranian citizen – documentation possessed by brother – religion – non-believer of Islamic background – discretion to cancel visa – factors for and against – harassment in community and by Basij, imprisonment of brother – advised by people smuggler and interpreter to provide incorrect information – initial denial of correct information for benefit of sister and sick niece – serious car accident and continuing treatment – anti-government activity online – family, community and business ties – wife on a bridging visa and one child an Australian citizen – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
COT15 v Minister for Immigration and Border Protection (No 1) (2015) FCAFC 190
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 applicant annexed a copy of the Departmental decision record to the review application lodged with the Tribunal.
Recourse to the decision record indicates that the applicant arrived in Australia and was transported to Christmas Island [in] November 2009. On 17 March 2010 the applicant submitted an application for a Protection (Class XA) visa. On 19 March 2010, some 2 days later, the applicant was granted protection at the primary stage on the basis of being a stateless Faili Kurd.
In a Notice of Intention to Consider Cancellation (NOICC) issued under s.107 of the Act dated 14 November 2017, close to 8 years after the grant of permanent residence, a delegate of the Minister informed the applicant that she considered that the applicant had not complied with s.101(b) of the Act in that he had provided incorrect information in his visa application as to his statelessness, citizenship and country of nationality and his fear of persecution in Iran as a stateless Faili Kurd.
On 13 August 2018, a delegate of the Minister cancelled the applicant’s visa and the applicant applied to this Tribunal for a review of the decision.
ISSUES IN REVIEW
The issues in the review are whether there was non-compliance in the way described in the NOICC sent to the applicant, and if so, whether the visa should be cancelled. A summary of the relevant law is set out in Attachment A.
THE SECTION 107 NOTICE
On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 14 November 2017 advising the applicant’s visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) (visa applications to be correct) of the Migration Act. The NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a Protection visa on 14 January 2010.
The NOICC advised the applicant that evidence held by the Department indicated that the applicant’s brother Mr [A] DOB [Date 1] possessed an Iranian Birth Certificate and an Iranian National Identity Card when he arrived in Australia. The NOICC indicated that only Iranian citizens are issued with Iranian Birth Certificates and National Identity Cards. The NOICC notes that as a result of this evidence the applicant’s brother was an Iranian citizen when he arrived in Australia as an Illegal Maritime Arrival [in] February 2000. The NOICC also notes that the applicant’s brother was in Australia when the applicant arrived in Australia illegally [in] November 2009 and when the applicant applied for and was granted a protection visa. Evidence since provided at review indicates this was incorrect as the applicant’s brother was overseas at the time of the applicant’s arrival in Australia.
In an identity interview conducted with the Department on 30 June 2015 the applicant acknowledged that [Mr A] was in fact his brother. The NOICC noted that the applicant’s brother was born in [Year 1] and claimed to have the same father as the applicant. The NOICC noted that Iranian citizenship is passed down via the paternal line. The Department concluded that it followed that the applicant was not a stateless Faili Kurd as claimed in his protection visa application when he arrived in Australia but was in fact an Iranian citizen that enjoyed the rights and protections afforded Iranian citizens in Iran.
For the purposes of this review the Tribunal summonsed the protection file of the applicant’s brother [Mr A] file [number]. The Tribunal had regard to the applicant’s brother’s statement lodged with the Department to support his claims for protection which is dated 7 July 2000 and found at folio 33 of that file.
The statement commences with Mr [A] advising that:
“I was born in Baghdad, Iraq. I am a Faili Kurd and a Shi’a Muslim. I am not married. I am [age] years of age. I believe that I am an Iranian citizen because I have an Iranian birth certificate. I have not applied for any official documents, such as a passport. I have not attended military service.
In 1979 the Iraqi government put pressure on Faili Kurds to leave Iraq My family were given one week to leave the country. My parents explained that our family and some other families hired a vehicle. We drove to the Iraqi/Iran border. My paternal uncle who had gone to Iran before us met us at the border. We were taken to a camp. A few months later my paternal uncle sponsored us from the camp. He took us to Eelam to live.
We settled in Eelam. As my mother wore Iraqi traditional clothes the community knew that we were deported from Iraq. The family was then harassed and this caused anxiety for me as I was growing up. My father could not find employment because we were discriminated against. We were discriminated against because of the growing hostility that developed as a result of the ongoing war (Iraq/Iran). The people did not realise that we were not Iraqi we are Faili Kurds and we are not accepted by anyone. One day I went to buy bread with my mother. There was an Iranian family in the shop. The Iranian woman grabbed my mother chador and said “you filthy Iraqi are to blame for the death of my son.”
Access to the applicant’s brother’s Departmental file indicates that the applicant in his application for protection and in his associated statement gave a largely consistent account of his family’s circumstances in Iran. The major differential was that the applicant’s brother advised the Department in his statement in 2000 that he believed that he was an Iranian citizen because he possessed an Iranian birth certificate but had no other official documents, whereas the applicant advised that he was a stateless Faili Kurd who did not possess any official documentation issued by the Iranian authorities. This was not correct.
In his claims for protection the applicant’s brother outlined instances where he had been targeted by the Basij for being found in a house with alcohol and a prostitute. He was targeted again when he formed a serious relationship with an Iranian woman [and] when her family found out he was born in Iraq the Basij once again threatened him. These claims were accepted by the delegate and found to be credible and supported by independent country information. The applicant also describes in his claims for protection being targeted by the Basij in Iran because of his ethnicity.
The Tribunal notes that the delegate approved the applicant’s brothers protection visa at primary stage and in his reasons for decision noted that:
“Although the applicant was not able to provide documentary evidence in support of his claims, his explanations regarding the reasons why his family was forced to leave Iraq for Iran in 1979 and why he decided to leave Iran in early 2000 were plausible, acceptable and consistent with the available country information on Iran as well as Iraq. Further evidence supporting the applicant’s claim is his knowledge of recent history regarding the Kurdish people, his knowledge and description of recent events in Iran and Iraq and how they related to him, as well as his facility with Farsi and Kurdish. At interview the applicants relating of his family history was credible. I have considered the applicant’s claims together with the independent material which supports his claims and I accept that he and his family were originally from Iraq and were forced to leave their home country in the manner that he has described. I accept the independent material quoted below and find that the applicant and his family were Iraqi citizens although they were put in the position of having to leave that country.”
The NOICC particularised the evidence of non-compliance with section 101 of the Migration Act by the applicant. The delegate concluding that the applicant had provided incorrect information to the Department to questions 19, 20, 22, 23, 42, 43, 44, 45, 46, and 50 in his Subclass 866 application form. The delegate went on to note that the applicant had not complied with the requirements of section 101(b) of the Act namely that a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.
The applicant responded to the NOICC by way of submissions. In an initial response dated 26 November 2017 the applicant stated that “as far as I am aware, me and my family are stateless and do not have the citizenship of any country nor have the right to obtain such privilege. I have never held any Iranian identity documents and not been given the rights of an Iranian citizen by the authorities.” The applicant then goes on to claim that he was unaware of the documents that were in his older brother’s possession and that he had not seen any formal Iranian identification ever held by members of his family. The applicant stated that due to family reasons he had not had any contact with his brother for the past two years. The applicant stated that at the time of his entry interview in 2010 he mentioned that he did not have any family members in Australia and this was due to the fact that his brother was not residing in Australia at that time and did not have any intention to return to Australia. Indeed the applicant claims that his older brother had left Australia and decided to live overseas for business reasons. The applicant stated that he learnt that his brother returned to Australia a few weeks before the applicant was released from detention and that he was unaware of his presence in the country. The applicant claims that he informed the Department of his brother’s return to Australia as soon as he was made aware of this fact. In a follow up letter dated 21 December 2017 the applicant advised the Department that he did in fact have Iranian nationality and had not initially disclosed this as his sister, who was in Australia had a very sick child who would not survive if she was returned to Iran.
