1901012 (Refugee)

1901012 (Refugee) [2020] AATA 404 (18 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901012
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nora Lamont
DATE:18 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 18 February 2020 at 9:00am

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – Federal Circuit Court remittal – ground for cancellation – incorrect information in visa application – Iranian citizenship – family composition – consideration of discretion – grant of visa based wholly on incorrect information – ongoing non-compliance – knowingly repeated the same misinformation for over ten years – best interest of children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 426
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant knowingly and willingly provided incorrect information on his visa application form in order to obtain a protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
This matter was remitted by the Federal Circuit Court as the second respondent fell into jurisdictional error by failing to comply with s. 426(3) of the Migration Act as it failed to consider the Applicant’s request to call his son as a witness at the second hearing on 3 July 2017.
The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 Section 101 Visa applications to be correct in the following respects: the applicant claimed to be stateless but he holds Iranian citizenship.
Timeline of Claims & Untruths
Interview at [an Australian] Airport – [in] July 2009[1]
Claims:
- He is Kurdish and was born in IRAQ. The IRAQIS consider him to be Iranian and the Iranians consider him to be IRAQI. He is STATELESS
- His father, wife and child all live in IRAN.
- He has no relatives in AUSTRALIA.
- His mother and brother are deceased.
Protection Visa application – 14 August 2009
Form 866C[2]
[2] [Departmental file number] pages 18-32
- At Question 6, the applicant indicated that his place of birth was Baghdad or [another city], in Iraq.
- At Question 21, the applicant answered that he had ‘nil’ citizenship at birth.
- At Question 22, the applicant answered that his current citizenship at time of application was ‘nil’.
- At Question 23, the applicant answered ‘no’ in regards to whether he held any other citizenship or being a national of any other country.
- At Question 24, ‘If you are stateless, how, when and why did you lose your citizenship?’, the applicant answered: ‘I have never had a citizenship’.
- At Question 27, when asked what was his status in countries of former habitual residence or transit before arrival in Australia, the applicant responded ‘stateless’ in regards to Iran and Iraq.
- At Question 32, when asked if he has ever had, or used, any other passport or travel document besides the one used to enter Australia, the applicant stated ‘no’.
- At Question 41, when asked why he left Iran, the applicant answered ‘I left because I was fearful of serious harm due to my Kurdish ethnicity & my lack of legal status in Iran and for other associated reasons which I will explain fully in my statutory declaration to be provided shortly’.
- At Question 44, when asked why he thought he would be harmed if he went back to Iran, the applicant answered ‘I believe this will happen because of my Kurdish ethnicity & my lack of legal status in Iran and other associated reasons.’
- At Question 45, when asked if he thought the authorities of Iran will protect him if he returns, he answered ‘No. The authorities will not protect me. I have no legal status in Iran and it is the authorities in Iran that I fear harm from’.
- At Question 49, when asked if he had difficulties obtaining a travel document (such as a passport) in his home country, the applicant answered ‘yes’ and stated ‘I could not obtain my own passport because I don’t have any citizenship’.
- At Question 59, when asked if he has the nationality or citizenship of any country(s) other than the country(s) in which he claimed to fear persecution, he answered ‘no’ and that ‘I don’t have any citizenship or nationality’.
Form 866B[3]
[3] [Departmental file number] pages 1-17
- At Question 8, when asked ‘Are there any members of the family unit who are IN AUSTRALIA but are NOT included in this application?’ the applicant answered ‘no’.
- At Question 9, when asked ‘Are there any members of the family unit who are NOT in Australia at the time of application?’ the applicant answered ‘yes’ and provided the following family members:
- At Question 10, when asked ‘Do any of the persons included in this application and named in Question 1 have close relatives who are IN AUSTRALIA at the time of application?’ the applicant answered ‘no’.
- At Question 11, ‘Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?’ the application answered ‘yes’.
