1827424 (Refugee)

1827424 (Refugee) [2021] AATA 584 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1827424
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Sean Baker
DATE:4 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 4 March 2021 at 12:31pm:
CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless/Iran – Federal Circuit Court remittal – incorrect information in visa application – stateless Kurd or Kurdish Iranian citizen – originally departed on fraudulently acquired passports – acquired genuine passports from embassy in Australia and used them to re-enter and depart – claim that genuine passports acquired using fraudulent documents obtained by brother – country information about procedure for obtaining passports and document fraud – discretion to cancel visa – secondary applicant wife’s mental health and child’s disability and care needs – country information about health care and education – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 and Border Protection to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the delegate found the applicant had provided incorrect information and found that the reasons for cancelling the visa outweighed those against. The issues in the present case are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The Tribunal, differently constituted, affirmed the cancellation decision. The applicants appealed to the court and the matter was remitted by consent on the basis that the previous Tribunal failed to have regard to a claim or integer of a claim advanced by the Applicant. Specifically, the Tribunal failed to consider the Applicant’s claim to fear harm on account of being a returnee from a Western country.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects: the delegate found the applicant is an Iranian citizen and was never stateless and that he therefore provided incorrect answers to questions 19, 23, 41 and 53 on his protection visa application form 866C.
On this basis the delegate found that there had been non-compliance in the way described in the s. 107 notice and proceeded to cancel the applicant’s visa.
In his response to the s. 107 notice and in his submissions to the previous tribunal and this tribunal, the applicant has strenuously denied that he provided incorrect information.
The question before me is whether the applicant, and his family, are stateless as claimed.
The applicant has provided a consistent, and compelling story of his life as a stateless Kurd in Iran. This was accepted by the IMR as was his claim that he and his family departed Iran on fraudulently acquired passports.
However, since that time and as particularised in the s. 107 notice, the applicant obtained Iranian passports for himself and his family and used these documents to enter and depart Iran in 2014.
The applicant has claimed that these documents were genuinely issued but fraudulently acquired passports through the use of fraudulent feeder documents.
According to the decision record, the applicant and his family used their Australian titre de voyage (TDV)to depart Australia [in] March 2014 and returned [in] June 2014. The applicant was interviewed on return to Australia and told the officer that he had travelled to Iran as his mother was sick. The applicant, his wife and children held Iranian passports issued by the Iranian embassy in Canberra in [2013] and bearing entry and exit stamps from Iran.
Country information indicates that passports serve as proof of Iranian citizenship.[1] It is not disputed that these documents are genuine Iranian passports. Holding a genuine passport raises the presumption that the holder is a national of that country.[2] Therefore, prima facie, the fact that the applicant and his family hold these passports, in their names and issued by the Iranian embassy in Canberra, indicates that they are Iranian citizens and therefore that the applicant provided incorrect information about his status as a stateless person in his protection application in the way described in the s.107 notice.
[1] DFAT Country Information Report Iran, 14 April 2020, 5.38; See also Canada: Immigration and Refugee Board of Canada, Iran: The passport; its features and procedures for application including whether an applicant who was refused a passport would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passports to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey, and Azerbaijan overland, and Oman and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004 - February 2006), 3 April 2006, IRN101054.E, available at:
[2] UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons, Geneva, 2014.
The applicant’s submissions to the Department was that his brother found someone in Iran who could help with obtaining Iranian passports through payment of bribes to the Iranian authorities, the applicant did not know how his brother arranged the passports, he simply received a serial number to pick up the passports from the Canberra Iranian Embassy. The delegate noted that this contradicted information that to obtain a new passport the applicant must supply the original passport, original shenasnameh, ‘refugee’ passport and military service card. The delegate noted that this clearly contradicted the explanation provided by the applicant. The delegate noted that the submissions did not elaborate on the bribery, and the passports contained biodata of the Iranian National Identity Card (NIC or Kart-e-Melli) and shenasnameh of the applicant and his family which substantiated their Iranian citizenship, that fingerprints of passport applicants are obtained and id checks, and therefore that the delegate found the applicant’s account of obtaining his and his family’s passports by bribery to be unconvincing and implausible.