The Tribunal notes that the applicant was born in [Year 2] and his older brother [Mr A] was born in [Year 1] a difference of [number] years and that based on the evidence before it the applicant would have been [a young] age when his brother left Iran and travelled to Australia in 2000.
The applicant provided a range of reasons for not cancelling his visa. The applicant stated that he had been living in Australia for seven years at that point in time and had established a life in Australia for himself and his family. The applicant advised that he was married in 2015 and that he had a daughter who had been born in Australia and held Australian citizenship and that he was hoping that his daughter could be raised in Australia. The applicant stated that he did not have any criminal history in Australia and had established strong personal and business relationships in Australia. The applicant stated that in 2016 he had a major car accident in which he was not at fault and had been experiencing ongoing physical and psychological treatment for his injuries. The applicant stated that the accident had a huge impact on his life and the applicant attached medical documentation pertaining to his current diagnosis and treatments. The applicant stated that he had become a non-believer since he arrived in Australia and does not believe in Islam or its values anymore. The applicant stated that a number of people are aware of his abandonment of Islam and he feared both state and familial persecution because of this if he was returned to Iran. The applicant had also been extensively involved in anti-government blogging about the Islamic regime in Iran.
The applicant provided copies of incoming and outgoing passenger cards for his brother [Mr A] DOB [Date 1]. The Tribunal notes that the spelling of the applicants surname appears to have variations which may be attributable to interpreter spelling of the surname. The applicant’s letter of 26 November 2017 is signed [Spelling 1]. The incoming passenger card for the applicant’s older brother is, as noted, spelt [deleted] and the spelling of the applicants surname on the Departmental cancellation file is spelt [Spelling 2]. The Tribunal notes that the applicant brother’s date of birth is noted in other documents as being [Date 1]. The outgoing passenger card departure information shows he departed Australia for [Country 1] via [Country 2] [in] September 2009 and the incoming passenger card shows a return date from [Country 1] dated [December] 2009. These documents which were obtained from the Department indicate that the applicant’s brother was as noted above not in Australia at the time of the applicant’s arrival [in] November 2009.
The applicant provided a letter from the [transport authority] of [State 1] which is dated [September] 2016 advising the applicant that the [transport authority] would pay the reasonable costs of his medical treatment and other services as a result of his “transport accident injuries.”
The applicant also provided a letter from [a] Rehabilitation Specialist and Pain Fellow dated [October] 2017 indicating that the applicant was suffering with post- traumatic stress disorder and mental health issues as the result of a significant motor traffic incident. The report also makes reference to the significant limitations that the applicant would experience in returning to work as a result of the injuries he sustained in a car accident.
The applicant also provided a certified copy of a travel document for his older brother [Mr A] date of birth [Date 1] which notes his nationality as being “stateless”.
The applicant also provided a document “Application for Conferral of Australian Citizenship” which indicates that the applicant’s brother when applying for citizenship stated that he was born in Baghdad Iraq, that he was a citizen of Iraq and that his previous country of residence was Iran.
The applicant provided a further statement to the Department dated 14 July 2018.
The applicant in this submission states that:
I left Iran and began my journey to Australia in 2010. At the time, my friends and the smuggler told me for being accepted to the country you need to hide your identity. As I was unaware of the rules and I was so scared I accepted the fact and I did not mean to deceive the Australian government. I just wanted to be accepted and live in Australia for the rest of my life. However, I was going to tell the truth but my sister stopped me because of some issues she had. Then after a while she realised it’s better to be loyal. Even when I was in detention centre I asked one of the interpreters to see if I can tell that my brother is living in Australia but the interpreter whispered that ‘you need to shut up’. After hearing all of that from my friends, family, interpreters then I told myself that it might be something wrong with telling the truth, I was really scared and confused. My problems began when my brother has changed his religion to Bahai. We have been excluded and rejected from our family and relatives. As I said I am from a Kurdish background however I do have identity. Even though with my Iranian citizenship I have had I still was persecuted by the government. What I said about Basij before in my previous interviews are all precise. These things happen in Iran all the time. All people in the world know and they are all over the news. They know the Iranian government and their persecution. Returning me back to Iran will put my life at risk. As I explained before I have had co-operation with Federal police a few years ago in regarding to recognise two smugglers. I have been told that my name will be secure from spreading however that did not happen and my name spread and this is a big risk for me. Throughout the period of living in Australia I was using offensive language against government and Islamic religious organs on their official Instagram pages. The proof I have screenshots of them all and I have attached a copy of them. I even have more on my [Social media] account. In this situation I cannot live in any Muslim country. At the first years of moving to Australia I was attending Bahai religion sessions. Many people in Iran including family and friends are aware of the fact because my brother has changed his religion and this will put the life of me and my family at a great risk. The Iranian regime considers non-believers as infidels and should I be returned back to Iran I will be persecuted by the Iranian authorities. In 2016, I had a major car accident and I have been under ongoing physical and psychological treatments for my injuries. This accident has greatly affected my life and I am still recuperating from my injuries. I have attached my medical documents to this letter which outlined the details of my current diagnosis and treatments. I wish that I can recover quickly so I can continue working. Furthermore, I cannot ever imagine that my daughter be raised in a Muslim country. I prefer to die and I am willing to do anything to raise my daughter in Australia. Iran is a country that even a simple thing, like dancing, is a serious crime. Poor girls living in Iran cannot even wear bright clothing. A girl named ‘Maedeh’ has been sentenced for years of jail and 80 lashes only because she was dancing on Instagram. Iranian government are all well known in the world about how they treat their people. Then you can imagine how they are going to treat me as a betrayer in their point of view. In addition, Australia was the best country that I could ever imagine of. The government really helped me with establishing my life that I will never forget. I wish that never war happen in Australia but if there is any, I will be one of the first persons to help defending Australia. After all I can say that I am so integrated and I wish you can forgive me. Unfortunately, I did not have enough time to get in touch with the lawyer to help me with writing this letter. It would be appreciated if you can please organise a time so I can explain everything more.”

With regards to the reasons for not cancelling his visa of the applicant in his submission to the Department dated 14 July 2018 stated as follows:
“I have been living in Australia for nearly 7 years and established a life for me and my family. I got married two years ago and I have a newborn child and we are hoping to raise her in Australia.
I have not had any criminal record since arriving in Australia and have a great deal of respect for the rule of law and the norms of the society. I respect Australian values and despite not having the formal citizenship, I consider myself and my family as members of the Australian Society. In the last seven years, I have established strong personal and business relationships with various members of the community and being able to settle in and create a peaceful life of me and my family in [City 1]. I have become a nonbeliever since I have arrived in Australia and I do not believe in Islam and its values anymore. However, I am yet to choose a new religion which is close to my personal beliefs and ideas.
Furthermore, I have been told the Iranian authorities had been made aware of my refugee status in Iran and regardless of my status as a non-Iranian I will be severely interrogated and prosecuted by the authorities for seeking asylum from Western country upon returning to Iran.
I believe cancelling my visa will be unjust and be a disadvantage to me and my family, I have been truthful throughout the process of my protection visa application and all my answers to the entry interview questions have been correct based on the events at the time.”
The applicant also provided a document from [a named person] which is undated. The document is a statement indicating that the applicant had attended a Bahai teaching group during 2010.
