1901883 (Refugee)
[2021] AATA 3216
•2 September 2021
1901883 (Refugee) [2021] AATA 3216 (2 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1901883
COUNTRY OF REFERENCE: Iran
MEMBERS:Deputy President J.L Redfern PSM (Presiding)
Denis Dragovic, Senior MemberDATE:2 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 2 September 2021 at 9:30 am
CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – cancellation under s 109 of the Migration Act – Iran – applicant claimed to be a stateless Faili Kurd – whether incorrect information provided – applicant conceded he was an Iranian citizen since birth – consideration of prescribed circumstances –best interests of Australian citizen children as primary consideration – consideration of amendments introduced by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) – whether prolonged detention is a legal consequence in circumstances where a protection finding has previously been made – Australia’s non-refoulement obligations – decision under review set aside and substituted for a decision not to cancel the visa
WORDS AND PHRASES – meaning of “protection finding” – consideration of ss 197C(3) and 197D(2)
CASES:
2005388 (Refugee) [2021] AATA 2712
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384
CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083
Commonwealth of Australia v AJL20 [2021] HCA 21
DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184
CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Promsopa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480
Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409
Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
XDJD and Minister for Immigration and Border Protection (Migration) [2021] AATA 2882LEGISLATION:
Migration Act 1958 (Cth), ss 48, 48A, 109, 101, 102, 103, 104, 105, 107, 195, 195A, 197AB, 197C, 197D, 198, 440
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth), reg 2.41SECONDARY MATERIALS:
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Department of Foreign Affairs and Trade, DFAT Country Information Report Iran,14 April 2020
Department of Home Affairs, Procedures Advice Manual, Act - Compliance and Case Resolution – Case Resolution – Minister’s Powers – Minister’s Residence determination power.
Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)Explanatory Memorandum for the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Revised Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Supplementary Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 440(1) of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2019 to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (the Act).
The applicant is a [X]-year-old-male. He arrived in Australia with his pregnant wife, [redacted], as unauthorised maritime arrivals. They both made applications for protection and were granted Subclass 866 Protection visas on 30 November 2009. A delegate of the Minister formed the view that the applicant and his wife had not complied with s 101 of the Act and issued them with separate Notices of Intention to Consider Cancellation in September 2018. The notices were similar in their terms and relied on concerns about the identity of the applicant and his wife and claims made by them that they were stateless Faili Kurds.
The delegate cancelled both visas on the basis that the applicant and [his wife] were found to have provided incorrect answers relating to their identity, specifically that they were not stateless as claimed and instead were citizens of Iran. The applicant and [his wife] applied to this Tribunal for review of the decisions of the delegate. Even though these cases were related because both cases raised common factual issues and witnesses, this was not identified at the time of constitution and the cases proceeded separately. The application for review for [his wife] was finalised in May 2021 by the Tribunal, differently constituted. The decision under review was affirmed.
Because the applicant’s review raised a number of contentious issues, it was constituted to a multi‑member panel. The applicant appeared before us on 3 August 2021 to give evidence and present arguments. He was self-represented and was assisted by an interpreter in the Persian (Farsi) and English languages. The applicant’s wife, [redacted], also attended the hearing and gave evidence. The applicant and [his wife] have two Australian‑born children who are Australian citizens. One, a daughter, is nearly [X] years old, and the other, a son, is nearly [X] years old. While neither are parties to this application, both will be impacted by any outcome. Prior to the hearing, we invited the applicant to arrange for his daughter to give evidence to the Tribunal if she wished to do so. The applicant declined, which is understandable given his daughter’s young age. We asked the applicant and [his wife] during the hearing about the children and their interests.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, we have concluded that the decision to cancel the applicant’s visa should be set aside and substituted with a decision that the visa should not be cancelled. In essence, we have found that the ground for cancellation is established, which is conceded by the applicant, but that the relevant discretionary considerations prescribed by law and government policy weigh against cancellation.
CONSIDERATION OF CLAIMS AND EVIDENCE
Subsection 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.
When the Minister, or a delegate of the Minister, issues notices to visa holders before cancelling a visa, the notices generally contain particulars of the grounds for the proposed cancellation and are provided to give the visa holder the opportunity to respond to the issues raised. These notices are commonly referred to as a Notice of Intention to Cancel (NOICC). Notices issued under s 107 of the Act are also referred to as NOICCs.
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 this case, the delegate issued a NOICC dated 20 September 2018. The NOICC contained particulars of non-compliance with s 101 of the Act based on inquiries made by the delegate about the applicant’s claims to be a stateless Faili Kurd. Having regard to the material before us, we are satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the NOICC issued under s 107 complied with the statutory requirements. These matters are not in dispute.
Accordingly, the questions for determination are:
(1)Was there non-compliance as described in the s 107 notice?
(2)If so, should the visa be cancelled?
Procedural matters
The applicant was originally represented by the Asylum Seeker Resource Centre. They assisted the applicant in lodging his review and made an application for access to the Department file through a freedom of information application. Access was provided. Even though the Asylum Seeker Resource Centre ceased acting for the applicant, they assisted him in responding to the Tribunal’s hearing invitation and in the preparation of a statement, which was lodged with the Tribunal on 28 July 2021.
Prior to the hearing, we identified information in the Department file which we considered relevant to the review and, in particular, to the question of whether the ground for cancellation was established. This information was the subject of a non-disclosure certificate issued by the Department under s 438 of the Act and comprised an identity assessment report by the Department and a shenasnameh (birth certificate) in relation to [the applicant’s wife], which referred to the applicant as her spouse. We formed the view that the non‑disclosure certificate was not valid but highly relevant to the review and released the information to the applicant, subject to redactions relating to the personal information of others and details of the Department officers who made the identity assessment. We also formed the view that the decision made by the Tribunal in respect of [the applicant’s wife] was relevant to the review because it referred to evidence given by [his wife] about a number of the issues which were also the subject of consideration in the applicant’s review. A copy of this decision was released to the applicant, together with a direction pursuant to s 440(1) of the Act directing that any information identifying [the applicant’s wife] must not be published.
After service of these documents, the Tribunal received a statement declared by the applicant on 28 July 2021 in which he acknowledged that he did not provide correct information in his application for a protection visa. He also stated, amongst other things, that he was not stateless and that he was a citizen of Iran by birth. In addition, this statement included evidence and submissions made by the applicant addressing the discretionary considerations and was of considerable assistance to us in focusing on the determinative issues that were in dispute.
The applicant’s name
It is important to clarify the applicant’s name as a preliminary issue as the Department concluded that he is not ‘[redacted]’ but rather [redacted]. At the hearing, the applicant explained that [redacted] is his name as it is comprised of his given name, [redacted], his father’s name, [redacted], and is grandfather’s name, [redacted].