The submissions to the first tribunal claimed ‘ … that for $3000 his brother was able to obtain fake identity documents, get them certified and be issued with a serial number. This serial number was then given to the applicant, who provided it along with a passport application and application fees, for the issuance of the passport. It was submitted that the applicant provided the passports to the customs official at the airport and explained why he had travelled to Iran. It was submitted that the applicant provided correct information at the application stage.’
The applicant claimed to the first Tribunal that he had provided his Australian TDV which recorded his nationality as Iranian, to his brother in Iran, who had then been able to arrange identity documents for the issuing of the passports. The first Tribunal noted that this information did not seem consistent with information that key Iranian identification documents such as the shenasnameh and the NIC are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use,[3] that there was a sophisticated procedure for the issuing of identity documents and that these documents could not be produced with such limited information as claimed by the applicant, given the sophisticated nature of these documents and found the applicant had used genuine Iranian identity documents to have the passport issued. That Tribunal went on to discuss with the applicant what had occurred at the Iranian embassy in Canberra and what questions the embassy staff had asked him about his missing identity documents and the requirement for an original Australian police report of the missing passport for the issuing of a replacement passport, and the applicant stating that the officials helped him fill out the questions and did not push him for information and that maybe the person in Iran had paid or bribed the officials in Australia – he did not know what had occurred behind the scenes. The previous Tribunal found these explanations wholly unsatisfactory and inconsistent with information on the Iranian embassy website for the provision of a replacement passport.
[3] This information was taken from an earlier version of the DFAT Country Information Report of Iran from 2016, as well as other sources, and is entirely consistent with the most recent DFAT Country Information Report Iran, 14 April 2020, 5.41 – 5.42.
In his statement to me the applicant has claimed that with the help of his brother they had tried to contact the same smuggler to get another passport for them all to enter and leave Iran but were unable to get in contact with him. With the help of a third party his brother had fraudulent Shenasnameh created for the applicant and his wife and sons, and a fraudulent military service completion certificate created for the applicant, and that these were used to ‘create the records of Iranian passports …’ for them all. Then the applicant made a police report in Australia that their passports had been stolen and submitted this to the Iranian Embassy in Canberra to have their passports issued.
At the hearing the first named applicant gave evidence that when they had travelled to Australia in 2010 they had passed through the airport in Tehran and had used fake Iranian passports to exit the country.
In 2013, the applicant had then, he claimed, acquired Iranian passports from the Iranian embassy in Canberra. He confirmed that these were genuinely issued documents with false information. I asked him to explain how he had arranged for these 2013 passports to be issued. He explained that the issue had been with his Australian TDV, which incorrectly said he was Iranian because, he said, he had been asked by the Australian passport office where he was born and he had said Iran. They had then put this on his TDV. When this was issued and he had shown his brother in Iran, his brother had said that the applicant was eligible to get an Iranian passport. His brother said to him that he could ask someone to make a fake shenasnameh for the applicant and his family. The applicant said that when he had lived in Iran he had applied many times to get identity documents but had not been successful. I asked him to confirm that his brother had said he could get fake shenasnameh and the applicant confirmed this, he said that in Iran you can get anything if you pay money. After some discussion the applicant said his brother had also been able to acquire fake NICs. He said he did not know exactly all the documents required to issue the passport, his brother had not made real identity documents, just copied them, but you could not see the difference. His brother made these fake copies and certified them and sent them. The applicant said that this cost around 3, 000 AUD. The applicant said that after the documents were certified they were submitted to the Iranian Department of the process of foreign people who then sent them on to the Embassy in Australia. His brother then sent him the serial number and the Embassy here said that he had to send them some documents – his driver’s licence and house contract agreement and copy of visa he had and then they had to go to the police and report a lost document and provide passport photos.
I noted that information from the Iranian Embassy in Australia indicated that he would have been required to provide originals of his Iranian identity documents to acquire new or replacement passports.[4] The applicant said he didn’t have originals, they were just made for him in Iran. I noted that this part of his claims appeared to contradict information from the Embassy website and I was not sure that he would have been issued with the passports in the manner he had described. He said the Embassy had been sent the information they needed from Iran.