The applicant also provided a report from Dr [B] a psychiatrist dated [July] 2018. The report indicates that the applicant was receiving treatment for a major depressive disorder along with post-traumatic stress disorder that had arisen in the context of chronic pain following the applicant’s motor vehicle accident in September 2016. The report notes that at that point in time the applicant was receiving antidepressant therapy in conjunction with pain management. Dr [B] notes that the applicant experiences significant stress managing his pain, its associated physical restrictions and the impact on the applicant and his family in terms of the applicant’s employment, finances, and contribution to parenting. Dr [B] notes that the immigration process that the applicant had been subjected to was causing the applicant fear and stress which he described as “immense.”
PRE HEARING SUBMISSIONS
The Tribunal received updated statements and a legal submission in advance of the review hearing.
The Tribunal received an updated statement from the applicant which is replicated in full below:
I make this Statutory Declaration in support of my application before the Administrative Appeals Tribunal. I ask that the Tribunal make a decision to not cancel my protection (subclass 866) visa.
On 13 August 2018, my protection visa was cancelled by the Department of Home Affairs because I provided incorrect answers in my protection visa application.
I am very sorry for providing incorrect answers to the Department. I wish that I can go back in time and change what I did. I am ashamed of myself and I am embarrassed by my actions.
I declare that I have read the legal submission prepared on my behalf by my legal representative. I confirm that the information in the legal submission is true and correct.
Background
On [Date 2], I was born in [Location], Tehran, Iran. I am [age] years old. I am a Kurd. I do not believe in any religion at present.
In Iran, I completed education equivalent to grade [number]. I did not complete my high school education. I then worked.
In 2009, I travelled to Australia by boat because I feared for my life in Iran. I applied for a protection visa and this was granted on 17 March 2010.
My [dad], my [sister] and my [brother], remain in Iran. My step-mother, also lives in Iran. My brother [Mr A] and my sisters [Ms C and Ms D] live in Australia.
I am married to [Ms E]. [Ms E] is [age] years old. She was born on [Date]. [Ms E] travelled to Australia with her family and applied for a protection visa. She is on a bridging visa E. [Ms E] and her family are in Australia because they are scared that they will be harmed in Iran.
[Ms E] and I have two young children together. [Child 1] is our daughter and [Child 2] is our son. [Child 1] was born on [Date] and is almost [age]. [Child 2] was born on [Date] and is [age].
After I was granted a protection visa, I worked in a [workplace 1] as [an Occupation 1], I worked as [an Occupation 2] and I worked in a [workplace 2]. I worked hard to support myself and my family.
In September 2016, I was involved in a car accident. I suffered physical and psychological injuries. I continue to receive treatment for my injuries. I am currently unemployed.
Incorrect Answers
When I first travelled to Australia and applied for a protection visa in 2010, in my protection visa application, I claimed that I feared harm in Iran because I am a Faili Kurd and because I am stateless. I continued to claim that I was stateless and a Faili Kurd. When I was first confronted with information held by the Department that I was not stateless, I did not immediately admit that I was not stateless. I was terrified that I would be sent back to Iran where I would be killed and or seriously harmed. I was also very worried that my sister's application would be negatively affected such that she would be forced to return to Iran where her young daughter's life would be jeopardised. I am very, very, sorry for this.
The correct information is that I am an Iranian Citizen and I am of Kurdish ethnicity. I am not stateless, and I am not a Faili Kurd. I recognise that by stating that I was stateless and a Faili Kurd, I provided wrong information to the Department.
I am deeply sorry for providing incorrect information to the Department. I regret my behaviour and I am aware of the seriousness of what I have done.
I will never again provide incorrect information to the Department or any other governmental or non-governmental agency. Not only am I aware of the serious consequences associated with doing so, I have no reason to provide incorrect information in the future.
Why I provided Incorrect Answers
Although I am not stateless, it is true that I fear that I will be harmed, ifl return to Iran.
I am a Kurd. Despite being an Iranian Citizen, I was treated as ifl am not a citizen because of my ethnicity. My rights and freedoms were not respected. This is because in Iran, the Government and Persian Iranians do not want Kurds to be in the country. It is difficult to obtain employment and Kurds are targeted by the Basij. I was targeted and mistreated by the Basij. I was arrested and beaten by the Basij because I was caught with my girlfriend. On another occasion, my friend and I were stopped and detained by the Basij because we were drinking alcohol. I know that ifI am forced to return to Iran, I would be seriously harmed or killed.
When I first made arrangements to leave Iran, I intended to seek protection in Australia on the basis of my treatment because of my ethnicity - that I am a Kurd. When I arrived in [Country 3], I was warned by the people smugglers that I would be immediately returned to Iran if I did not say that I was stateless. When I was in detention at Christmas Island Immigration Detention Centre, my friends told me the same thing and that I had to say that I was a Faili Kurd if I wanted to be protected in Australia.
Further, during my interview with the Department, when I disclosed that my brother was in Australia, the interpreter told me not to say that.
Although I make no excuses for my poor judgment, I was terrified. I was terrified that if I was returned to Iran, I would have no life because my freedom would be disregarded and because I would be seriously harmed and eventually killed.
After I was confronted with information from the Department that they had information that suggested that I was not stateless, I did not immediately admit that I was indeed not stateless.
At the time, my sister, [Ms C] was in Australia. She too, travelled to Australia via boat and claimed that she was stateless. At the time, our family was experiencing extreme hardship and I feared that if I admitted that I was an Iranian Citizen, her visa would be impacted, and she would be returned to Iran with her young family.
My sister's daughter, my young niece, had been diagnosed with [medical conditions]. She was very sick and needed many doctor appointments and medication because of her recurrent infections. If my sister was returned to Iran with her family, my sister and I were scared that my niece would die because she would not have access to the medical treatment she needed.
I am very sorry for the incorrect answers that I have provided to the Department. Now that the Department is aware that my sister and I are not stateless, I have nothing to hide and will never again provide incorrect information to anyone.
My Wife
My wife and I have a strong and loving marriage. We have been married for almost five (5) years.
My wife and I want to grow old together and want to spend the rest of our lives together.
My wife provides me with physical and emotional support. When my health deteriorated after my car accident, my wife never left my side. She cooked, cleaned and ensured that I was comfortable. When I am anxious and am having a very bad day, she always tries to cheer me up, plan activities and encourages me to remain positive. She also accompanies me to my medical appointments.
When I am feeling ok, I try to help my wife care for the children. I am always there for my wife. We have a relationship that is based on respect and trust that we confide in each other.
If my visa is cancelled and I must return to Iran, I will be separated from my wife and children. This is because my wife is fearful of returning to Iran. My wife is a dependant applicant on her parent's application. She currently holds a bridging visa E.
My Children
My children are my entire life.
I want to witness all of their developmental milestones, I want to be physically present to care for them, help them and celebrate and share important moments in their life.
I want my children to have the best life- one that is full of opportunity, joy, success and safety. I want to be present for my children's primary, high school and university graduations. I want to watch them grow and provide them with advice.
If my children live in Iran, they will have limited rights. They will not have access to the same educational opportunities, the same health care standards and respect for human rights in Iran. My children will suffer.
If my visa is cancelled and my wife and children remain in Australia, I will be physically separated from them and I will miss out on witnessing them grow and being a father to them. My children will grow up without their father and this will have a negative impact on my relationship with the children.
My Health
After my car accident, my physical and mental health has declined.
I have [pain in my body]. I also suffer from anxiety and depression. I attend my medical appointments with my wife.