Statutory Declaration - declared on 21 August 2009 [4]
[4] [Departmental file number] pages 47-73
- Continued to claim he is ‘stateless’ (see paragraph 2)
- ‘About [number] days after I was born, in [year], my family move to Iran.’ (at paragraph 6)
- Both my parents were born in Iraq. However, neither of my parents nor myself ever had Iraqi citizenship, although my father had some kind of an Iraqi ID, which allowed him to travel inside Iraq and to work. My parents told me that once, before my birth, my father applied for Iraqi citizenship but his application was rejected and he was told to try again later. He did not get citizenship in Iraq before we were expelled.’ (at paragraph 7)
- ‘I think my grandfather may have had Iranian citizenship or some kind of recognition in Iran but I am unsure. He was deceased by the time my parents and I moved to Iran. My grandparents lived in Iraq before they died and I don’t know where they were born. It’s possible that my grandfather was born in Iran but I don’t really know. I know that my great grandfather was born in Iran.’ (at paragraph 8)
- ‘When we moved to Iran things were very difficult for us. When we arrived we settled on the outskirts of Tehran in a suburb called [Suburb 1]. I did not have any siblings so it was just me and my parents. My mother passed away in 1985 when I was [age] years old…’ (at paragraph 9)
- ‘Because we were Faili Kurds expelled from Iraq and we had no close living relatives in Iran my parents and I had no right to citizenship or lawful status in Iran. Living in Iran without documentation is a crime. My parents and I never tried to obtain citizenship. As far as we understood the situation, we had no legal entitlement to it and if we had tried, we might have come to the unfavourable attention of the authorities and been expelled back to Iraq or detained in Iran.’ (At paragraph 18).
- ‘As I have stated, I married my wife in 2004. She is also a Faili Kurd from Iraq. She has no citizenship rights in Iran or Iraq either…’ (at paragraph 24)
- ‘We now have a son who is [age] years old. I love my son and my wife. My son also has no citizenship rights, either in Iraq or Iran.’ (at paragraph 35)
- ‘I do not believe I can return to Iran or Iraq. I have no citizenship in either country. I am stateless.’ (at paragraph 46)
- ‘Also because I do not have a passport and am not recognised as a citizen of Iran, it may not even be possible for me to re-enter the country.’ (at paragraph 49)
Form 80: Personal particulars for character assessment September 2009 [5]
[5] [Departmental file number] pages 117-124
Question 6: Place of birth: Town/city – Baghdad or Khangin, Country: Iraq
- Question 8: ‘What is your current citizenship?’ – ‘stateless – nil’
- Question 19: ‘About your PARENTS’
Claims submissions by Victoria Legal Aid (Representatives) – 23 September 2009 [6]
‘… In addition, the fact that the applicant is Stateless has contributed to the persecution feared.’ (at paragraph 2)
- ‘To the extent that the applicant is at risk from private individuals, the Iranian state would be unwilling to protect him, given he is a stateless Faili Kurd.’ (at paragraph 4)
- ‘Details of [the applicant]’s birth in Iraq, his life in Iran and his travel to Australia are set out in his statutory declaration, which has been provided to the Department.’ (at paragraph 7)
- ‘As [the applicant] is stateless, his protection claims must be assessed against his country of former habitual residence. [the applicant]’s country of former habitual residence is clearly Iran, where he has lived since he was a small baby.’ (at paragraph 10)
- ‘In Iran, [the applicant] and his parents settled on the outskirts of Tehran. [the applicant]’s mother died when he was [age] years old.’ (at paragraph 13)
Protection Visa granted – 21 January 2010
Notice of Intention to Consider Cancellation (NOICC) – 25 November 2015
Response to NOICC – 26 November 2015 [7]
- ‘I did applying for protection visa as stateless refugees, which I am.’
- ‘My son has been born as stateless too, so because of Islamic rules any person born in Iran must have a parents in registered married so my wife had to pay a lot money to registered his name as our so and she choose father name as [Alias 1] which is Farsi name.’
- ‘*No citizenship of country is not allowed to apply for visa to travel to his own country, which I did for 3 months and paying visa fee…’
- ‘*The person you call [Mr E] is my brother the reason I didn’t bring his name at time of arrival, I have been told by my dad if I do, I might put his life at risk.’
Response to ITOA – 30 March 2016 [8]
- Near identical to above, but additionally:
- ‘[Mr E] is my brother the reason I didn’t bring his name at time of arrival, I have been told by my dad if I do, I might put his life at risk. I’m sure [Mr E] at the time he left Iran he was stateless too and after he applied for Iranian citizenship when he living in Australia with paying money and help one of his wife related.’
- ‘There’s no reason (at least in Iran) because brother holding citizenship another brother must hold citizenship.’
PV cancelled on 13 January 2017. The applicant applied for review with AAT on 23 January 2017 [9]
Submission from Applicant – 18 April 2017 [10]
- ‘Our family’s holding some documents for identity from Iranian government including my wife parent’s citizenship of Iran’.