[4] The procedure for acquiring a new or lost/stolen passport is set out on the website of the Embassy of the Islamic Republic of Iran in Canberra and states an applicant must supply: An original copy of Australian police report (sealed by the Australian police) if passport was lost or stolen; • Date of last departure from Iran and location of last departure; • Original birth certificate (including copies of all its pages) – This includes a photo; • Australian residence permit or Australian passport; • Original and copy of the military service card or military exemption card; • In addition a relative in Iran must go to the Passport and Visa Office of the Foreign Ministry in Tehran to request that ‘The date of last departure from Iran’ be sent to the Iranian embassy in Australia, and send their documents together with a separate sheet that contains the number and date of the lodged letter from Iran -
I asked the applicant what purpose he had acquired the Iranian passport for. He said that they were to travel to Iran with no issues and this was the only purpose to get them. He confirmed that when they had returned to Iran in 2014 they had held Australian TDV. I asked why they had not just gotten Iranian visas in their Australian TDV. The applicant responded that there were two issues. The first was that when he had been granted the TDV the Australian passport office had written in there that he was Iranian. The second was that in the TDVs of the rest of the family they had written that they were stateless, and this was not acceptable in Iran and it was said that this might make an issue for them. I noted that it was my understanding that Iranian visas had been issued to Kurds even in these circumstances (that is, where the Australian TDV states ‘Iranian’ or ‘Stateless’). I noted that I was concerned with his claim that he had acquired bogus Iranian passports for a large amount of money when it appeared he could have acquired Iranian visas in their TDVs for less hassle and considerably less money. The applicant responded that people make mistakes and he did not know exactly why they had done things in this way. I noted that I might consider that it was because they held genuine Iranian passports because they were Iranian citizens. He responded that they were not Iranian citizens and had had a very hard life in Iran.
I put to the applicant the country information. This information largely agrees with the information set out in the DFAT report that Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use, and DFAT had been told by local sources that document fraud is ‘extremely difficult’ for primary forms of documentation like passports, NIC, shenasnameh and driver’s licences, and that obtaining these documents is considered beyond the technical and financial means of most Iranians.[5]
[5] DFAT Country Information Report Iran, 14 April 2020, 5.41 – 5.42.
The DFAT report goes on to state that passports and NIC have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge and also making fraudulent passports and national identity documents easy to detect.[6] Further, that ‘Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment).[7] The DFAT report goes on to conclude that whilst the existence of corruption in relation to official documentation cannot be discounted it is not assessed as prevalent, particularly in relation to primary and secondary forms of documentation and assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.[8]
[6] DFAT Country Information Report Iran, 14 April 2020, 5.42
[7] DFAT Country Information Report Iran, 14 April 2020, 5.42
[8] DFAT Country Information Report Iran, 14 April 2020, 5.42
Indeed, one of the sources cited in the most recent submission supports the fact that the prevalence of fraud and forged documents have led to multiple layers to prevent fraud, including public and private sectors corresponding directly with the public conscription organization for confirmation of authenticity of military service discharge certificates.[9] Other information indicates that there are extensive processes in place for the issuing of an Iranian NIC.[10]
[9] United Kingdom: Home Office, Country Policy and Information Note Iran: Background information, including actors of protection and internal relocation , September 2018, Version 5.0, Appendix A, available at:
[10] Canada, Immigration and Refugee Board, Iran: The National Identity Card, including requirements and procedures to obtain the card within the country as well as from abroad; whether the card has replaced the shenasnameh; whether fraudulent cards exist (2012-September 2013), Research Directorate, Immigration and Refugee Board of Canada, Ottawa.

The applicant responded that there was corruption and many things in Iran but the people who make fraudulent documents know how to deal with the environment. He said in addition that technology of seven or eight years ago was not like today. I noted that the information about the NIC came from 2012 – 2013.
The representative argued that the Australian police report made by the second named applicant in April 2013 corroborated that part of their claims, and if they were indeed Iranian citizens it would be an awkward step to report Iranian passports missing. They could have just gone to the Consulate and had them re-issued. She noted that the Tribunal must reach a positive state of satisfaction that incorrect information has been provided and that at the time he made his protection application he was Iranian. She noted that the applicant’s brother was now deceased so there were elements of the applicant’s claims that could not be verified with his brother. It was noted that the applicant had provided a range of explanations for how the 2013 passports were acquired and this inconsistency in accounts suggest he was not involved, it confirms his brother was involved.
I noted to the applicants that the other visas were cancelled by operation of law and I had no jurisdiction to review them. They indicated they understood. The second named applicant said that since they received the visa cancellations their life had been very hard.
The applicant’s claims have evolved over time. I find it concerning that the applicant did not tell the earlier Tribunal he had made a police report and provided this to the Iranian Embassy in Canberra. I find it concerning that he has not explained clearly how the shenasnameh, and military completion certificate were issued. The applicant has also not explained how the NIC numbers were obtained. Whilst it is true that he was not directly party to how these were fraudulently created, he has had a number of opportunities to explain this in more detail and has not done so. At hearing I did not find his evidence of the process he claimed he had gone through at all convincing. Nor was he able to satisfactorily explain why he did not obtain Iranian visas in his and his families TDVs – a much easier, cheaper and less dangerous process than the one he claims to have gone through to get genuinely issued Iranian passport but based on false information.
Whilst the most recent submission provides a number of reports which discuss forgery and falsified documents in Iran, this country information concerns forging documents to avoid conscription, or a higher education diploma, the erasure of a former spouse for marriage purposes, and speculation that whilst some documents are simply forged, others are genuine documents fraudulently obtained through bribery, as well as the use of tourist visas or business trips to gain entry to other countries. The submission then pivots to provide information about corruption in Iran which remains endemic, including bribery to officials to provide routine services or to obtain permits for otherwise illegal construction. The submission goes on to cite AAT case 1730514 [2018] AATA 5641 and noted that this:
… concerned a Faili Kurdish applicant, who had filed a false report with police in Australia regarding a stolen Iranian passport, in an attempt to have a passport issued to permit his return to Iran. The Tribunal, constituted by Nicole Burns, found that the applicant’s conduct did not ‘constitute probative evidence that the applicant is an Iranian citizen and not stateless,’ and concluded that ‘although the applicant’s explanation…is questionable, it is plausible.’
The submissions also mention the fact that the applicant handed over the Iranian passports ‘without hesitation’. I do not find this compelling, there is simply not enough information about what occurred during the interview to indicate why these were handed over without hesitation or what if anything this reflects of the applicant’s state of mind at the time. I do not find this to be a convincing argument for the applicant’s claims that the passports are not proof of their Iranian citizenship.
The submission claims that the delegate and previous tribunal ‘dwelt incorrectly upon the ‘security features’ of modernised Iranian passports, and the difficulty of travelling on a forged or falsified document lacking those features,’ and restated that the claim was that the passports were genuine documents but based on falsified anterior documents.
At hearing the applicant could not explain how these falsified anterior documents were generated, given the country information that such anterior identity documents are highly controlled, and his explanation for how the passports were issued in Canberra and the documentation he was required to provide to the Embassy is at odds with country information.
I have carefully weighed the information before me. I find the applicant’s claims of how he obtained genuine Iranian passports on the basis of fraudulent feeder documents to be lacking plausibility. The country information indicates that the shenasnameh, NIC and military discharge certificate are all primary identity documents, and are subject to a range of checks and counter checks to verify they are genuine, in part because fraud is a widespread and recognised problem in Iran. I find that the country information provided by the applicant refers to fraud in other, secondary documents, not these primary forms of identification, and that the general statement that there is fraud and corruption in Iran ergo the passports were obtained fraudulently is illogical – a closer reading of the country information indicates that primary documents are controlled to a higher level than the secondary documents such as diplomas that the sources set out in submissions refer to. Given this, the applicant has not provided a satisfactory, clear or consistent explanation for how he managed to arrange the issuing of these documents whilst he was in Australia, through his brother, which then allowed for the re-issuing of the passports in Australia. The quoted AAT decision does not assist here because that decision dealt with the situation where that person had filed a police report that his passport was stolen/lost but that person had not yet acquired an Iranian passport. Similarly, I do not find the statement in the airport interviewing officers’ report that the applicant provided his passport without hesitation to be compelling absent any context.
The applicant at hearing failed to describe in a plausible manner how he claims to have acquired genuine passports based on falsified anterior documents. Further, he failed to explain why he would have done so, given he could have acquired Iranian visas on the Australian TDVs he and his family held at that time. The applicant’s claims, I find, are entirely lacking in plausibility and I do not accept them.
I find rather that the evidence demonstrates that the applicant and his wife and children hold genuine Iranian passports. I make this finding aware of the high state of satisfaction required, but the evidence of the genuine passports appears clear, and the applicant’s claims that he obtained them through the use of false anterior documents is completely lacking in credit. I do not accept the applicant’s explanations for how he claims to have fraudulently acquired these passports to be true. I find that the genuine Iranian passports provided a sufficient basis to conclude that the applicant, his wife and children, hold genuine Iranian identity documents including the NICs which are referenced in the passports.
The evidence, in my view, does demonstrate to a high level of satisfaction that the passports are genuine, genuinely issued on the basis of genuine identity documents. As noted above the UNHCR handbook indicates that possession of passports which are not shown to be false or obtained through fraudulent means, is a strong presumption that the person is a national of a country. The passports provide a sufficient basis to reach a positive state of satisfaction that the applicant, his wife and children are Iranian citizens, that they therefore are not stateless as claimed, and therefore that the applicant breached s. 101 in the manner described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
the correct information
The correct information is that the applicant is an Iranian national, as are the other family members. I give this consideration no weight towards the visa not being cancelled.
the content of the genuine document (if any)
The genuine documents are the Iranian passports of the applicant and his family, which I find to be genuine and genuinely issued. I give this consideration no weight towards the visa not being cancelled.
whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant’s claims were based very significantly on his claims to be stateless and the abuses and difficulties for him and his family from this lack of citizenship and lack of access to services. I give this consideration no weight towards the visa not being cancelled.
the circumstances in which the non-compliance occurred
As the applicant has not conceded the non-compliance, there is no information before me about the circumstances in which the non-compliance occurred. I give this consideration no weight towards the visa not being cancelled.
the present circumstances of the visa holder
According to the submission, the family have made a life in Australia over the past seven years. Due to [the third applicant]’s disability and care needs, and [the second applicant]’s mental illness, [the first applicant] is the family’s sole income earner. The oldest child, [the fourth applicant], intends to finish school and then work to support the family. [The third applicant] is currently enrolled at the [Name] School, where he receives extensive support. [Ms A] will commence school next year. Only the eldest child has some fluency in Farsi. Readjustment to life in Iran would present profound difficulties for the family; particularly the children, whose education and social networks would be disrupted.
The circumstances of the applicant and the family are very difficult, as discussed in more detail below. I give this some 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 applicant has provided responses when requested and has engaged with the process. However, he has continued to deny the non-compliance. I therefore give this very little weight towards the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
None known. I give this no weight.
the time that has elapsed since the non-compliance
It has been a considerable period of time since the non-compliance, and I accept the submission above that the family have made a life in Australia. I give this some little weight towards the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
None known. I give this no weight.
any contribution made by the holder to the community.
The submission notes that the applicant has attempted to obtain qualifications to enable him to maintain regular employment. He has completed some qualification and is employed on a full-time basis. Whilst admirable I do not consider this a contribution to the community. I give this factor no weight towards the visa not being cancelled.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
whether there would be consequential cancellations under s.140.
[The second applicant] and [the third applicant] and [the fourth applicant]’s visas were consequentially cancelled under s.140(1). The submission highlights in this regard the effect of cancellation, and return to Iran, for [the second applicant]. I have had regard to the reports provided by [Drs A] and [B]. I accept that [the second applicant] has been diagnosed, and suffers from persistent major depression. I note the 21 May 2019 report of [Dr A] in which she states:
Medication and psychotherapy have hardly led to improvement of her mental status as her stress about her residency status and consequences of them being returned to Iran are ongoing and reality based. I believe that if [the second applicant] and her family were forced to return to Iran, it would have an extreme detrimental effect on their mental health. [The second]’s mental illness would most certainly worsen and impact her and her family’s quality of life and well-being, particularly her son with special needs who requires special treatment at a special school.
The submission notes, and I accept, that the Iranian health system has issues of lack of access and weaknesses in the system, specifically for women.
If the visas remain cancelled, a foreseeable consequence would be the return of the applicant and family to Iran. I have addressed the effect this would have on the children below. Here, I have had regard to the reports of [the second applicant]’s treating clinical psychologist and her GP, and the country information set out in the submission, which I accept, to find that the consequential cancellation, and foreseeable forced return to Iran of [the second applicant] would have very profound and serious consequences for her mental health, which I accept would be poorly treated in Iran for the reasons identified. This would also further impact on her ability to care for the children, particularly [the third applicant].
I give this factor significant weight towards the visa not being cancelled.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
In relation to the children, I note at the outset that despite me only having jurisdiction to review the first named applicant’s visa cancellation, because their visas were consequentially cancelled, their outcome follows that of the first named applicant and the children, including the youngest, therefore would be affected by the decision to cancel or not.
I have had regard firstly to the situation for [the third applicant], because as the submissions identify, his interests are specific and profound. [The third applicant] is under the care of [Dr C], a paediatrician of [a] Hospital. [Dr C] writes that [the third applicant] is diagnosed with intellectual disability, trauma in childhood, nocturnal enuresis, selective mutism, asthma, is overweight and has dental caries. The Doctor further writes that they support the family’s status being reinstated as [the third applicant] would not be able to access the medical and educational services he requires to address his medical and developmental needs if the family were to return to Iran. The Doctor has set out the range of specialised medical equipment [the third applicant] needs to effectively communicate as well as psychology and behavioural management.
[The third applicant]’s NDIS support coordinator [lists] the services to which he has had access over the past two years:
• Speech Pathologist – x2 ([Service provider 1] and [Service provider 2])
• Occupational Therapist – x2 ([Service provider 1] and [Service provider 2])
• Psychologist – family therapy training and individual therapy ([Service provider 1] and [Service provider 2])
• Individual support workers ([Service provider 3])
• School holiday programs – Disability specific ([Service provider 4] & [Service provider 5])
• [Service provider 6] referral – Child, Adolescent and family Team, [Region]. As a result of this referral, the family was referred to a Family Support Practitioner through the [Service provider 7].
• Specialist disability soccer clinic – [Name sport] club
• Specialist swimming lessons – [Service provider 4]
• OSHC school holiday program (Education Department) – Disability specific – [Name] Primary school. ([The third applicant] didn’t end up attending as the program was too far to travel for the family to pick [the third applicant] up).
In the report submitted, [the third applicant]’s psychologist [emphasises] the centrality of continued and stable care for [the third applicant]’s condition, and predicts a significant disruption in his development should the family return to Iran:
[The third applicant]’s family require ongoing appointments to complete the program and engage regularly with a clinician who has established rapport and an in-depth understanding of [the third applicant]’s behaviours and needs. These interventions will focus on strengthening the families understanding of [the third applicant]’s diagnosis, appropriate ways to support him and manage his behaviours and changing needs as he grows and develops. If [the third applicant]’s parents do not continue to receive services with a psychologist to support their role as carers, [the third applicant] is at risk of skill regression, isolation and distress due to being unable to communicate his wants and needs. In addition there may be an increase in aggressive behaviour towards family and carers as a form of communication and [the third applicant] may be unable to complete self-care and personal hygiene routines at an age-appropriate level of independence. [The third applicant] will likely experience difficulty engaging in his education and may not develop age-appropriate peer relationships. [The third applicant]’s family require continuity in care, to develop their knowledge of behaviour management and skill development strategies, putting these strategies into practice and problem-solving situations that arise as [the third applicant] develops into a young man. Without this continuity of care, [the third applicant]’s family will experience increased difficulty managing [the third applicant]’s behaviours, will be at risk of injury due to [the third applicant]’s aggressive behaviours and growing strength, particularly towards his sister and may experience social isolation and their own mental health difficulties due to the increased burden of care.
A report from [the third applicant]’s speech therapist makes similar points:
Due to [the third applicant]’s significantly delayed language skills, he requires maximal support from multiple professionals in order to teach him the skills required to complete daily living activities and to successfully communicate his basic wants and needs. These interventions also aim to support [the first applicant] and [the second applicant] to assist [the third applicant] in completing simple, daily tasks and possess the tools to support [the third applicant] and respond appropriately to his behaviours.
If [the third applicant] does not continue to receive services, particularly speech therapy, he is at risk of skill regression and social isolation. [The third applicant] will be at risk of not developing the language skills to enable him to express his needs and interact socially with his peers, education staff and family members. [The third applicant]’s family require continued knowledge and skills to deal with [the third applicant]’s high need for assistance with self-care tasks and challenging behaviours. [The third applicant]’s family will have an increased burden of care and have difficulty supporting [the third applicant] without professional assistance. Without continued speech therapy, [the third applicant] and his family will result in emotional distress and isolation from the community. [The third applicant] is also unlikely to develop age-appropriate communication and independence skills which will lead to increased funding support being required in the future and an inability to form meaningful relationships throughout his life.

The submission argues that [the third applicant] would not have access in Iran to the support he receives in Australia, rather that he would suffer serious discrimination and social exclusion.
This is supported by information from the most recent DFAT report:
People with Disabilities
Iran ratified the Convention on the Rights of People with Disabilities in 2009. There are no official statistics on the number of people living with disabilities. Unofficial sources estimate that as many as 12 per cent of Iranians have a disability of some kind. The Comprehensive Law on Protection of the Rights of Persons with Disabilities, adopted in 2004, commits the government to providing resources to meet disability needs and rights. The Law on the Protection of the Rights of Persons with Disabilities, adopted in 2018, increases disability pensions and insurance coverage to disability-related health care services; provides for government-funded vocational education for people with disabilities; and stipulates that new government- funded buildings must be accessible to people with disabilities. Article 111 of the Charter on Citizens’ Rights, introduced in 2016, states that ‘disabled persons must be given the opportunity and possibility to study and acquire skills appropriate to their capabilities. Disability must not lead to deprivation of the right to acquire knowledge and professional skills’. The Citizens’ Charter is not legally binding.
The State Welfare Organisation (SWO) has primary responsibility for the provision of services to people with disabilities. A number of other state agencies – such as the Ministry of Cooperatives, Labour and Social Welfare and the Committee for the Affairs of War Veterans – provide services to people with disabilities, including in rural areas. NGOs are also active. According to the Iranian Government, 662 NGOs provide services to people with disabilities in cooperation with the SWO and other state agencies.
Understanding of the needs of people living with disabilities is low in general society. Local sources told DFAT that people with disabilities face social stigma and encounter obstacles in accessing housing, employment and public transportation. According to foreign NGOs, children with disabilities, particularly girls and those with intellectual disabilities like autism, face barriers in accessing education and, in some cases, receive no education at all. Government-funded buildings built before 2018 are largely inaccessible to people with disabilities, and building accessibility for people with disabilities remains a problem more generally. Discrimination against people with disabilities is not outlawed explicitly and those with visual, hearing or speech disabilities are barred from registering as candidates for parliament. Provision of support services differs between different categories of the disabled: while those with disabilities resulting from war service receive tailored insurance coverage, others find this difficult to obtain. Vocational education centres for people with disabilities exist, but are concentrated in urban areas.[11]
[11] DFAT Country Information Report Iran, 14 April 2020.
The recent Human Rights Watch report on discrimination and lack of accessibility for people with disabilities in Iran lists multiple serious instances of discrimination, abuse and lack of accessibility to services for disabled persons, including those with intellectual disabilities.[12]
[12] Human Rights Watch, “I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran, HRW 2018, iran0618_reportcover_8.5x11_HIGHRES (hrw.org)
A further report by Human Rights Watch on disability discrimination in the school system in Iran demonstrates that many children with disabilities are excluded from the education system and stigmatised.[13]
[13] Human Rights Watch, ‘“Just Like Other Kids” Lack of Access to Inclusive Quality Education for Children with Disabilities in Iran’ available at
The submission goes on to emphasise that whilst there may be services of a limited nature in Iran, the submission notes ‘the emphasis placed by [the third applicant]’s professionals on continuous and stable care. Disruption in [the third applicant]’s care arrangements and the lives of his caregivers is likely to have a profound, life-long effect upon his development – perhaps to the extent of impairing future ability for speech and communication.’
I am not persuaded at all of the view of the first Tribunal that the return of the family to Iran in 2014 weakens their claims that it is very important that [the third applicant] remain in Australia and receive the care he needs here – the country information demonstrates that disabled persons in Iran including those with intellectual disabilities suffer very profound hardships as well as discrimination on a regular basis.
I have also had regard to the situation for [the fourth applicant], [the third applicant] and [Ms A]as children who have spent the majority of their lives in Australia and would be returning to Iran with little cultural context and, in the case of [the third applicant] and [Ms A], with limited facility to speak Farsi or another Iranian community language. If they were to return this would represent significant challenges and difficulties, and a profound need to readjust and learn Farsi and culturally appropriate behaviour.
Having had regard to the reports from [the third applicant]’s health care and allied professionals, it is clear that their view is that his return to Iran would severely compromise his ability to live a happy and meaningful life. Indeed, the country information demonstrates that he would be likely to live a life of exclusion and discrimination, with the potential to be denied education and health care. In my assessment, the best interests of [the third applicant], and [the fourth applicant] and [Ms A], are for them to remain in Australia with their parents. As urged by policy, I have considered this as a primary consideration when deciding whether to cancel the visa and I give this
I therefore give this factor very significant weight in favour of the visa not being cancelled.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The submission argues that the pervasive discrimination suffered by [the third applicant] gives rise to protection obligations in relation to [the first applicant]. I am not at all convinced by this argument. Whilst it is well accepted that harm or threat of harm to family members is capable of constituting persecution or significant harm, I am not convinced that the experience of pervasive discrimination against [the third applicant], and stigmatisation as a parent of a child with a disability, constitutes cruel and inhuman treatment towards [the first applicant]. The submissions do not clearly explain the mechanism by which this would occur.
Whilst I accept that [the third applicant] would suffer exclusion and discrimination, I am not convinced on the material before me that this rises to the level of serious or significant harm for [the first applicant].
I have considered whether the applicant and his family, as Iranian citizen Kurds who would be returning to Iran after a long period in a western country would face a real chance of serious harm.
The most recent DFAT report states:
DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities. DFAT further assesses that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities. Those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[14]
[14] DFAT Country Information Report Iran, 14 April 2020, 3.22.
And further, that Iran and Australia have signed an MOU on returns (whilst this would not apply to the applicants, it indicates to me a willingness of the Iranian authorities to engage with the process of return), resettlement assistance is available from IOM, the authorities pay little interest to returnees, and that people of ‘Western’ appearance or who have spent time in Western countries face a low risk of official or societal discrimination. [15]
[15] DFAT Country Information Report Iran, 14 April 2020, 3.137, 5.22 – 5.31.
I am not at all persuaded that the first named applicant will suffer serious harm amounting to persecution for any of the reasons claimed.
However, I do accept, as above, that [the third applicant] would suffer exclusion and discrimination. I am satisfied there are substantial grounds for believing that the returnee would be at risk of irreparable harm upon return on account of ill-treatment, cruel inhuman and degrading treatment in the form of social exclusion, active or passive denial of education, and denial or discrimination in health care.
In this regard I also note that there is a principle that heightened consideration should be given to children in the context of non-refoulement, and that [the third applicant], as a child, would suffer and experience such harm as is likely in Iran in a more profound manner than an adult.
I find that such treatment as [the third applicant] is likely to experience means he should be extended the protection of non-refoulement to protect him against the real risk of cruel, inhuman or degrading treatment as contemplated under the International Covenant on Civil and Political Rights[16] and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,[17] and the potential violation of his rights to a full and decent life as a disabled child,[18] education[19] and health care[20] under the Convention on the Rights of the Child.
[16] Art 7.
[17] Art 16.
[18] Convention on the Rights of the Child, Art 23.
[19] Convention on the Rights of the Child, Art 28.
[20] Convention on the Rights of the Child, Art 24.
As [the third applicant]’s visa would remain cancelled as a necessary and foreseeable consequence of [the first applicant]’s visa remaining cancelled, I consider this a relevant consideration in addressing the cancellation and I give this very significant weight towards the visa not being cancelled.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the visas remain cancelled, by operation of law (s.189) the family would be detained once any associated bridging visas have run their course. As noted in the most recent DFAT report, ‘Iran has a global and longstanding policy of not accepting involuntary returns.’[21] The MOU signed with Australia does not apply to these applicants. The applicants are effectively barred from making further visa applications. Detention is a likely consequence of the cancellation decision and may be for a considerable, potentially indefinite, period. The deleterious effects on mental health for detainees of continued unlimited detention are well recognised. I note also that [the second applicant] has serious mental health concerns and [the third applicant] has an intellectual disability and detention would be even more sever upon them.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
[21] DFAT Country Information Report Iran, 14 April 2020, 5.27.
I have dealt with the other matters of the effect of the cancellation decision on the wife and children of the applicant above in relevant places.
In this case it is clear that the applicant initially engaged Australia’s protection obligations on false pretences. This is a very serious matter which weighs very heavily towards the visa being cancelled.
However, the health of [the second applicant] and [the third applicant], and the profound harm that would befall [the third applicant] in particular were they to be returned to Iran, in this case, outweigh the breach.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Sean Baker
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 584

4 March 2021

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