My Ties to Australia
I have been living in Australia for ten (I 0) years.
During my time in Australia, I have not committed crimes.
When I was first was released from Christmas Island immigration detention centre and before my car accident, I worked hard. I worked in a [workplace 1], then as [an Occupation 2], and later in a [workplace 2].
I have a strong social support network in Australia. My family and I have many friends in Australia. We socialise with our friends and we support each other.
If my health improves, I intend to work, financially support my family and contribute to Australia's economy.
Why I cannot Return to Iran
Iran is not a safe country. My ethnicity as a Kurd automatically makes me a target and a second-class citizen. I believe that because of my ethnic appearance, I will be harmed and discriminated against by the Basij.
After my arrival in Australia, I have criticised the Iranian Government on social media and I have attended protests against the Iranian Government in Australia. If this is discovered, I will be harmed by the Iranian authorities.
As I have renounced Islam, I will be harmed by the Iranian Government, if l am forced to return to Iran.
I believe that I will suffer unfair and cruel treatment in Iran because of my medical conditions. I will not have access to the same quality of health care services to that in Australia. I believe this will affect my recovery.
I also believe that I will be harmed by the families of the smugglers in Iran. On 30 November 2011, I had an interview with the Australian Federal [Police] (case [number]). I gave [the officer] information about the smugglers and this helped secure their arrest. One of the smuggler's family in Iran, called my family and asked them why I did this. I fear that I will be harmed by one of the smugglers, presently in Iran and the smuggler's family, if l return to Iran.
I will experience difficulty financially surviving in Iran. This is because my medical condition prevents me from working. If l am to recover in the future, I will still have difficulty financially supporting myself because it is hard to find a job in Iran.
I hope that I am given a second chance. Australia is my home and is my family's home.
I will never again provide incorrect information. I will never engage in bad behaviour or commit a crime in Australia. I am very sorry for my previous conduct.
The Tribunal also received a substantial pre-hearing submission from the applicant’s representative. The submission makes reference to the background of the review application along with the applicant’s immigration history since his arrival in Australia on 26 November 2009. The submission makes reference to the relevant law referring to both the Migration Act and Regulations along with relevant policy considerations. The submission provides significant detail as to why the applicant’s visa having regard to the relevant discretionary considerations should not be cancelled. The submission states that the applicant relies on the Convention of the Rights of the Child as his daughter holds Australian citizenship and he now has an infant son and the cancellation of the applicant’s visa would lead to the potential breakup of the family unit. The submission notes that this Convention requires the best interests of any child as being a primary consideration.
REVIEW HEARING
The Tribunal conducted a review hearing on 16 January 2020 and the applicant attended the hearing along with his wife and two children. The applicant’s representative also attended the hearing. The applicant and the Tribunal were assisted by an accredited Persian interpreter.
At the outset of the review the Tribunal went into extensive details about the respective issues in the review and the prospective outcomes of the review process. The Tribunal advised the applicant that it had recourse to the applicant’s protection visa file, the Departmental cancellation file and had considered evidence provided at review stage.
The Tribunal discussed with the applicant the importance of providing truthful answers to the questions asked at hearing. The Tribunal noted that the applicant had provided incorrect information to the Department in his protection visa application stating that he was a stateless Faili Kurd when he was in fact an Iranian citizen of Kurdish ethnicity. The applicant advised the Tribunal that he would provide honest evidence to the Tribunal.
The applicant advised that he was born in Tehran, Iran on [Date 2].
The Tribunal asked the applicant about his family composition. The applicant advised that his mother was deceased and that she passed away when he was approximately [age] years old. The applicant advised that his father was alive and currently living in Ilam, Iran which had a large Kurdish population. The applicant advised that he had two brothers one resident in [City 1], Australia who held Australian citizenship, and an older brother who was resident in Tehran, Iran. The applicant advised that he had three sisters one living in Tehran, Iran the other in Ilam, Iran and a sister [Ms C] an Australian permanent resident residing in [City 1].
The Tribunal made reference to folio 83 contained in Departmental file [number]. The Tribunal noted that this formed part of the applicant’s initial response to the NOICC dated 26 November 2017. The Tribunal asked the applicant whether it was a factual statement or whether it was incorrect.
The applicant advised the Tribunal that at the time of his arrival at Christmas Island he was exhausted and traumatised by the ocean journey. He advised that the people smugglers who he had engaged to travel to Australia from [Country 3] had told him that it was best to advise authorities that he was an undocumented Faili Kurd from Iran. The applicant stated that he followed these directions as he was scared about being returned to Iran as he had experienced problems in that country. In addition to this the applicant reiterated that during initial interviews at Christmas Island an interpreter advised him that it was best not to disclose to the Department that he had a brother in Australia. The applicant advised that the initial response of November 2017 to the NOICC contained on the Departmental file was incorrect in terms of him not holding Iranian documentation. The applicant advised that his sister [Ms C] who had also travelled to Australia and lodged a protection visa application, had a seriously ill child and the applicant and his sister who was also the subject of cancellation action were concerned that they may be returned to Iran, where the applicant’s niece would not be able to obtain proper medical treatment for her significant medical problems which would most likely result in her death. For this reason to maintain consistency the response at folio 83 was provided.
The applicant advised that he then provided an accurate response dated 21 December 2017 found at folio 93 of the Departmental file where he stated that “since the day one I decided to emigrate (sic) no one let me to tell the truth (my brother and others told me if you want to live in this country you will have to tell the immigration that you’re Feili Kurdish) especially my sister when she was coming after a few months to Australia and she has a sick child and she afraid is if we go back to Iran her child won’t survive, so I was afraid to tell the truth until now! But I really got bored to continue this issue, I never lied in my life even a few years ago when I talk to Federal police I’ve told them the name of the person who bring us from [Country 3] to Australia! But the rest of my interview was truth! I got married in here and I have my own little family and we’re so happy and proud to live in such a country. I was working in last a few years like a normal Australian person but as I said I was a passenger in my friend’s car we had a big accident [in] September 2016 which stopped me from working now I’m seeing a physiotherapy and psychologist to get better quicker and back to my work and normal life! If you have any more questions you can make another interview and I can explain everything there as well! Appreciate it.”
The Tribunal asked the applicant whether the initial interviews that he conducted with the Department at the time of his arrival on Christmas Island were conducted with a Kurdish interpreter and he advised that they were and that he spoke both Kurdish and Farsi.
The Tribunal asked the applicant about the boat crossing from [Country 3] to Australia. The applicant stated that the boat left at approximately 6am in the morning, travelling all day and all night and being intercepted by a naval vessel at around 8pm the next evening. The applicant stated that it was a small boat with about 55 passengers on board. The applicant stated that at the time that he arrived on Christmas Island he was physically and mentally under pressure and was exhausted as the boat journey was perilous with big waves during the night and soaring heat during the day. The applicant described the boat journey as ‘scary’.

The Tribunal asked the applicant about the accident that occurred [in] September 2016. [Details deleted]. He advised that he and a friend decided to travel to the outskirts of [City 1] to the countryside where you could source fresh eggs and fresh fruit and vegetables. The applicant stated that he and his friend were travelling on a road with a speed limit of 100kph. The applicant stated that he was looking at his mobile phone when he briefly lost consciousness at the point of the accident. The Tribunal asked the applicant who was at fault in the accident and he advised that a kangaroo jumped in front of the car. The Tribunal asked the applicant who attended the accident scene and he advised the police, an ambulance, and that he was transported to [Hospital] with significant injuries. The applicant stated that he injured [medical details deleted] and that he was kept in hospital for 24 hours. The applicant stated that as a consequence of the injuries that he sustained in the accident it had been determined that he suffered with 19% incapacity.