- ‘This is exactly the thing happened to our family with born citizenship in Iraq then Saddam (leader of country at the time) decided to deport them in the country in week time with no notice and not allowed to sell their property’s and jailed and killed the young people including my wife uncle. So we both never believe and accept those documents as always worried to same thing could happen to us at any time.’
- Our visa been cancelled because of I holding Iranian citizenship with name of [Alias 1] and I have family member in Australia my brother [Mr E] and I used his passport to traveling to Australia witches both did not mention it at the time I applied for protection visa.
- I already explained to immigration at the time I applied for my family visa and by Iranian rule my child should have a parents on Iranian citizenship to be eligible to hold passports and my wife paying for that as we had no other way to bring my son to Australia and immigration department accepted that otherwise the visa should not never been issued and they could cancelled my visa at 2011.
- And the reason didn’t mention my brother name I been told by my smuggler if I do that my brother will be jailed and my visa will never be issued. And I was really scared and was stressed in detention.’
AAT Hearings – 26 April 2017 > 3 July 2017 (as per Decision Record)
- Continued to claim he was stateless
- Stated that his family consisted of:
- Left Iran with a passport given to him by people smugglers, as well as a second passport, [Mr E]’s, given to him by his father
- His grandfather lived in Iran but moved to Iraq for work where his father was born. When Saddam came to power they were expelled from Iraq and his father and his wife’s father came to Iran, before the Iraq-Iran war (in protection application, he stated he was [number] days old when he left Iraq in [year]).
- Applicant stated his parents received green cards when they moved to Iran, but that these were taken when away when the applied for permanent migration and were rejected. His father survived using documents obtained by bribing officials. He claimed his parents received genuine documents illegally
- The applicant received a Shenasnameh (ID/birth certificate) which stated he was born in [year] in Shah Ray, Iran – he is not sure if it is genuine and obtained illegally or fake document. He claimed his brothers and sisters got the same documents.
- Put to applicant that it appears his wife and son have Iranian nationality and on their cards it states he too has an ID number which suggests he is a national of Iran – applicant states ID number is from fake document (above)
- Put to applicant (adverse) that his brother [Mr E] had submitted to the Department a Shenasnameh, which states he was born in Shayr Ray and provides the date along with his father’s and mother’s name. – indicates he is a citizen of Iran. Applicant stated he wasn’t sure if genuine document or not – put to him that Australian government has determined it is genuine – applicant stated fraudulently obtained genuine document
- Sister‘s claim for protection that she is Iranian citizen
- Born in Tehran in [year] – applicant stated correct – if she is older than him and born in Iran, he was born in Iran – applicant stated correct – admitted he was born in Shahr Ray Iran – why did he state Khanequin or Baghdad? – smugglers told him to – his family told him when he was young he was born in Iran but suspects he was born in Iraq -
- Claimed he didn’t know what his sister said or claimed. But offered reason: his brother had animosity towards him and manipulated his sister by telling her that he had shown his ID documents to dept and been fine, therefore she would be fine – may have threatened sister not to fight to claim they had Iranian documentation – brother has severe drug addiction – act this way to harm him and sister
Tribunal decision – Affirmed
Federal Circuit Court decision – Remit by Consent – [date] January 2019
‘The Minister accepts that the Tribunal fell into Jurisdictional error by failing to comply with s 436(3) of the Migration Act 1958 (Cth) as it failed to consider the Applicant’s request to call his son as a witness at the second hearing on 3 July 2017.’
AAT file 1901012 – lodged 14 January 2019
Submission from Representative – 20 January 2020[11]
[11] AAT Folio pages folio 40-43
Provided correct information
- Admitted that decision to grant PV was based on incorrect information
- States that applicant provided wrong information on the advice of his elder siblings who arrived in Australia before him. He was told that his identity documents provided he would have remained in detention for several years
Tribunal Hearing
Prior to the Tribunal hearing the applicant’s representative sent in a letter to the Tribunal in which the applicant conceded that he had been an Iranian citizen since birth. The applicant conceded the following correct information: [12]
·The applicant was born in Shahr-e Ray
·The applicant is an Iranian citizen since birth
·The applicant’s representative included a family composition box in which he outlined the family and where their citizenship and their current location. It shows he has two brothers and a sister all Iranian citizens and living in Australia.