When asked about the name [redacted], a name that the Department found was common to some of his relatives and the name that he and his wife chose to give to their daughter, he explained that this was the Iranian name given to their family when they crossed the border from Iraq to Iran. He explained that at the border the Iranian guards randomly chose names and assigned them to each adult as they crossed. The applicant’s preference of the name [redacted] aligns with independent information regarding naming conventions reviewed by this Tribunal.[1] As such, we accept that the applicant’s name is [redacted].
[1] A guide to names and naming practices, March 2006 available at there non-compliance as described in the s 107 notice?
The first issue before the Tribunal, as required for decision under s 108 of the Act, is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the NOICC dated 20 September 2018.
The applicant arrived in Australia as an unauthorised maritime arrival on the 17 October 2009. He subsequently applied for a protection visa by completing an application dated 16 November 2009. The visa was granted on the 30 November 2009.
The non-compliance identified in the NOICC was non-compliance with s 101(b), which provides that “[a] non-citizen must fill in or complete his or her application form in such a way that … no incorrect answers are given or provided”. The non-compliance was particularised in the NOICC as follows:
Particulars of the non-compliance
34. Specifically I consider that you have provided incorrect information in response to:
35. At question 19 of Part C of the Form where it asks for your “Citizenship at birth” you answered “Stateless”.
I consider this answer to be incorrect as I consider that you are an Iranian citizen and were so at birth. As such you are not stateless as claimed.
36. At question 21 of Part C of the Form where it asks “Do you hold any other citizenship or are you a national of any other country?” you ticked the box denoting “No”.
I consider this answer to be incorrect as I consider that you are an Iranian citizen and were so at the time of your Protection visa application.
37. At question 22 in Part C of the 866 Form where it asks: “Do you have the right to enter or reside in, whether temporarily or permanently in any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” you ticked the box denoting “No”.
I consider this answer to be incorrect as I consider you are an Iranian citizen and were so at the time of your Protection visa application.
38. At question 42 of Part C of the 866 Form where it asks: “Why did you leave that country?” you answered “See statement”. In the statement of claims which you refer to you claimed that you had no rights in Iran and were never granted citizenship. You further claimed that you were unable to attend school nor work legally due to your stateless status. I consider this answer incorrect as the department as it appears you are an Iranian citizen and not a stateless Faili Kurd as claimed.
39. At question 43 of Part C of the 866 Form where it asks: “What do you fear may happen to you or your accompanying family members, if you go back to that country?” you answered, “See statement”. In the statement of claims which you refer to, you claimed you would be jailed, interrogated and possibly executed because you are an undocumented Faili Kurd. I consider this answer incorrect as the department has evidence that you are an Iranian citizen and not a stateless Faili Kurd as claimed.
40. At question 45 of Part C of the 866 Form where it asks: “Why do you think this will happen to you or your accompanying family members if you go back?” you answered “See statement”. In the statement of claims which you refer to, you claimed you would be harmed because you were a stateless Faili Kurd.
I consider this answer incorrect as I consider that you are an Iranian citizen and therefore your claims of persecution due to being an undocumented stateless person are unsupported as you did not hold this adverse profile at the time of application or grant of your Protection visa.
In addition, the NOICC identified the signing of the declaration by the applicant acknowledging that the information provided was correct as another example of him providing incorrect information. Relevantly, at question 65 of the application, it is noted as follows:
The information I have supplied on or with this Part C of the Form 866 is complete, correct and up to date in every detail.
………………
I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
In the declaration section of the form, it is noted as follows:
And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
Having reviewed the particulars contained in the NOICC and the answers given by the applicant in his application, we are satisfied that the NOICC accurately sets out the answers provided by the applicant. We are also satisfied, in the absence of evidence to the contrary, that the applicant signed the relevant declaration.
The applicant was invited to respond to the NOICC, which he did through his then representatives by way of a submission dated 19 November 2018. Relevantly, the submission maintained the claim that the applicant was stateless. The applicant’s visa was cancelled on 16 January 2019.
In a statement provided to the Tribunal prior to the hearing and in his sworn evidence at the hearing, the applicant conceded he had provided incorrect information in his application for protection. He stated that he is a Faili Kurd, but he is not, and never was, stateless, and is, and was at the time of his application for the protection visa, a citizen of Iran.
The concession made by the applicant in his statement and his evidence in the hearing is consistent with the information contained in the identity assessment report, the shenasnameh and the evidence given by [the applicant’s wife] to the Tribunal (differently constituted).
Section 101 provides:
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.
We find that the applicant answered all questions in the application for the protection visa dated 16 November 2009 but provided incorrect information in answer to questions 19, 21, 22, 42, 43 and 45, and his declaration that the information provided was correct at question 65 was also incorrect. This was the non-compliance particularised in the NOICC dated 20 September 2018.
As such, we find that there was non-compliance with s 101(b) by the applicant in the way described in the NOICC, which was a notice for the purposes of s 107 of the Act, and we are satisfied that the ground for cancellation has been established.
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) of the Act. Cancellation is discretionary, and there are no circumstances prescribed under s 109(2) of the Act that make cancellation mandatory.
Subsection 109(1) provides that in exercising the power to cancel, the Minister, and therefore the Tribunal, must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and must have regard to any prescribed circumstances. The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations) as follows:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Our consideration of these matters follows.
The correct information
The correct information is that the applicant is a citizen of Iran by birth and is not stateless as he had claimed in his application form. As this is a question central to the identity of the applicant and forms the basis of his claim for protection, we place considerable weight in favour of cancelling the applicant’s visa.
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 statement accompanying the protection visa application claimed he was a stateless Faili Kurd.
The decision of the delegate that the applicant engaged Australia’s protection obligations led to the grant of the applicant’s protection visa. The decision record does not give reasons for the finding, although a document dated 28 November 2009 headed ‘Refugee Status Assessment Record’ authored by the delegate is attached to decision record.[2] This assessment relates to the applicant and [his wife]. It records that the author was satisfied the applicant and [his wife] were stateless and that their fear of persecution, which had the relevant Refugee Convention nexus, was well-founded because there was country information to the effect that Faili Kurds who did not have Iranian citizenship would face a real chance of serious harm, and therefore persecution, if they were to return to Iran.
[2] BCC2018/4448152 folio 31
Having regard to the findings of the delegate, we find that the decision to grant the visa was substantially based on incorrect information. This is a significant factor which goes to the heart of the integrity of the visa program. Department officials must be able to rely on information provided to them by visa applicants so they can properly assess claims made. Granting visas on the basis of incorrect information may unfairly prejudice other visa applicants who are waiting for their visas to be processed and provide an unfair advantage to applicants who would otherwise not be entitled to a visa. For this reason, we are of the view that this weighs in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
At the hearing, the applicant explained that he had heard prior to leaving Iran that he would need to claim to be stateless to obtain protection in Australia. He said that he also heard it from the smugglers. In his statutory declaration, he wrote:
I was told by the people smugglers on the boat to Australia what to say in order to obtain a protection visa. They told me that if I said I was stateless, then I would be more likely to be granted the visa, and so I did this without thinking of the consequences at the time as I felt that I could not return to Iran. My wife was pregnant, and I did not want to be sent back so close to the baby being born.
The applicant said that he did not have a good life in Iran. He said that he married his wife, and after she became pregnant, he decided to leave Iran and travel to Australia for a better life and more opportunity.
The applicant said that at the time he completed the application, he did not believe it was a problem to lie regarding his citizenship, describing this as a simple lie because he is a Faili Kurd, although not stateless. He also said that if he had provided the correct information, he believes he would not have obtained a visa to Australia.
The applicant did not say that he was coerced or misled into providing incorrect information, nor is there any material before us to this effect. At best, the applicant may have believed he had little choice once he and [his wife] were on the boat and had landed on Christmas Island because she was eight and a half months pregnant at this time. However, we find that the applicant provided the information knowing it was incorrect with an intention to benefit. The applicant sought to justify this in his evidence at the hearing, but this does not minimise his responsibility for consciously making a choice to obtain the visa and avoid being sent back to Iran. This factor weighs in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
While the phrase ‘present circumstances’ does not appear to connote a forward‑looking analysis extrapolating what may happen in the near or reasonably foreseeable future, those circumstances would nonetheless be broad enough to encompass consideration of the spectre of certain events occurring in the future. In other words, the uncertainty of an applicant’s present circumstances would clearly fall within this consideration, but matters such as the consequences, or potential consequences, of cancellation extend beyond this and are more conveniently examined later in these reasons when we consider government policy about how the discretion should be exercised in cases such as this.
We have therefore confined our consideration of this factor to the applicant’s known current circumstances.
The applicant has two children, both born in Australia. They are Australian citizens. The eldest is [age], a daughter, and the youngest is [age], a son. The applicant is currently working. He is a handyman. The family has not travelled back to Iran since the applicant and [his wife] first arrived in Australia in 2009.
The applicant also claims that he has suffered from sciatica and that he suffers from depression and anxiety. He has had an operation on one knee but otherwise he has not sought treatment for past injuries nor is he receiving any treatment currently. In relation to his claims of anxiety and depression, the applicant said that it was suggested to him by a registered nurse in a health clinic that he consult a psychologist. He has not been formally diagnosed by a specialist, and apart from sleeping pills that have been prescribed by his doctor, he has not received any specific treatment for his claimed mental health issues. When asked about the cause of his mental health challenges, the applicant said he was unwilling to discuss them, but said they were present prior to his visa being cancelled. We accept that the applicant has sciatica and mental health issues.
[The applicant’s wife], who is also an Iranian citizen, suffers from multiple sclerosis for which she is receiving treatment in Australia.
The applicant described his wife’s condition and said that the treatment she was receiving in Australia is helping her. He does not believe this treatment would be available to her in Iran as it would cost too much. This claim is supported by independent information.[3] The applicant told us that following his wife’s diagnosis, he became closer to his family as he took on a more prominent role in the care of the children and in his wife’s care. This was at least one positive aspect of their changed circumstances.
[3] Gharibi, F., Imani, A. & Dalal, K. ‘The catastrophic out-of-pocket health expenditure of multiple sclerosis patients in Iran’. BMC Health Serv Res 21, 257 (2021)
[The applicant’s wife] gave evidence regarding her condition. She described the impact of her condition upon her family life as being that when she is in pain, she cannot get out of bed, or when she does, she is unhappy, and this affects her family. A letter from Dr [readcted], neurologist, [Medical clinic], was submitted by the applicant following the hearing. The letter, dated 15 July 2021, explained that multiple sclerosis involved the gradual accrual of irreversible neurological disability. The treatment that the applicant’s wife is being provided aims at stabilising the disease, but it does not improve existing symptoms. Dr [redacted] explains in the letter a long history of various treatments which have culminated in the applicant’s wife currently receiving the infusion therapy, Ocrelizumab. She adds:
I would like to make it very clear that, in my professional opinion, [redacted] is completely reliant on this immune-modifying biologic therapy for management of her MS. It is extremely likely that [redacted] will experience significant demyelinating relapse, deterioration and rapid accumulation of neurological disability, if access to this treatment is interrupted.
The Iranian-manufactured version of Ocrelizumab has completed Phase III clinical trials in Iran. There is no information regarding when it will be available on the commercial market.[4]
[4] ‘Clinical Trial Protocol Iranian Registry of Clinical Trials’ 05 Aug 2021
Dr [redacted] listed the current impact of the disease on the applicant’s wife as including dizziness, poor balance, sensory loss, neuropathic pain, left hemiparesis (weakness or the inability to move on one side of the body), memory loss, neurological fatigue, mood disturbance and loss of confidence.
[The applicant’s wife] has had her visa cancelled and the decision has been affirmed by this Tribunal, differently constituted. Her medical condition and the question of whether she will suffer hardship or inferior medical treatment if she must return to Iran because her visa has been cancelled is relevant to the exercise of the discretion in her cancellation proceedings but does not otherwise have direct or immediate relevance to the applicant’s case. The question that arises is whether [the applicant’s wife’s] medical condition has an impact on the applicant’s present circumstances, or one of the other prescribed circumstances, and whether this is a factor that may weigh against or in favour of cancellation.
[The applicant’s wife] has lodged an application for judicial review and is currently on a bridging visa pending the determination of her appeal. According to Federal Circuit Court records, her application is listed for directions on 28 February 2024 and, unless the Minister decides to withdraw from the defence of the judicial review and consent to a remittal back to this Tribunal, her case is unlikely to be determined before 2024. She will remain in Australia pending her appeal. We accept that the applicant provides care for her and has taken on a prominent role in the care and support of the children because of his wife’s illness.
In short, the applicant’s present circumstances can be described as follows.
He and his family have lived in Australia as a family unit since 2009. His children are Australian citizens and his eldest daughter has been educated in Victoria. They are part of the Australian community. He works and cares for his wife and children. His wife has a debilitating illness that will deteriorate over time. Her visa has been cancelled and the decision of the delegate has been affirmed. While there is no medical report to this effect, we accept that the uncertainty about both visa cancellations has the potential to exacerbate the applicant’s mental health issues. When taken together, these matters weigh against cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C, namely ss 97 to 115 of the Act, contains provisions relating to the cancellation of visas based on incorrect information. These provisions include an obligation to provide correct answers in a visa application (s 101), not to provide bogus documents (s 103), an obligation to notify the Department about a change of circumstances such that information in an application becomes incorrect (s 104), and an obligation to notify the Department about any incorrect answer and to provide the correct information when the non‑citizen becomes aware the information was incorrect (s 105).
It is not apparent on a plain reading of s 104 that this section would apply and s 105 seems to contemplate the circumstance when a visa holder becomes aware of falsity in the applications rather than where the visa holder knowingly provided the incorrect information. A notice under s 107 and any response provided in respect of such a notice clearly falls within this circumstance as it is “subsequent behaviour” of the visa holder concerning his or her obligations under, relevant to this case, s 101(b) of the Act.
The applicant was first notified of having provided incorrect information in 2018 by way of the NOICC. At this first stage of being presented with information challenging his claims, the applicant explained at the hearing that he chose to maintain the position that he was stateless. He said that a close relative told him that it was better not to tell the truth.
That the applicant continued to maintain his claim of being stateless despite being confronted by the Department with information and being specifically asked about the answer is concerning. In addition, it is of note that the applicant concocted substantial responses to the Department’s NOICC that were submitted by his representative. This was not a lie of omission, but one undertaken with intent. Against this, the applicant set out the correct information in the statement provided by him prior to the hearing and in his evidence. He was remorseful and volunteered information about his personal circumstances that were adverse to his interests. While this redeems the position somewhat, this is still a factor that weighs in favour of the visa being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister
There are no instances of non-compliance known to the Tribunal. Being a minimum expectation of all visa holders, this carries little weight against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant arrived in Australia at the age of [X] years. Since arriving, he has spent 12 years in Australia. This is a third of his life or more than half of his adult life. It is apparent he and his family have built connections with the community since this time. This is a factor that would tend to weigh against cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
In his evidence at the hearing, the applicant volunteered information about breaches of the law. These matters were not referred to in the delegate’s decision. He said that he lost his driver’s licence for 15 months for driving while intoxicated and was fined $500. He recalled that this was in 2014 or 2015. He said that it was the only time he drank and drove. He said that the judge asked for an interlock (breath test lock) to be placed on his car for six months after the 15-month suspension. The applicant said that the incident occurred when he and his wife had broken up for a period and that this was the reason he was drinking. He said that they reconciled after this and since this time he has not drunk alcohol and driven.
He also said that he had been recently charged with possession of two marijuana plants. He said that he grew them for personal use to make tea for his anxiety and to alleviate his wife’s pain from her illness and thought this was permitted. The applicant explained that the plants never grew large enough for them to brew tea. The police learned about the plants and he was called to attend the police station. The applicant said he is facing an October court date which he understands will lead to a $300 fine for each plant. He intends to plead guilty and will accept the penalty. Based on the evidence provided by the applicant, and in the absence of evidence of any conviction, sentence or fine, we cannot make a meaningful assessment about whether there have been breaches of the law in this matter and, if so, the seriousness of those breaches.
While the applicant concedes he has breached the law in the past, we place limited weight on these matters in favour of cancellation. There is no evidence that the applicant’s drink driving has recurred, nor is there evidence about the outcome of the outstanding charge.
Any contribution made by the holder to the community
Despite the Tribunal providing the applicant with numerous examples of what contributions to a community may entail, the applicant did not identify any mechanisms through which he contributed to the community. Instead, he said that he never offended anyone. He said that he helps those who ask for help and helps his neighbour who is a drug addict when his neighbour asks.
The applicant has been at various times employed and unemployed. He has worked for several years in Australia as a gardener, mechanic, bus driver and carpenter as well as being on unemployment or carer benefits for about two years.
While the applicant has been employed, we only place limited weight on this as his employment was to support his family with a peripheral contribution made to the community by way of providing services and paying taxes. There is no indication that the applicant made a choice to pursue his career path, sacrificing other options, so as to support the community.
The applicant said that he has a Centrelink debt of two years because he did not notify them of the change in his visa status when his visa was cancelled. The debt arises from support that was provided as he has been a carer for his wife since 2018. We do not have sufficient information about this debt to form a view about whether this would be a breach of the law or whether this debt would be liable to be set aside or varied if we set aside the decision under review. In the absence of any evidence about this or information from the Department about these matters, we cannot make any meaningful findings on this issue. In any event, having a debt to the Commonwealth is not relevant to this circumstance. This is because reg 2.41 directs attention to “any contribution”, not to the converse position.
Overall, this factor does not weigh for or against cancelling the applicant’s visa.
Other considerations
While the factors specified in reg 2.41 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. We should also have regard to lawful government policy. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be taken into account before making a decision to cancel a visa. The relevant policy is set out in the Department’s Procedural Instruction ‘General visa cancellation powers s 109, s 116, s 128, s 134B and s 140’.
As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the particular circumstances of a case.[5] We could not identify any such reasons, and the policy issued by the Department on the exercise of the discretion to cancel is both relevant and persuasive.
[5] Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634 (‘Re Drake No 2’)
The policy refers to the following matters:
(1)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.
(2)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
a.if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision‑makers are obliged to treat as a primary consideration the best interests of the children.
b.whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.
(3)Whether there are mandatory legal consequences to a cancellation decision, for example three examples:
a.whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non‑refoulement obligations;
b.whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P); and
c.whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189, and liable for removal under s 198.
(4)Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).[6]
[6] Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) at [4.1]
Notably, all of these matters relate to the consequences of cancellation.
We now turn our mind to these insofar as they are relevant, noting that all but the first are relevant in this case, there being no consequential cancellations under s 140 of the Act that would result from the applicant’s visa being cancelled.
Mandatory legal consequences
If the applicant’s visa is cancelled and he exhausts any rights of judicial review and his bridging visa ceases, he will become an unlawful non-citizen. This will be the case unless and until he obtains another visa allowing him to remain in Australia and this is a mandatory legal consequence of the cancellation. There are further consequences that may follow from the applicant becoming an unlawful non-citizen, which we have considered under this factor but also under the other discretionary factors because they potentially arise as a consequence of the fact that the applicant will become unlawful if his visa is cancelled.
One of the issues that arises is whether the applicant can regularise his position.
There is no obvious substantive visa available to the applicant while he is onshore. Relevantly, s 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application. While s 48 of the Act theoretically allows the applicant to make an application for a partner visa, this requires sponsorship by an Australia citizen, permanent resident or eligible New Zealand citizen. Given [the applicant’s wife’s] visa has been cancelled, this is not an option unless the decision to cancel her visa is overturned. She would firstly have to succeed on her appeal and secondly have a more favourable decision made by this Tribunal. The outcome of these matters may be significantly delayed. Accordingly, in the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act.
A detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown. Such a decision is not reviewable or compellable.
Section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal.
Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198, relevantly subsection (5) in this case, which provides that a detainee must be removed as soon as reasonably practicable if they have not applied for a substantive visa under s 195(1) or revocation under s 137K. Importantly, the obligations of removal under s 198 are now subject to the provisions of the new ss 197C(3) and 197D of the Act, which were inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) and came into effect on 25 May 2021. Broadly speaking, these amendments have an impact on removal obligations where findings about protection obligations have been made. The operation and effect of these amendments is more conveniently discussed later in our reasons when dealing with the question of whether cancellation of the applicant’s visa would lead to his removal in breach of Australian's non-refoulement obligations.
In essence, we have concluded that cancellation of a protection visa does not have such an impact given the recent amendments to the removal provisions. However, the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Iran voluntarily.
If the applicant does not agree to voluntarily return to Iran, according to the country information from the Department of Foreign Affairs and Trade, the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018.[7] This would apply to the applicant because he arrived in Australia in 2009. When this was raised with the applicant, he said he would choose to remain in detention but seemed later to be equivocal about this in that he later said if he had to return, he would do so alone without his family. There is no information before us to suggest the applicant may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country.[8]
[7] DFAT Country Report: Iran, 14 April 2020 [5.27]. Australia and Iran entered into a Memorandum of Understanding to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia
[8] Section 36(3) of the Act provides that Australia does not have protection obligations if a non‑citizen can avail themselves of protection in another country
As such, unless there is a change in Iranian policy or the applicant changes his mind and decides to return to Iran voluntarily, it is likely the applicant would be in detention for an extended period. This will be the case irrespective of the effect of the amendments to the removal provisions because even if a new assessment of protection obligations is undertaken, country information suggests that Iran will still refuse to accept an involuntary returnee.
Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[9]
[9] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration includes ‘where a person knowingly fails to provide information, or provides misleading information, about their identity (such as age, nationality, citizenship or ethnicity)’. The applicant’s circumstances clearly fall within this. In contrast, among the public interest factors listed as being viewed favourably by the Minister for the grant of a residence determination and which are also relevant to the applicant are family composition, health and well-being, and relevantly:
where the person has a close relationship with an Australian citizen or permanent resident and not making a Residence Determination would result in irreparable harm and continued hardship to an Australian citizen or permanent resident;
any other significant issues concerning the person, including, but not limited to, unique family circumstances or health issues …
The grant of a favourable residency determination is therefore a possibility in the circumstances of this case, but as with any application under s 195 of the Act, the prospects of such an application are theoretical.
Accordingly, there is a real prospect that if the applicant decides not to return to Iran voluntarily, he will be subject to prolonged detention until the Minister decides what should be done. In this regard, we note that the plurality of the High Court in Commonwealth of Australia v AJL20 found that provided an officer who detains a person knows or reasonably suspects that the person is an unlawful non-citizen, prolonging detention of that person for an unauthorised purpose, such as delay occasioned by the executive not wanting to breach non‑refoulement obligations, does not impact the duty to detain or remove.[10] In other words, prolonged detention was not unlawful in the circumstances of that case. There are similarities with this case and, as such, it would seem that prolonged detention may not be unlawful in a case such as this.
[10] [2021] HCA 21 at [72] per Keifel CJ, Gaegler, Keane and Stewart JJ
If the applicant does decide to return, without his family, this will also have serious consequences for him and his family. Both options will be detrimental to his mental health and are likely to have a significant impact on his family, including his children who are Australian citizens. Separation of the family unit could be avoided by the applicant agreeing to leave Australia voluntarily and taking his family with him, but this option raises further issues, one of which is that his wife’s appeal is still outstanding and she may not agree with this course.
It is difficult to specify what may happen if the applicant’s visa is cancelled and he becomes an unlawful non-citizen because this involves a level of speculation about the decisions that may be made in the future by the applicant, the Australian or Iranian governments or the Minister. However, we are able to make an informed assessment based on the available evidence which is no different to other assessments the Tribunal is called on to make about the foreseeable future. This is an integral part of the decision-making process when exercising discretion and we have therefore undertaken this approach.
Accordingly, we find that the consequence of cancellation of the applicant’s visa is that he will become an unlawful non-citizen and he will be liable to detention that may become prolonged. There is an alternative option that he may volunteer to return to Iran, but this will have other consequences that would be detrimental to not only him but the family unit, including his children. These matters are considered later in our reasons. Having regard to these findings, we find that this is a significant factor that weighs against cancellation.
International obligations: Convention on the Rights of the Child
In 1990, Australia ratified the United Nations Convention on the Rights of the Child which entered into force for Australia on 16 January 1991. Article 3 of the Convention provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
It should also be noted that in the preamble to the Convention, is it stated:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community …
In CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor (CFE16 and CFD16), which was a cancellation case not dissimilar to this case, the Federal Circuit Court observed that the critical question in the proceedings was:
whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision‑maker did, in fact, have regard to the relevant consideration in the Convention as a primary consideration. [11]
[11] CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083 at [21] per Riethmuller J
This was further explained by his Honour, Judge Riethmuller, as follows:
The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[12]
[Citations omitted]
[12] Ibid at [25]
This issue was subsequently considered by the Federal Court in DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs, where the Court held that the Tribunal was bound to take into account the best interests of the appellants’ two children in reviewing decisions of the Minister to cancel the appellants’ visas under s 109.[13] Relevantly, Justice Stewart cited the decision in CFE16 and CFD16 with approval and stated that he was “clearly bound to follow and apply the expression of the rule” about the best interests of the child expressed by the High Court in Teoh v Minister for Immigration and Ethnic Affairs, as formulated in Vaitaiki v Minister for Immigration and Ethnic Affairs and “followed by subsequent decisions of the Court”. [14] More recently, in Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs, Allsop CJ referred to some of the matters that should be considered, such as whether children as citizens of Australia would be deprived of the benefits of citizenship, the resultant social and linguistic disruption of their childhood and the loss of educational opportunities in Australia.[15]
[13] DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184 at [37] per Stewart J
[14] Ibid at [37] referring to Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 and Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5
[15] Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480 at [54] referring to Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [30] per Branson, North and Stone JJ
Having regard to these authorities, and consistent with Department guidelines, the best interests of the applicant’s children is a matter that should be given primary consideration when exercising our discretion. It is therefore relevant to consider the circumstances of the applicant’s children and make an assessment of their best interests. Even though there are no visas to be cancelled and their citizenship will not be affected, it is likely that any decision we make will have an impact on their lives. As such, it is important to first assess the impact of the cancellation of the applicant’s visa on their circumstances. This is further complicated by the fact that [the applicant’s wife’s] visa has also been cancelled, this decision has been affirmed and she is now awaiting the determination of her application for judicial review.
If the applicant’s visa is cancelled (or rather remains cancelled), in the absence of a successful appeal or the grant of another visa, the applicant would be deported or, if he refused to return voluntarily, he may be held in detention for a prolonged period as an unlawful non-citizen. These are matters that have already been considered as they affect the applicant, but the impact of these matters extends beyond the applicant and they are relevant in considering the best interests of the applicant’s children.
The applicant was asked what would happen if his visa remained cancelled. When the various options were outlined, the applicant said that if he had to return to Iran he would, although it was unclear whether he would do this voluntarily, but he would return by himself and leave his wife and children in Australia because the current circumstances the family was in was his fault. In his view, his wife and children “should not be punished” for his actions, as he was to blame. The applicant did not appreciate that because his wife’s visa had been cancelled, she may also have to return to Iran, but we accept the thrust of the applicant’s evidence is that he would choose separation rather than make his children return with him to Iran because he saw little opportunity for them there and considered it would be best for them to stay in Australia. When asked what would happen with the children, he said he did not know and could not really contemplate this, but he would consider leaving them with one of his remaining relatives living in Australia and was not sure who that would be at this stage. Whether he would do this if the time came and his wife also had to return to Iran remains to be seen, but we accept that the answer he gave about these matters was a truthful answer based on his consideration of the matter when pressed during the hearing. Notwithstanding the applicant’s failure to provide truthful answers in his application and in response to the NOICC, we found the applicant to be a witness of truth when he gave evidence in the proceedings.
Making meaningful predictions based on what a person says they would do when presented with what they consider to be several unpalatable alternatives is problematic and possibly unreliable, not because the witness is lying but simply because they may not have considered all the implications or because people are prone to change their mind once the implications are fully understood or realised. It is therefore appropriate to consider the potential consequences of cancellation based on the different options available to the applicant.
Broadly speaking, these options are that the applicant may voluntarily decide to return to Iran without his children and his wife, he may decide to voluntarily return to Iran with his wife and children, he may decide not to return but to remain in detention hoping for a change in his circumstances or policy, or he may return to Iran in the hope that his wife’s appeal will be upheld so he can return to Australia on a spouse visa. A further possibility is that Iran may change its policy on involuntary returnees, in which case the applicant may be removed regardless of his opposition.
In our view, all of these possible options would be detrimental to the best interests of the applicant’s children, either because the family unit would be separated (and there is evidence that the applicant takes an active role in his children’s lives) or because there may be pressure on the family to return to Iran, which would have the benefit of keeping the family together but may cause substantial difficulties for the children.
While it is difficult to make predictions about these matters, we have sufficient information about the circumstances of this family and the country information in Iran to make an informed assessment of the possible consequences for the applicant’s children and whether or not these matters are in their best interests.
100. First, the applicant may refuse to return to Iran voluntarily and would therefore remain in detention unless and until there is some change in his circumstances such as, for instance, a change in Iranian government policy or a decision made by the Minister to release him into the community or to grant another visa. The applicant’s absence from the family unit, even if he is in detention in the same location as his family, would have an adverse and potentially harmful impact on the children and the family as a whole. The applicant is the main income earner, he is his wife’s carer and he has taken a prominent role in the care of the children since his wife’s illness. If he is not available to do this, it is likely that the children will be significantly disadvantaged even though, based on the applicant’s evidence about this, there are family members in Australia who may be able to step in to assist. The children may have some opportunity to see the applicant while he is in immigration detention, but this is unlikely to provide a meaningful alternative to an ongoing parental relationship.
101. Given the close relationship between the applicant and his children, the limitations facing his wife and, more generally, the significant disruption to the family unit, it is our view that this would have a substantially detrimental impact on the children and, as such, would not be in their best interests.
102. The second alternative is that the applicant may change his mind and decide to return to Iran, without his family. Separation from a father who has played a significant role in their life, particularly given their mother has been ill and her condition is likely to deteriorate, would have a substantially detrimental impact on the children and their family unit. This would not be in their best interests and is inconsistent with statements of principle made in the Preamble to the Convention about the family “as the fundamental group of society … [that] should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”.
103. The third alternative is if the applicant decides to return to Iran with his family, or, if there is a change in Iranian policy, he is deported but decides that the family should not be separated and he takes the family with him. In considering this alternative, it is important to have regard to the children’s present circumstances.
104. The eldest child is in Grade [redacted] and, according to the applicant, she is good at school. She plays sport, including basketball and gymnastics. Her friendship groups are largely limited to her schoolfriends along with one child of Iranian heritage who lives close by. She has grown up living in the Australian community all her life. She has embraced the Australian culture, she has many Australian friends and does not mix extensively in the Iranian community, other than with other family members. She is free with her attitudes as to how she should act as a young teenage girl and often wears what the applicant considers to be ‘skimpy’ clothes. Neither he nor his wife have sought to constrain her in adopting the freedoms available to her in Australian culture. He believes that his daughter would find it very difficult to adjust if she were required to move to Iran with her parents because living in Australia is all that she has known. He thought that it may be easier for their young son to adjust over time but both he and [his wife] were concerned that the children would face less opportunities in Iran, as opposed to Australia. He was also concerned about the adjustments they would need to make if the family returned to Iran. He said that they had never forced religion onto the children and believes that his eldest daughter does not know how to pray.
105. The applicant said that his eldest daughter can understand Farsi and a little Kurdish. She can speak Farsi but prefers to speak in English. He said that before the COVID‑19 pandemic she would go once a week to a school to learn Farsi, but then classes were cancelled because of the pandemic. [The applicant’s wife] explained that they chose to send her to these lessons as she had heard that it helped having a second language when students complete their High School Certificate.
106. According to Iranian law, children with Iranian parents are entitled to acquire Iranian citizenship and retain their Australian citizenship until they reach the age of 18 at which point in time they would have to choose to either maintain their Iranian citizenship by disavowing Australian citizenship or forgoing their Iranian citizenship.[16]
[16] United States Office of Personnel Management, ‘Citizenship Laws of the World’, March 2001 available at Returning to Iran with their parents may present opportunities for the children to connect with their cultural heritage and relatives they have not yet met, particularly if they are able to retain their Australian citizenship and make an election to return to Australia when they are adults. However, we also anticipate there will be significant disadvantages for the children, particularly for the applicant’s daughter, if the applicant returns to Iran with his family.
108. The applicant’s daughter has lived in Australia as an Australian citizen all her life. She is accustomed to the freedoms afforded to women and girls in Australia and does not know Farsi to the level that would be expected of a [X]-year-old Iranian. This would create substantial challenges for her. It is evident that the applicant has accepted the cultural direction his daughter has taken in Australia as evidenced by the fact he has not encouraged her to participate in the Kurdish diaspora, learn the language for a purpose other than to help her future in Australia, or limit how she dressed. This acceptance would also weigh heavily on the applicant and his wife if they returned to Iran with the children if they were confronted with a situation in which their daughter was forced by relatives or society to act otherwise. Any family conflict that may arise would be disruptive for the whole family, including the children.
109. When asked about the impact on his young son if they returned to Iran, the applicant said that he would be more able to adapt and may find it less of a challenge. While we accept that this may be the case, we are of the view that the disruption to the life of the applicant’s youngest child, even at his young age, should not be underestimated.
110. We therefore accept both children’s lives would be disrupted if they were forced to return to Iran and this would not be in their best interests.
111. In summary, the various potential alternatives would seem to present significant disadvantages to the applicant’s children. On one hand, departure to Iran would lead to the loss of the benefits of living in Australia, the benefits of citizenship and the opportunities that Australia affords, even though they may retain the choice to return to Australia at some later time. On the other hand, were the children to remain in Australia, they would suffer significant disadvantage through the breakdown of the family unit and, in particular, separation from their father, as the main breadwinner and carer for their mother and for them. Accordingly, we find that the best interests of the children weigh heavily against cancellation of the applicant’s visa.
International obligations: non-refoulement
112. The core principle of non-refoulement is contained in the 1951 Convention relating to the Status of Refugees (and its 1967 Protocol) which provides that no state shall expel or return a refugee to a country where they face a serious threat to their life or freedom because of his or her race, religion, nationality, membership of a particular social group or political opinion. This is commonly referred to as the Refugee Convention. Australia is a signatory to the Refugee Convention and it has been, broadly speaking, enacted into our law.[17]
[17] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
113. Australia is also a signatory of the International Covenant on Civil and Political Rights (ICCPR), Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty (Second Optional Protocol) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).[18] These Conventions provide for protection against refoulement where a person is not a refugee within the meaning of the Refugee Convention but there are substantial grounds for believing the person would be subject to significant harm through, for instance, cruel, inhuman or degrading treatment or punishment, torture or arbitrary deprivation of life.
[18] International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A(XXI) of 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989; and Conventional against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly and resolution 39/46 of 10 December 1984, 1465 UNTS 85 (entry into force 26 June 1987)
As already noted, the cancellation of the applicant’s visa would make him an unlawful non‑citizen and would result in him being liable to detention under s 189 unless he agrees to return and makes a written request that he be removed. We question whether there is a real choice between prolonged detention and returning to a country where the applicant believes there to be a real chance of persecution or a real risk of significant harm. As observed by Deputy President Britten-Jones in XDJD and Minister for Immigration and Border Protection (Migration), a written request by an applicant to be removed from Australia may still constitute refoulement if an applicant requests that he be refouled “out of despair due to his prolonged detention”.[19] We agree with this statement of principle.
[19] [2021] AATA 2882 at [101].
115. It is therefore important to consider non-refoulement in the circumstances of this case and to examine the recent amendments to the Act in respect of removal where there has been a protection finding previously made.
Having examined these provisions and the relevant Explanatory Memoranda, we have concluded that the effect of these amendments is to make it highly unlikely, in the circumstances of this case, that cancellation of the applicant’s visa would lead to his removal in breach of Australian’s non-refoulement obligations. The critical issue in this case (and in other cases where protection visas have been cancelled under s 109 of the Act) is that the amendments to the Act have the effect of changing the assessment the Tribunal must make when considering non-refoulement in the context of exercising the discretion of whether or not to cancel a protection visa. To understand why this is so, it is important to examine the interaction between the new provisions and the removal obligation under s 198 of the Act.
117. Section 198 is now subject to the provisions of the new ss 197C(3) and 197D of the Act. The Explanatory Memoranda[20] provide a helpful background in relation to the purpose and effect of the amendments.
[20] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth), Revised Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) and Supplementary Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).
Prior to its amendment, s 197C of the Act provided that, for the purpose of removal under s 198, it was irrelevant whether Australia had non-refoulement obligations in respect of an unlawful non-citizen and that the person must be removed as soon as practicable. Section 197C was apparently introduced to deter the making of unmeritorious protection claims as a means to delay an applicant’s departure from Australia where the Minister or delegate had already found that the person did not engage non-refoulement obligations. According to the Explanatory Memorandum, the section was not intended to operate to require the removal of a person who had been found to engage non-refoulement obligations. Following two Federal Court judgments, where this was put in doubt, s 197C was amended to insert s 197C(3) as follows:
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
119. There are several permutations described in these provisions but, generally, a protection finding will be a favourable finding in relation to some or all of the relevant protection criteria made by the Minister or a delegate in the course of considering an application for a protection visa. Subsections 197C(4) to (6) contain provisions which set out when there will be a “protection finding” for the purposes of s 197C(3). These subsections are based on the current protection provisions in s 36, although the legislative intent is for a “protection finding” to encompass previous versions of the protection criteria “however expressed and including impliedly”. This is evident from the Explanatory Memorandum as follows:
The structure of new subsection 197C(5) reflects the same broad structure as in new section 36A. The primary purpose of subsection 197C(5) is to ensure that protection findings are defined to include findings made by the Minister (or delegates of the Minister) in relation to protection visa applications decided prior to the commencement of these amendments and which may not use the precise wording of the current protection visa criteria, or reflect the order of consideration in new section 36A.This is to ensure that persons currently in Australia, and who have a protection finding from an earlier decision in respect of an application for a protection visa, are also protected by the amended section 197C from involuntary removal in circumstances that reflect Australia’s non‑refoulement obligations.[21]
[21] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) 27, 9.
{emphasis added}
120. Broadly speaking, this new subsection provides that s 197C does not require or authorise removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal. In our view, although this is not germane to this case, if an unlawful non-citizen requested removal arising from undue hardship experienced in detention, this could not be properly described as voluntary removal and while s. 197C(3)(c)(iii) simply refers to a request in writing to be removed, it would be incongruous if this covered a “request” that was coerced or motivated by desperation.
121. Section 197D(2) provides that, for the purposes of s 197C(3), the Minister may make a decision that a person no longer engages protection obligations. The provision gives the Minister a broad discretion to make such a decision. Relevantly, the Supplementary Explanatory Memorandum states at [10] that “[i]n practice, it would be rare that a person who has been found to engage protection obligations would no longer engage those obligations”. A possible circumstance may be where the Minister decides to make a decision under s 197D(2) where a non-citizen with a protection visa is convicted of a serious crime and their visa is mandatorily cancelled under s 501(3A) of the Act.
122. In such a case, the Minister may decide that the non-citizen no longer engages protection obligations because, for instance, they do not meet the criteria for a protection visa in s 36(1C) which provides that a non-citizen must not be a person whom the Minister considers, on reasonable grounds, is a danger to Australia’s security or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. There is no suggestion that the applicant would fall within this exclusion. However, a further circumstance in which the Minister may make a decision that a person no longer engages protection obligations, relevant to the applicant, is where protection obligations were found to be owed but some or all of the factors on which that decision were made are found to have been incorrect.
123. Decisions made by a delegate of the Minister under s 197D(2) are reviewable by the Tribunal and no doubt jurisprudence on the scope of this decision-making power will emerge over time. There is no guidance yet issued about how this discretion will operate, although the Explanatory Memorandum states:
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government's preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.[22]
[22] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) 13.
124. In the absence of guidance and Department precedents of how these provisions will be applied, we cannot speculate on whether, in a case such as this, the fact that the applicant’s visa has been cancelled will lead to a determination under s 197D(2) of the Act.
A decision can only be made under s 197D(2) for the purposes of considering whether s 197C(3) will apply. Section 197D(2) is enlivened if a valid protection visa application has been made (and is finally determined) and a protection finding, as defined in ss 197C(4) to (7), has been made.
126. This is consistent with the stated intention of the amendments as outlined in the Explanatory Memorandum:
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:
·modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless:
othe decision finding that the non-citizen engages protection obligations has been set aside;
othe Minister is satisfied that the non-citizen no longer engages protection obligations; or
othe non-citizen requests voluntary removal; and
·ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.
……
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
127. As explained above, where an unlawful non-citizen has been found to engage protection obligations through the protection visa process, their removal is not required or authorised unless the protection decision is quashed or set aside, the visa holder asks in writing to be removed or the Minister makes a determination under s 197D(2) of the Act that the visa holder is no longer a person in respect of whom any protection finding (as defined) would be made. If the Minister does not make a decision under s 197D(2) and neither of the other provisos apply, the effect of s 197C(3) is that any existing protection finding will prevail. The removal of the unlawful non-citizen will not be authorised and the unlawful non-citizen will therefore remain in detention unless or until a favourable decision is made under ss 195A or 197AB of the Act. If the Minister decides to make a decision under s 197D(2), this will involve a fresh assessment of the relevant protection criteria at the time of the determination under s 197D(2). Relevantly, there are review rights in respect of any such decision.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non‑citizen’s behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1B) If:
(a) an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
(2) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
(3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.
(4) In paragraphs (1)(b) and (1A)(b):
(a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
48A No further applications for protection visa after refusal or cancellation
(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.
(1AA) Subject to section 48B, if:
(a) an application for a protection visa is made on a non citizen’s behalf while the non citizen is in the migration zone; and
(b) the grant of the visa has been refused, whether or not:
(i) the application has been finally determined; or
(ii) the non citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non citizen knew about, or understood the nature of, the application due to the fact that the non citizen was, at the time the application was made, a minor;
the non citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non citizen is in the migration zone.
(1AB) If:
(a) an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section, the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.
(1A) For the purposes of this section, a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.
(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(1C) Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.
(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non‑citizen includes a reference to an application for a protection visa that is taken to have been made by the non‑citizen by the operation of this Act or a regulation.
(1E) In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.
(2) In this section:
application for a protection visa means:
(aa) an application for a visa of a class provided for by section 35A (protection visas — classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.
(aaa) an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
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.
195Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply — within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
195AMinister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa — the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year — 1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year — 1 January in the following year.
197ABMinister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b) specify the conditions to be complied with by the person or persons covered by the determination.
(3) A residence determination must be made by notice in writing to the person or persons covered by the determination.
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non‑citizen who withdraws their written request to be removed to a country is taken not to have made that request.
197D Decision that protection finding would no longer be made
(1) A decision under subsection (2) of this section may only be made for the purposes of subsection 197C(3).
(2) If the Minister is satisfied that an unlawful non‑citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.
(3) For the purposes of subsection (2), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(4) If the Minister makes a decision under subsection (2) in relation to an unlawful non‑citizen, the Minister must, in writing, notify the non‑citizen of the following matters:
(a) the decision;
(b) the reasons (other than non‑disclosable information) for the decision;
(c) that the decision is reviewable under Part 7;
(d) the period within which an application for review can be made;
(e) who can apply for review;
(f) where the application for review can be made.
Note: For the method by which the notification may be given, see section 494A.
(5) Failure to comply with subsection (4) in relation to a decision does not affect the validity of the decision.
(6) For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:
(a) the period within which an application for review of the decision under Part 7 can be made has ended without a valid application for review having been made;
(b) a valid application for review of the decision under Part 7 was made within the period but has been withdrawn;
(c) the decision is affirmed (or taken to have been affirmed) on review under Part 7.
198Removal from Australia of unlawful non-citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Removal of transitory persons brought to Australia for a temporary purpose
(1A) In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).
Note 1: Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).
Note 2: Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).(1B) Subsection (1C) applies if:
(a) an unlawful non-citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B or repealed section 198C for a temporary purpose; and
(b) the non-citizen gives birth to a child while the non-citizen is in Australia; and
(c) the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).
(1C) An officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).
Removal of unlawful non-citizens in other circumstances
(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b) who has not subsequently been immigration cleared; and
(c) who either:
(i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is covered by subparagraph 193(1)(a)(iv); and
(b) since the Minister's decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision — either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
(2B) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection
501E(2).(3) The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.
(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
(a) is a detainee; and
(b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen has made a valid application for a bridging visa.
(5A) Despite subsection (5), an officer must not remove an unlawful non-citizen if:
(a) the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and
(b) either:
(i) the grant of the visa has not been refused; or
(ii) the application has not been finally determined.
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(7) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) Subdivision AI of Division 3 of this Part applies to the non-citizen; and
(c) either:
(i) the non-citizen has not been immigration cleared; or
(ii) the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(d) either:
(i) the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or
(ii) the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(8) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) Subdivision AJ of Division 3 of this Part applies to the non-citizen; and
(c) either:
(i) the Minister has not given a notice under subsection 91L(1) to the non-citizen; or
(ii) the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(9) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) Subdivision AK of Division 3 of this Part applies to the non-citizen; and
(c) either:
(i) the non-citizen has not been immigration cleared; or
(ii) the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(d) either:
(i) the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or
(ii) the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(10) For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(11) This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Remedies
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