The Tribunal noted that the applicant since 2016 had, based on the evidence before the Tribunal, the applicant had been actively involving himself in online blogging critical of the Iranian Islamic regime. The Tribunal asked the applicant what prompted this online activity. The applicant stated that he had experienced persecution by the Iranian regime namely the Basij. The applicant stated that the Iranian regime perpetrated atrocities against its own people. The applicant stated that he had developed a more significant online presence since being incapacitated and unable to work as a result of the car accident. The applicant stated that he felt compelled to establish an online presence critical of the Iranian regime because of the way they treated its citizens and the way he had been treated in the past.
The Tribunal asked the applicant about his work history in Australia prior to the accident. The applicant advised that he had predominantly worked as [an Occupation 2] but had also commenced a [business] which at the time of the accident was going from strength to strength, but which he was not able to continue the business after the accident.
The Tribunal noted that the applicant had provided a comprehensive statutory declaration prior to the hearing addressing why the cancellation of his visa should be set aside. The Tribunal asked the applicant whether there was any further evidence he wanted to provide beyond that document and beyond the evidence he had given at hearing. The applicant advised that he did not.
The Tribunal took evidence from the applicant’s wife [Ms E]. The applicant’s wife advised that she travelled to Australia with her mother and father along with her siblings and brother-in-law in 2010. The witness advised that she was around [age] at the time. The Tribunal advised that the evidence before it indicated that the witnesses family had approached the Minister to lift the bar to them applying for a protection visa and this was duly granted. The Tribunal noted that based on the evidence before it the witnesses family had 28 days to lodge a protection visa application but this had not been submitted within the requisite timeframe. The witness advised the Tribunal that she was heavily pregnant at the time that the application was due to be lodged. The witness advised that she had the best English language skills of all of her family members and they were reliant on her to submit the application. The witness advised that she had logged onto the Departmental website to try to upload the relevant forms but had trouble with the electronic documents and with moving through the form and that assistance sought from the Department had not been useful in resolving this problem. The witness advised that a further request had been made to the Minister to lift the bar to enable her family to lodge a protection visa application.
The Tribunal advised that the evidence around the witnesses family migration history and status in Australia and their respective claims for protection were unclear and advised that it would be useful if the representative was able to collate some information post hearing around this to enable a clearer picture to be formed. The representative agreed to provide a statement. The Tribunal also sought more detailed evidence around the applicant’s accident and about any litigation pertaining to the accident that is in progress. The hearing concluded.
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.
As set out above, the NOICC advised the applicant had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 19 March 2010.
In his response to the NOICC dated 21 December 2017, the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to Christmas Island and at the time he lodged his application for a protection visa. At the outset of the review hearing the applicant confirmed he had given incorrect information in his protection visa application when he claimed that he was stateless.
As the applicant concedes he gave incorrect information about his citizenship in his protection visa application, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.109 and that the notice issued under s.107 complied with the statutory requirements.
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 evidence before the Tribunal indicates that the correct information is that the applicant is an ethnic Kurd who holds Iranian citizenship and Iranian identification documents.
The Tribunal accepts the applicant’s explanation as to his family’s circumstances as set out in his response to the s.107 notice and at the review hearing namely that he is of Kurdish ethnicity but that his family held Iranian citizenship.
As has been noted, the applicant in responding to the NOICC on 26 November 2017, initially maintained that to the best of his knowledge he and his family were stateless in Iran. The evidence before the Tribunal indicates that this statement was made to protect his sister who is in Australia, who was also the subject of cancellation action and who has a critically ill child, currently being treated by physicians in Australia. Within three weeks of providing the initial response, the applicant, in an email to the Department dated 21 December 2017 confirmed that he was of Kurdish ethnicity but was not stateless and the reasoning behind the initial response of November 2017.
The Tribunal has taken into consideration the fact that the applicant disclosed to the Department on 21 December 2017 the correct information. The applicant in correspondence with the Department and in submissions to the Tribunal and at the review hearing has expressed his sincere contrition for the provision of incorrect information. The Tribunal finds that the applicant’s admissions in this respect should be given some weight towards the visa not being cancelled.
The content of the genuine document (if any):
This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).
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:
Recourse to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a Protection visa was based on his claim that he was a stateless Faili Kurd. In his response to the s.107 notice of December 2017, the applicant acknowledged the decision to grant him the protection visa was based on incorrect information.
The Tribunal accepts on the evidence before it that the applicant is an ethnic Kurd. The Tribunal finds that the applicant’s claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based on incorrect information. This fact is conceded to by the applicant. The Tribunal gives this fact significant weight towards the visa being cancelled.
The circumstances in which the non-compliance occurred:
The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his Refugee Status Assessment and in his subsequent application for a Protection (Class XA) visa application. At hearing before the Tribunal the applicant has stated he had given the incorrect information about his statelessness because he was told to do so by the people smugglers during the illegal journey to Australia. The advice that the applicant was given was that the claim of being a stateless Faili Kurd with no documentation would give him the best chance of being granted protection and circumvent his return to Iran, something that he was extremely fearful of.
In a submission from the applicant’s representative at review, the applicant’s representative noted that the applicant was [age] years old at the time of his arrival in Australia and had just turned [age] around the time that he was granted a Protection visa. The submission notes that despite the fact that the applicant holds Iranian citizenship he is an ethnic Kurd and he experienced discrimination in Iran on the basis of his ethnicity and that his freedom was curtailed and he was the subject of ill-treatment. As a consequence of his ethnicity the applicant attracted unwanted attention from the morals police known as the Basij. Evidence was provided that the applicant was stopped and beaten by the Basij in 2009 whilst walking with his then girlfriend. On another occasion, the applicant was stopped whilst a passenger in a friend’s car because they were consuming alcohol. As a consequence of the unwanted attention that the applicant attracted in Iran, the applicant felt unsafe and formed the view that he would continue to be subject to persecution if he remained in that country.
In the post hearing submission the applicant’s representative stated that whilst travelling illegally by boat to Australia the people smugglers confiscated the applicant’s identification. Further to this, had the applicant retained his identification he was told by the people smugglers that the Australian government would immediately return him to his country of origin. Indeed the applicant’s instructions to his representative were that upon detention at Christmas Island Immigration Detention Centre he was given the same advice by other detainees in the facility. Indeed the recurrent advice from people smugglers and from fellow detainees was that given the applicant was of Kurdish ethnicity he should claim to be a stateless Faili Kurd without documentation if he did not wish the risk of being sent back to Iran. Further to this the applicant during his protection visa interview was advised by the interpreter assisting the Department that he should not disclose the presence of his older brother in Australia.
The submission provided at review indicates that the applicant is extremely remorseful for his conduct and this is confirmed in the applicant’s statutory declaration provided prior to the review hearing.
The Tribunal has had regard to the circumstances in which the applicant left Iran. The Tribunal accepts that the applicant has experienced adverse treatment at the hands of the Basij in Iran. The Tribunal accepts the applicant’s evidence pertaining to his Kurdish ethnicity. The Tribunal accepts that the applicant was traumatised by the boat journey from [Country 3] to Australia and that he listened to the advice of smugglers which led to the applicant making claims of being stateless. As discussed with the applicant at hearing the Tribunal finds that the provision of incorrect information in the applicant’s Protection visa application undermines Australia’s Protection visa program. The Tribunal as discussed with the applicant at hearing holds the view that the provision of incorrect information led to the grant of permanent residence, something that was obtained on a false pretext. The Tribunal gives this consideration only limited weight towards the applicant’s visa not being cancelled.