[12] AAT Folio pages 41-43

The document also stated the applicant understands the serious consequences of providing incorrect information and stated that he provided the wrong information on the advice of his elder siblings who arrived in Australia before him.
The representatives letter also stated the following:
·The applicant conceded he provided incorrect information to the Department.
·The applicant has not has any other instances of non-compliance. He has otherwise complied with his visa conditions.
·The non-compliance occurred when the review applicant applied for his protection visa in 2009. The applicant has lived in Australia for more than 10 years. His wife and children have fully embraced the Australian culture.
·The applicant has assisted many people during his time in Australia. He financially assisted [charitable organisation] for several months whilst he had a full-time job.
·He assisted aged people by [undertaking volunteer work].
·He worked voluntarily at his daughter’s kindergarten [several] times.
·He assisted many asylum seekers by finding them jobs and accommodation.
·He took care of his sister and her children when they first arrived in Australia.
At the hearing the applicant said it took him so long to provide the correct information as he was fearful of what would happen. He said he is a FailI Kurd and that he was working in Iran in [an industry].
The applicant’s wife also provided evidence at the hearing. The Tribunal asked her if she knew her husband had provided false information and she said she didn’t know. When asked if she knew it was wrong she said it was the wrong thing but she was fearful.
Assessment
The applicant did not present any claims at the Tribunal hearing. The applicant briefly spoke of being a Faili Kurd and discrimination but there were no new claims presented as to why the applicant feared return to Iran. Rather the focus of the hearing and the documents provided to the Tribunal were based around why the applicant should not have his visa cancelled.
The Tribunal has taken into consideration all of the evidence and submissions received.
For the following reasons, the Tribunal finds that there was non-compliance with section 101of the Act by the applicant in the way described in the s.107 notice and the visa should 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. Briefly, they are:
The correct information –The applicant is not stateless he holds Iranian citizenship. As outlined above the details of his continued assertion that he was stateless.
The content of the genuine document (if any)-- The applicant is not stateless he holds Iranian citizenship.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document—the decision was based wholly on incorrect information.
The circumstances in which the non-compliance occurred—the circumstances in which the non-compliance occurred. The applicant has continued to provide false and misleading information since the day he arrived in 2009 until 2020.
The present circumstances of the visa holder is that he is unemployed and has a wife and two children.
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 took over ten years to tell the truth to the Tribunal.
Any other instances of non-compliance by the visa holder known to the Minister- there is no other non-compliance known by the AAT.
The time that has elapsed since the non-compliance—the applicant continued to tell the Department, the AAT and the Federal Circuit Court the same misinformation for over ten years. The Tribunal adds weight to this as the amount of time that the applicant continued to tell untruths was so long and continuous. The non-compliance has been ongoing for over ten years.
Any breaches of the law since the non-compliance and the seriousness of those breaches The applicant has not had any further non-compliance however the applicant continued the non-compliance for over ten years and in numerous statutory declarations and before the Department, the AAT and the court.
Any contribution made by the holder to the community. The applicant has forged a life in Australia and has worked; he has stated that he has contributed by donating blood, volunteered at his child’s child care centre, [undertook volunteer work] for the elderly and assisted asylum seekers including his sister. [13] The Tribunal has given some weight to these factors.
[13] AAT Folio page 48
The applicant also told the Tribunal that he was active with the Kurdish Feyli community, however no evidence of this was provided at the Hearing and the Tribunal requested verification. A letter dated [in] January 2020 was received stating that the applicant had been a member of the Kurdish Feyli community since [2017]. The Tribunal accepts that the applicant has participated in some capacity for the past two to three years within the Kurdish Feyli community.
The Tribunal received a Statutory Declaration from [a named person] who met the applicant in detention in 2009. He states that the applicant is an honest and trustworthy friend and devoted family man and husband. The Tribunal also received a Statutory Declaration from [an] English tutor who has assisted the applicant’s wife with English. She states that the applicant and his wife place a high value on their children’s education and the family has acclimated and wishes to stay in Australia.[14]
[14] AAT Folio page 38
The Tribunal also received a Statutory Declaration from [a named person] who states that the family is responsible and active members of the community who are trying hard for their children.[15]
[15] AAT Folio page 37
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.
Consequential cancellation
The Department’s guidelines set out other additional matters that should be taken into account where relevant. This includes whether there are other persons whose visas may be cancelled because they are family members, mandatory legal consequences to a cancellation decision, for example detention as well as whether indefinite detention is a likely consequence of the cancellation decision.