The present circumstances of the visa holder:
The applicant’s representative’s submission at review quotes the Full Federal Court case of COT15 v Minister for Immigration and Border Protection (No.1) (2015) FCAFC 190 [28]. That case stated that when considering the present circumstances of the applicant the Regulations refer to a requirement to have regard to the physical, economic, emotional and relationship circumstances of an applicant.
The visa holder is in a marital relationship since 2015. The evidence before the Tribunal indicates that the applicant’s wife travelled to Australia illegally by boat with her family from Iran in 2010. During the hearing the Tribunal sought additional evidence pertaining to the applicant’s wife’s migration history in Australia to date and this information was provided post hearing. Indeed the Tribunal received a post hearing statutory declaration from the applicant’s wife dated 20 January 2020 which it has duly considered. The submission notes the following.
The applicant’s wife arrived in Australia [in] December 2010 with a number of her family members including her [mother], her [father], her [sister] and [her sister]’s [husband], her [brother], her [aunty], [her aunt]’s [husband] and two [cousins].
The applicant's wife advised that her parents were currently unemployed and that her [brother] is struggling with mental health issues due to his unresolved immigration status and his inability to secure employment because of this.
The applicant’s wife in her statutory declaration advised that at the time of the arrival of her family in Australia they were taken to Christmas Island Detention Centre and held in detention at this facility for six months. The applicant’s wife stated that her parents applied for a protection visa and that she and her brother were included in the protection visa application. She advised that her parents were interviewed with regard to the application but it was refused by the Department. The applicant stated that her family were then transferred to an immigration detention centre in Darwin where they spent three months and then transferred to an immigration detention centre in Adelaide where they stayed for another three months. The applicant’s wife advised that to her knowledge her parents had another interview pertaining to their claims for protection and the protection application was refused. The applicant’s wife stated that at the end of 2011 or the beginning of 2012 her family were released from detention and the family moved to [City 1] and that her parents have no recollection about being granted a visa prior to their release into the community. The applicant’s wife stated that the government paid for the family’s lease for approximately 1 ½ years. The applicant’s wife advised that the last interview that her parents had with the Department was in around 2013.
The applicant’s wife advised in her statutory declaration that in around 2017 her family were given an opportunity to apply for either a temporary protection visa or a safe haven enterprise visa and were given 28 days to make the application. The applicant’s wife stated that as she had the best English in her family and as her family could not afford the assistance of a migration agent or a lawyer she was tasked with applying for one of these visas. The applicant’s wife states that:
I really struggled to complete the applications because I was unsure about what I was doing, the applications were very long and I was pregnant at the time. I called the Department and spoke to a [man]. He helped me by telling me what I should apply for and how I should apply, but he said he could not complete the applications for me. I tried to complete the applications online, but it did not work. If I could not answer a question, it would not let me proceed to the next page. I then completed paper applications and sent them to the Department. However, as I did this on the last day, it was too late. The Department contacted me and said that not only had I completed the incorrect forms, I was out of time and I could not reapply.
The applicant’s wife advised that she and her family currently hold Bridging E visas. She advised that her family status resolution support services payments stopped in October 2018. The applicant’s wife stated that her family have struggled to obtain the services of a lawyer or migration agent because of their precarious financial predicament. She further advised that the family had just been made aware that they could obtain some assistance from [Organisation 1] and [Organisation 2] and that the family intend to contact them to ask for assistance with a prospective protection application. The applicant’s wife states that:
My family and I are scared to return to Iran. In Iran, my [brother] was arrested by the Basij and was detained for a number of weeks. He was beaten by the Basij. We feared for his safety and feared that this would continue to happen. We also feared that other members of my family would be harmed or killed. My older brother is currently in prison in Iran because the government learned that my family and I came to Australia. Due to our ethnicity, we will never be treated fairly in Iran. We fear for our lives in Iran and cannot go back.
The evidence provided by the applicant’s wife indicates that she and members of her immediate family hold a fear of persecution if they were to return to Iran. An opportunity to make an application for a temporary protection visa or a safe haven enterprise visa was not pursued for the reasons stated. This has been compounded by the fact that the applicant’s wife and her family have not been able to afford to engage a migration lawyer to advise and assist them on a prospective application and thus the prospective merits of a temporary protection visa or a safe haven enterprise visa or indeed a protection visa remain untested at this point in time.
The evidence before the Tribunal indicates that the applicant has two children born in Australia. The evidence indicates that the applicant’s daughter [Child 1] is [age] and is an Australian citizen. Annexed to the submission was a certificate of citizenship pertaining to the applicant’s daughter. The evidence indicates that the applicant and his wife [Ms E] share parental responsibility for [Child 1]. The submission provided to the Tribunal notes that the family unit is a close knit one and that the cancellation of the applicant’s visa will lead to the devolution of the family unit and the submission notes that the applicant has been integral in the care and control of his children since their births.
As has been noted the applicant suffered substantial and life changing injuries in a car accident in September 2016. Despite the fact that the applicant suffers with chronic pain and depression the submissions provided to the Tribunal and indeed the evidence of the applicant indicates that he is intrinsically involved in the care of his two dependent children. The post hearing submission indicates that the applicant’s wife cannot return to Iran as she and her family hold what they consider to be a fear of persecution for Convention based reasons.

The submission notes that the applicant and his wife have a son [Child 2] and that the applicant has a close parental relationship with his son and shares parenting of his son with his wife [Ms E]. The submission notes the right of a dependent child to spend time with both parents and refers to the Family Law Act 1975 as an authority for this proposition.
The submission notes that the applicant has been married to his wife for in excess of four years now. The applicant’s wife has instructed the applicant’s representative that she and the applicant spend every free moment together and provide each other with companionship and support. The applicant’s wife has instructed the applicant’s representative that she is not able to be a sole parent for her two young dependent children and requires the physical and emotional support of the applicant. The evidence also indicates that the couple’s current financial circumstances are precarious at best and this will be further stretched if the applicant had to leave Australia.
The submission at review makes reference to the applicant’s health conditions. The submission notes that the applicant suffered a catastrophic motor vehicle accident [in] September 2016 and as a consequence the applicant suffers with [pain] and has developed severe anxiety and a major depression for which he is being treated with antidepressant medication. The applicant is in regular consultation with medical practitioners and is under the care and control of a treating psychiatrist for his depressive illness. The submission notes that the applicant is unlikely to receive the same quality and standard of healthcare in Iran to that which has been available to him in Australia. The submission notes that the Tribunal should give weight to the applicant’s mental and physical health conditions when exercising its discretion to not cancel the applicant’s visa.
The submission makes reference to independent medical evidence that has been provided to the Tribunal which indicates that the applicant’s mental health conditions brought about by his accident and his inability to work has substantially deteriorated as a result of his immigration problems. The evidence indicates that the applicant has been living in Australia for 10 years and has an established life in Australia with his wife and two children.
The evidence before the Tribunal indicates that as a result of the applicant’s motor vehicle accident he has been left with significant levels of injury. The applicant’s injuries as noted have inhibited his ability to work since September 2016 and the applicant has been reliant on income paid by the [transport authority] of [State 1]. The evidence indicates that this payment is only made for a three-year period which has now expired. The Tribunal has substantial medical evidence that has been provided corroborative of the applicant’s mental health condition and physical condition.
The Tribunal has considered each of these factors individually and cumulatively. The Tribunal finds that there are significant compassionate grounds relating to this consideration and the Tribunal gives this ground significant weight towards 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 evidence before the Tribunal indicates that after being served with the NOICC the applicant did not initially acknowledge that he had provided incorrect information to the Department in his application for a Protection visa. The applicant’s representative’s submission on review notes that “while it is recognised that this is weighed in favour of cancelling the applicant’s visa, it is submitted that the applicant’s non-compliance was specific to a chain of events that cannot re-occur in the future: he failed to disclose his Iranian citizenship and ethnicity due to his fear that he would be sent back to Iran, where he would be subjected to discrimination and harm. Now that the Department is aware of the applicant’s Iranian citizenship, the applicant no longer has anything to hide and will not provide further incorrect information to the Department. The applicant has lived in fear of being caught and now he feels relieved that the truth has come out. The applicant is very sorry.”
In addition to this the applicant has stated to the Department in his statement dated 21 December 2017 that another reason for the failure to initially disclose that he held citizenship in Iran related to his sisters circumstances. The evidence indicates that the applicant’s sister, along with her husband and child had travelled illegally to Australia by boat. The evidence indicates that the applicant sister’s child suffers with significant health issues and that if she was sent back to Iran with her child the chance of the child surviving would be very poor. The applicant stated that in order to protect his sister he was afraid to tell the truth until now and the evidence before the Tribunal indicates that the applicant’s sister was also the subject of cancellation action by the Department for failure to provide correct information pertaining to her Iranian citizenship. These factors initially led to the applicant concealing the truth about his circumstances to protect his sister and her sick child for fear of them being returned to Iran.
The Tribunal finds that the applicant has provided since 21 December 2017 as much information about the non-compliance to the Department and indeed to the Tribunal at review as he has been able to provide. The Tribunal gives this consideration some weight towards the visa not being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister:
On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister. In his response to the s.107 notice the applicant stated that there are no other instances of non-compliance and he has otherwise fully complied with his visa conditions. The Tribunal gives this consideration some weight towards the visa not being cancelled.
The time that has elapsed since the non-compliance:
The relevant non-compliance took place when the applicant made his visa application in January 2010 and 10 years have elapsed since then. The Tribunal gives this consideration some weight towards the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches:
There is no evidence before the Tribunal and indeed the applicant stated at hearing that there have been no instances of the applicant breaching the law and he has been a law abiding permanent resident. The Tribunal gives this consideration some weight towards the visa not being cancelled.
Any contribution made by the holder to the community:
In the submission provided by the applicant’s representative at review the applicant’s representative has advised as follows:
Throughout the applicant’s time in Australia, the applicant has established personal and business relationships with members of the Australian community. It is submitted that the positive contributions made by the applicant to the Australian community should be weighed in favour of the Tribunal exercising its discretion to not cancel the applicant’s visa.
In accordance with the attached statutory declarations, the applicant is kind, helpful, honest and skilled. He is a good friend to members of the Australian community. He is also a member of [Organisation 3] [State 1]. By participating in activities organised by the [organisation], the applicant has contributed to raising awareness about the plight of Kurds in various countries and has contributed to the preservation of the culture, language and identity of Kurds. Please refer to the attached letter from the [organisation]. Further, upon the applicant’s entry into the Australian community, he has worked hard and in doing so, contributed to the Australian economy by paying his taxes.
The Tribunal gives this consideration some weight towards the visa not being cancelled.
Other factors to be considered
While the above 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.
If the applicant’s visa is cancelled, the applicant will become an unlawful non-citizen and he will be liable to be detained.
Another consequence of the cancellation of the applicant’s visa is that the applicant is now an important and integral part of the family unit of his wife and her family and plays an intrinsic role in the care and control of their two dependent children one of whom, their daughter [Child 1] is an Australian citizen. The evidence indicates that the applicant’s wife and the applicant have been in a long term marital relationship.
The evidence also indicates that the applicant’s wife’s family fled Iran in 2010 to Australia and have, as advised in the statutory declaration, of 20 January 2020 a fear of persecution if they were returned to Iran. There claims for protection have not been finally determined at this point in time.
The Tribunal has also received a post hearing letter from the applicant’s personal injuries lawyers [Law firm] in [City 1]. The letter indicates that:
[The applicant] was involved in the subject accident in [State 1] and was a [State 1] resident at the time of the subject accident. Therefore, regardless of his immigration status he has rights and entitlements under the [State 1’s legislation] (“the Act”)
These rights and entitlements are administered by the [transport authority]. We advise that there are two components of [the applicant]’s [transport authority] claim, being:-statutory benefits claim, and the common law claim for damages.
As part of [the applicant]’s statutory benefits claim, the [transport authority] has accepted liability in relation to [the applicant]’s transport accident injuries, which include injuries to his [body parts], and a psychological/psychiatric reaction.
This entitles [the applicant] to claim his reasonable and accident -related medical and like expenses from the [transport authority], in accordance with [the Act] importantly, this entitlement is limited to medical and like services ‘received in Australia’. Therefore, if [the applicant] were to return to Iran (or any other country) he would not be entitled to claim or receive reimbursement for his reasonable accident-related medical and like expenses under s.60 of the Act.
We are instructed that [the applicant] continues to undergo treatment and take medication for his accident related injuries, which are being funded by the [transport authority].
As part of [the applicant]’s statutory benefits claim, [the transport authority] has also determined that [the applicant] suffered a whole person impairment exceeding 11% and entitling him to compensation under the Act. The [transport authority] has also paid [the applicant] weekly payments for lost earnings, for a period of three years, which is the maximum statutory entitlement for a claimant with [the applicant]’s level of impairment.
In order for [the applicant] to be entitled to obtain compensation for general and pecuniary loss damages at Common Law, he requires leave of the court. In order for leave to be granted, [the applicant] must prove that he suffered a serious (accident related) injury, that is, a serious long-term impairment or loss of body function of his [body parts]; and/or a severe long-term mental or severe long-term behavioural disturbance or disorder.
The submission from [Law firm] goes on to state that [the transport authority] has made a decision to deny the applicant’s serious injury application [in] September 2019, a decision which has been appealed to the [Court] of [State 1] and listed for hearing [in] April 2020. The letter goes on to outline the requirements that the applicant will need to establish in order to pursue common law damages.
The evidence before the Tribunal indicates that the applicant whilst resident in [State 1] was involved in a car accident [in] September 2016 the consequences of which led to life changing injuries. The evidence indicates that as a result of the combination of those injuries the applicant since the time of the accident has not been able to return to work. The evidence further indicates that as a consequence of the accident and his inability to work the applicant suffers with serious mental health issues predominantly major depression and is under the treatment of a consultant psychiatrist and takes antidepressant medications.
The applicant as has been noted in the correspondence from [Law firm] currently has an action before the [Court] of [State 1] and is hopeful of pursuing Common Law damages in Australia that arise from the accident that occurred in a vehicle for which he did not have control and which based on the evidence before the Tribunal is in no way attributable to the applicant. The evidence provided to the Tribunal indicates that the applicant has as a consequence of the accident has been able to avail himself of the expertise provided by the Australian medical profession and that the care and support that would be available to the applicant in Iran would be substantially inferior. The Tribunal finds that the lack of adequate medical treatment that would be available to the applicant is a relevant factor in its consideration as to whether the applicant’s visa should be cancelled. The Tribunal finds that the cumulative effect of the evidence pertaining to the applicant’s accident and its effects on his life outweigh factors in favour of cancelling the applicant’s visa.
Australia is a signatory to the Convention on the Rights of the Child which relevantly provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration,” and further states that “parties undertake to ensure the child such protection and care as is necessary for his or her well-being.” The Convention also provides for the protection of the family unit and provides the rights for a child to be cared for by both their parents, the preservation of family relations and the children should not be separated from their parents against their will unless such separation is necessary for the best interests of the child.

100. The evidence before the Tribunal at review indicates as noted that the applicant and his wife have two infant children, the eldest [Child 1], a daughter being an Australian citizen. The evidence before the Tribunal indicates that the applicant’s wife has a fear of returning to Iran for Convention based reasons that remain unresolved within the Australian migration jurisdiction. The evidence of the applicant’s wife is that she is unable and unwilling to return to Iran. The cancellation of the applicant’s visa will lead to the breakup of the family unit.
101. Having regard to the Convention on the Rights of the Child it is clearly in the applicant’s children’s best interests that the family unit remains intact. It is clearly in the applicant’s daughter’s best interests that she is able to remain in Australia as is her right as an Australian citizen. The Tribunal, having regard to the Convention on the Rights of the Child gives this factor along with the other considerations mentioned above significant weight in not cancelling the applicant’s visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements:
102. The Tribunal accepts on the basis of the evidence before it that the applicant is of Kurdish ethnicity however notes that country information such as the Department of Foreign Affairs and Trade (DFAT) reports that Iran’s laws do not discriminate on the basis of ethnicity. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states those experiences are not uniform. DFAT is not aware of instances where Faili Kurds have been singled out for discrimination or where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. DFAT reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranians. (see DFAT Country Report Iran 7 June 2018 at 3.13 and 3.14).
103. The Tribunal accepts the consistent thread of evidence that the applicant has provided pertaining to his ill treatment at the hands of the Basij in Iran. The Tribunal also notes that the applicant has relinquished his religious beliefs and abolished his religious practices as a consequence. The Tribunal further notes that the applicant has been involved in expressing anti Iranian government sentiment in online blogs and has engaged in this conduct since 2016.
104. The evidence before the Tribunal indicates that the Basij units in Iran often engage in repressive and intimidating conduct against Iranian citizens accused of violating the countries strict moral code (see Department of Foreign Affairs and Trade, Country Information Report: for Iran (7 June 2018) at 45).
105. The evidence before the Tribunal indicates that the renunciation of Islam creates a real risk of persecution as the law in Iran prohibits individuals from renouncing Islam and that under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with Apostacy. (see Department of Foreign Affairs and Trade, Country Information Report: for Iran (7 June 2018) at 17, 21 and 24).
106. The evidence before the Tribunal indicates that the Iranian government has detained citizens involved in participating in anti-government protests. Information from the Department of Foreign Affairs and Trade Country Information Report for Iran recognises that members of ethnic minority groups face a moderate risk of official and societal discrimination and that the risk to members of ethnic minority groups who are involved or perceived to be involved in activism is higher. (see Department of Foreign Affairs and Trade, Country Information Report: for Iran (7 June 2018) at 51).
107. The Tribunal has also had regard to the applicant’s representatives pre-hearing submission dated 10 January 2020 that makes reference to the potential for persecution of the applicant because of the disability that he has acquired in Australia, the relevant impediments to the applicant’s removal from Australia and that these impediments should be weighed against the cancellation of the applicant’s visa.
108. The Tribunal has had regard to these respective considerations and give significant weight to these considerations in not cancelling the applicant’s visa.
EXERCISE OF DISCRETION
109. The Tribunal in considering the exercise of discretion gives significant weight to the finding that the applicant’s statement in his visa application claiming that he was a stateless Faili Kurd was the critical fact that led to the grant of protection. The evidence before the Tribunal and indeed conceded to by the applicant was that the grant of a protection visa was based on incorrect information. The Tribunal finds that had the applicant provided correct information, he may not have been found to engage Australia’s protection obligations. The Tribunal discussed this with the applicant at the review hearing and put to the applicant that the Tribunal, held the view that the applicant had been granted permanent residence on a false pretext. The Tribunal holds a strong view that the applicant should not derive a benefit from the provision of false information. However the cancellation of a visa requires a two pronged consideration. Does the ground for cancellation exist (a fact that has been conceded to by the applicant) and whether the visa should be cancelled having regard to a range of discretionary considerations. The Tribunal is also conscious of the fact that the grant of permanent residence occurred in January 2010, 10 years ago now and that the applicant has established a life in Australia during that time. In addition to this the Department did not proceed to cancel the applicant’s visa until August 2018 and a review did not get underway with the Tribunal until January 2020.

110. During the extended passage of time since the initial grant of permanent residence, the applicant as noted has established a life in Australia, he has worked as [an Occupation 2] and then established a [business] which was growing over time. However the applicant’s ability to work has been curtailed as a result of his car accident in September 2016 in which the applicant suffered a number of debilitating injuries which have inhibited his return to work to date. The applicant has been undergoing extensive physical therapy and rehabilitation in an attempt to return to work. The evidence indicates that the applicant suffers with chronic pain and this has to be managed as required with strong analgesics. The evidence indicates that the applicant was the passenger in the vehicle at the time and that the accident occurred in a rural setting when a kangaroo jumped out in front of the vehicle. The evidence indicates that the applicant is involved in litigation pertaining to the accident. Under [State 1]n accident compensation rules, post-accident compensation is only payable for a maximum of 3 years and this compensation recently ceased causing the applicant substantial economic hardship. This is compounded by the fact that the applicant is ineligible for any Commonwealth assistance due to the fact that he is an unlawful non-citizen as a result of the cancellation of his substantive visa.
111. The evidence before the Tribunal indicates that the applicant suffers with a major mental illness, namely a major depression and that he is under the care and control of a psychiatrist for this condition and is on antidepressant medication. The evidence indicates that the applicant’s depression stems from the accident that occurred in September 2016 and its impact on the applicant’s life and has been further exacerbated by the cancellation of the applicant’s visa.
112. The evidence further indicates that the applicant is in a marital relationship since 2015 and that he and his wife have 2 children a daughter [Child 1] who is an Australian citizen and a son [Child 2] who is not, as his father’s permanent residence had been cancelled at the time of his birth. The Tribunal has had regard to the Convention on the Rights of the Child, requiring the impact of any decision on children and the prospective disintegration of the family unit to form a primary component of the decision-making process
113. The evidence before the Tribunal indicates that the applicant’s wife fled Iran with her family in 2010 by boat and that she and her family hold a fear of returning to Iran, whether this fear is well-founded remains untested at this stage. The evidence indicates that the Minister was willing to lift the Section 46 bar that applied to her family lodging a temporary protection visa or a safe haven enterprise visa, however the application was not lodged within the requisite 28 day period after the lifting of the bar and the family have made another plea to the Minister to lift the bar again.
114. Further to this the evidence before the Tribunal indicates that the applicant has experienced ill-treatment in Iran at the hands of the Basij. The applicant has renounced his Islamic faith. The applicant has been involved in online blogging critical of the Iranian Islamic regime. The applicant cooperated with the Australian authorities pertaining to Iranian nationals involved in the people smuggling process. The applicant has claimed that this cooperation with the authorities has placed him at risk if he was to return to Iran. The Tribunal finds that these factors when cumulatively considered indicate that the applicant could face persecution in Iran if he was return to that country.
115. All of these discretionary factors require very careful consideration and having given all of the required circumstances such consideration the Tribunal considers that these matters which the Tribunal is required to have regards to outweigh those matters which favour cancelling the applicant’s visa.
CONCLUSIONS
116. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
117. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
John Cipolla
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

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 664

22 January 2020

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