The Tribunal has weighed all the evidence and arguments presented in this case. The Tribunal feels compassion for the family and in particular the children. The applicant’s wife and oldest child will have their visas cancelled consequentially under s.140 of the Migration Act.
The Tribunal is aware of the impact this cancellation affirmation will have on the family. However, the Tribunal has placed weight on the fact that the applicant knowingly continued to tell the same untruths over and over again, year after year, and was complicit with his family members who are in Australia in continuing to claim these falsehoods. The applicant has had no regard for the integrity of the migration program and has not presented any claims for protection based on the truth. The Tribunal also notes that the applicant’s wife was also aware of these untruths and remained silent. When asked if she knew it was wrong she said she didn’t know she was just fearful.
Return to Iran
The Tribunal acknowledges that the applicant will face challenges re-establishing himself in Iran but he does have relatives there who can support and assist him. Considering that the applicant has continually provided incorrect and bogus information for eleven years the Tribunal places considerable weight in favour of exercising the discretion to cancel the visa.
Further, the applicant held a job and lived in Iran for his entire life before coming to Australia. There is no indication before the Tribunal that the applicant cannot return and get employment.
The Tribunal has no information before it that the applicant or his family will suffer any mistreatment as Faili Kurds upon return to Iran. DFAT concludes that they are not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. [16]
[16] DFAT Thematic Report Faili Kurds in Iraq and Iran 3 December 2014.
The Tribunal has turned its mind to the provisions of the Act that would prevent the applicant from making a valid application for any visa without the Minister personally intervening. In this applicant’s case these are s 48, s 48A and s 189. When exercising these provisions the applicant will not be able to make any further lawful applications nor be issued any further visas other than those prescribed or without Ministerial intervention and therefore, he may be detained.
Whilst detained the applicant has the option of returning to Iran. If he chooses not to involuntary return becomes a possibility. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention due to the Iranian regime’s refusal to accept involuntary returnees. However, in this case the Tribunal finds it does not. The applicant is an Iranian citizen and whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.
Non Re-foulement Obligations
Australia would not be in breach of its non-refoulement obligations according to the International Treaties and Obligations Assessment (ITOA). The Tribunal does not believe that by removing the applicant and his family to Iran they will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.
Best Interests of the Children
The Tribunal has taken into consideration the Convention on the Rights of the Child (CROC)[17].
[17] >
In coming to a decision the Tribunal has taken into consideration the best interests of the two children involved. The applicant’s oldest child was born in Iran and holds Iranian citizenship whilst the youngest daughter was born in Australia and holds Iranian and Australian citizenship. The oldest child is entering [a certain] year at [school] and loves to play soccer. He does not wish to return to Iran and wants to live his life in Australia. After the hearing he showed the Tribunal some certificates he had received. The applicant told the Tribunal that the children don’t really know how to read or write Farsi.
Iran offers soccer (they call it football) and plays on the world stage. Tehran has five major teams that play. [18] Tehran also offers museums, cinemas, fitness centres, bowling alleys and all modern day society events. [19] The applicant’s son and daughter will be able to attend school and university. Whilst the Tribunal notes that they would prefer to stay in Australia there is no valid reason for the applicant’s not to return to Iran to live.
[18] >
The Tribunal notes DFAT reports that in Iran provides both public and private educational institutes at primary, secondary and university level. Standards in science, technology, mathematics and engineering are among the worlds highest. [20]
[20] DFAT Country Information Report Iran 7 June 2018
The applicant’s youngest daughter was born in Australia but is entitled to Iranian citizenship as she was born to Iranian parents. As she is young she will not have as many issues integrating into Iranian society. [21]
Wife’s mental health
[21] >
The applicant’s wife has mental health issues. She stated she was studying in school but has had depression. She cried during the hearing. The Tribunal received a letter from her physician stating she suffers from [deleted].[22]
[22] AAT Folio page 39
Whilst the Tribunal acknowledges that the applicant’s wife has mental health issues Iran offers mental health services which has been integrated into their primary health care system since 1988.[23] The Tribunal considers the applicant’s wife can receive adequate mental health care in Iran.
Conclusion
[23] >
The Tribunal considers that the gravity of the non-compliance is extremely high, after eleven years of continuing to tell the same untruths seriously undermines the integrity of Australia’s migration process.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Nora Lamont
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 404

18 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction