1906187 (Refugee)

1906187 (Refugee) [2021] AATA 5173 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906187
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:8 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 December 2021 at 12:34pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – applicant’s identity – citizenship status – consideration of discretion – visa grant based on incorrect information – time elapsed since the non-compliance – impact of cancellation on family members – applicant’s wife from a family of prominent pro-Arab rights campaigners – best interests of the child – youngest child an Australian citizen whilst rest of family are Iranian citizens – conversion to Christianity – recourse to non-refoulment review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 101, 107, 109, 140, 195, 195A, 196, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Promsopa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate initiated the process of cancelling the applicant’s visa on the basis that the applicant had provided incorrect information regarding his identity. A notice of intention to consider cancellation was provided to the applicant to which a response, by way of a statutory declaration, included an admission to having lied about his name and citizenship. Based upon this information the delegate found that there were grounds for cancellation and then considered the discretionary elements, but nevertheless found that the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants. Nevertheless, their circumstances are relevant to the case as is discussed further below.
The applicants appeared before the Tribunal on 16 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and oldest son.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 in the following respects: The applicant had provided information in his application that he was a stateless Faili Kurd of the name [Alias 1]. Instead, as the applicant had admitted in a statutory declaration, his identity was [applicant name], an Iranian citizen since birth. The delegate found that this amounted to non-compliance with section 101 of the Act as it appeared that the applicant had not filled in his application form for a Protection (Class XA) visa in such a way that all questions on it are answered and no incorrect answers are given.
In reviewing the applicant’s application form I find that the applicant did make the claims as particularised in the NOICC, relevantly that he was a stateless Faili Kurd.
The applicant provided a statutory declaration following the serving of the notice of intention to consider cancellation (NOICC) which acknowledged that he had provided incorrect information as particularised in the NOICC.
The statutory declaration dated 1 December 2016 included the following:
I, [applicant name], date of birth [Date 1] of [address], DO HEREBY solemnly affirm and DECLARE AS FOLLOWS: That my true name is [applicant name]. My true date of birth is [Date 1]. My true nationality is Iranian; I have been an Iranian citizen since birth. I arrived in Australia for the second time, by boat, [in] October 2010. My first arrival in Australia was [in] August 2001.
I note that the statutory declaration came in response to the NOICC and as such it is indicative of an immediate acknowledgement of the false information.
I asked the applicant at the hearing whether he stood by his statutory declaration, to which he responded that he did and that he had provided incorrect information.
Based upon the applicant’s admission, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c).
The prescribed considerations in r.2.41 of the Regulations
The correct information
The correct information is that the applicant is not a stateless Faili Kurd but rather he is a Kurd and holds citizenship of Iran. This is a significant different that leads me to 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 decision record under ‘reasons’ engages with the situation of Faili Kurds in Iraq (the applicant had claimed that his family were expelled from Iraq to Iran), citizenship and nationality issues of Faili Kurds in Iraq, Faili Kurds in Iraq targeted as a group and the situation of Faili Kurds in Iran and Iraq. The decision concludes with the following:
Based on the independent evidence before me, I am of the opinion that there is a real chance that as a stateless Faili Kurds, in Iran, without documentation, the claimant would be denied access to basic services in the current climate in Iraq. I am satisfied that the denial referred to would threaten the claimant’s capacity to subsist. I consider that this treatment amounts to “serious harm”. I further accept I accept that the claimants have grown up in Iran and their background and circumstances, including lack of family networks in Iraq, will put them in a vulnerable position of risk of harm if they returned to Iraq…I accept that the claimants face a real chance of Convention-based persecution on return to Iraq and Iran at the hands of state and non-state agents.
In reviewing the decision record, I find that the visa was granted in whole based upon the incorrect information. For this I place significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant first arrived at Australia in 2001. He claimed that he had fled Iran on the basis of his strong opposition to then Iranian regime. He claims to have joined a group that was active in educating people about the atrocities carried out by the regime in his province of Khuzestan. He claimed to have been arrested for this and was lashed [number] times as well as serving [number] months in prison. Because of that experience he fled Iran and claimed asylum in Australia. The Department and on appeal the Refugee Review Tribunal rejected his claims and he voluntarily returned to Iran in March 2002.
The applicant claims that he had participated in further political activities nearly ten years later during the disputed 2009 elections which resulted in him being caught by the security forces. He claims that he was tried in a Revolutionary Court where he was sentenced to [number] years imprisonment of which [number] years were suspended. He claims that he was also lashed [number] times and spent [time period] in prison. He claims to have been released from prison [in] August 2010.
Two weeks after his release, having assumed that he could remain out of jail by avoiding political activity, he received a summons to appear before the Revolutionary Court again. Based upon this the applicant claims to have felt his life was threatened and so he found a way to leave the country.
On his journey to Australia he claims that he met two people he knew from immigration detention the first time he was in Australia. These people advised him not to tell the truth about his claims and instead suggested that he claim he is a stateless Faili Kurd. He claims that as he had been rejected the first time and that he was afraid of being returned and the Iranian authorities jailing and lashing him again, the applicant took the advice.
The applicant’s wife gave evidence about the circumstances explaining that her husband listened to the community and people smugglers and not her. She said that she was not in favour of lying to the Australian government. She explained that she regrets not being more assertive to speak the truth as she believed that had they told the truth they would have been granted the protection visas as the harm they faced because of his political actions increased substantially since the first time he had attempted to seek asylum in Australia.
On the evidence given regarding these circumstances I am satisfied that the applicant and his wife were telling the truth and as such accept their narration as fact.
I give some weight on the fact that the applicant had reason to doubt that his new claims would have granted him asylum despite such an assumption being misplaced. Nevertheless, the applicant could have been swayed by his wife’s reasoning and should have had the moral fortitude to tell the truth. I find that the circumstances in which the non-compliance occurred are mitigated to some degree by his past experiences and therefore place limited weight in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant has two children and a wife with whom he lives with. The circumstances of the family and how they impact the primary applicant are discussed further below under the legal consequences of cancellation.
The applicant has his own business in [specified industry] which would have to be wound up if his visa’s cancellation was affirmed and he was removed from Australia.
The applicant has established himself in a community and has friends with whom he socialises. He has a home and his children have established themselves in the community.
Based upon the limited issues arising from the applicant’s present circumstances largely revolving around having established a life in Australia, I place very limited weight 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
There is no information before me that the applicant has not fulfilled other obligations under Subdivision C of Division 3 of Part 2 of the Act. Nevertheless, meeting this obligation is a minimum expectation of all visa holders and as such I place limited weight against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the visa holder known by the Tribunal. Nevertheless, this is a minimum expectation of all visa holders and as such I place limited weight against cancellation.
The time that has elapsed since the non-compliance
The applicant and his family have been in Australia for over ten years. This is a substantial period that has encapsulated most of the oldest child’s life and all of the youngest child’s life. It is a period that has allowed the family to establish roots in Australia and engage with the community. The family including the applicant have adapted to Australian life.
As this is a significant period of time where the family’s lives have changed, adapting to Australian culture and customs, I place significant weight against cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has been fined for motoring offences and has had his licence suspended for a period. There are no other instances of non-compliance by the visa holder known by the Tribunal. Based upon these infractions I place limited weight in favour of cancellation.
Any contribution made by the holder to the community.
The applicant and his family are involved in community groups in Australia. They also gave evidence that they donated to the Fred Hollows Foundation when they could afford it and they donated blood through the Red Cross. The children play [sport] with their local teams.
Based upon this evidence I place moderate weight against cancelling the visa.
Other considerations
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140
The visas for the oldest child and wife were granted as members of the same family unit despite the wife having her own claims at the time of application which were not considered. As a result of the nature of the grant of the visas of the family members, the decision to cancel the visas by the Department was made under s 140(1) by operation of law.
140 Cancellation of visa results in other cancellation
(1) If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
As such, in the following section I look at the impact cancellation will have on the primary applicant by way of his family members’ visas being cancelled by operation of law. This may impact him through, for example, separation from his family, hardship that arises from having to support the family or psychological harm arising from a helplessness in being unable to protect and support his family.
Whether the cancellation of the family members’ visas lead to the primary applicant facing persecution or significant harm because of their actions or traits is not considered in this section for the reason that recent amendments to the Act have led to the introduction of a separate process for the consideration of non-refoulement of a visa holder who has had a protection finding (ss 197C(3) and 197D).
It is possible, though, unlikely that the cancellation of the wife and son’s visas will lead to their removal separately to that of the primary applicant. This is because the grant of the family members’ visas was made under s 36(2)(b) whereas the primary applicant’s visa was granted under s 36(2)(a).
The relevance of this distinction arises from the new s 197C(3) which was introduced under the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) for the purpose of ensuring the section did not operate to require the removal of a person who had been found to engage non-refoulement obligations.[1] Section 197C(3) refers to a ‘protection finding’, which is defined under s 197C(4)-(7) and includes decisions arising from s 36(2)(a) but not s 36(2)(b).
[1] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
A protection finding is relevant as it is the basis upon which the government has committed not to breach its international non-refoulement obligations. As the family members would not be considered to have had a protection finding then the result is that they do not have recourse to the non-refoulment review envisaged under s 197D which prevents removal of unlawful non-citizens.
The family members are also barred from applying for a protection visa under s 48A. As such the applicants could be removed without any consideration of their fears upon return. In other words, there is no option for the Australian government to undertake a non-refoulement review for the family members.
As such I turn my mind to the circumstances of the family members as their fate would impact the primary visa holder. The applicant’s wife is from a family of prominent pro-Arab rights campaigners. The visa holder’s wife has had 25 family members arrested. She is an Ahwazi Arab, the applicant, by ethnicity, a Fars. The family of the applicant’s wife are active independence leaders within the Ahwazi movement. Independent country information was provided to support this. She said that her people are discriminated against and told that Arabs don’t belong in Iran. She acknowledged that she is not a political person. She said that some of those who were arrested were released but their assets were confiscated. She said that their children were expelled from schools and universities.
According to the visa applicant her family members were arrested because in 2018 during activities calling for more rights and fairer economic distribution of the oil revenue in Khuzestan the government cracked down on independence actors. The applicant provided a news article about this incident and how it has affected her family.

While the family of the applicant’s wife are pro-Arab campaigners the applicant’s [relative], [Mr A], was a [senior officer] in the Iranian security services. A description of his role in the Iranian regime is [publicly available].[2] The [relative] had previously provided support and protection to the primary visa applicant but he gave evidence that the relationship has soured and that he would not be able to rely on him in the future.
[2] [Source redacted]
It is no understatement to say that this marriage is the Iranian version of the coming together of the Capulets and the Montagues. When the applicant was asked whether this had created problems, he said that it hadn’t but that his own activities protesting against the regime had led to issues with his [relative] such that he is no longer in touch.
I accept as fact the evidence provided by the applicant and his wife pertaining to her family circumstances and their backgrounds.
If the visa applicants family were to return to Iran, which is discussed further below, the considering the recent escalation in activism by pro-Arab campaigners and the crackdown by the regime and noting that the applicant has chosen to side against the regime, I find that the wife and son would not be protected by the [relative] and that they are at risk of being targeted by authorities for their familial relations. This will lead to considerable psychological hardship on the applicant as he remains in Australia while his family is at risk in Iran. Absinthe likelihood of the family being removed or voluntarily returning is low, I place only some weight against cancelling the visa for this reason.
Indefinite detention
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. Unless the applicant can regularise his position he faces the prospect of an indeterminate period in detention for the reasons explained below.
There is no obvious substantive visa available to the applicant based upon his circumstances. 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 lifts the bar and decides it is in the public interest to allow such an application.
Section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal or a visa is granted.
A detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa, whether or not the applicant has applied for it, 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 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 subject to the provisions of the new ss 197C(3) and 197D. In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, the potential impact is that the applicant may be liable to prolonged detention unless he decides to return to Iran voluntarily or the Minister grants him a visa.
This is because 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.[3] This would apply to the applicant because he arrived in Australia in 2009. There is no information before me 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.[4]
[3] 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
[4] 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, or the Minister grants him a visa, 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 the Minister is satisfied that the applicant is no longer a person in respect of whom any protection finding would be made (see s 197D(2)), country information in this instance suggests that Iran will still refuse to accept an involuntary returnee.
For the reason that there is no indication that the Minister will grant visas to refugees in detention who have had their visas cancelled and the applicant has no clear pathway to regularising his stay but he cannot be forcibly returned, the applicant faces a lengthy period in detention. For this reason, I place substantial weight against cancelling the applicant’s visa.
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.
In a recent relevant case, Promsopa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs, Allsop CJ referred to some of the matters that should be considered in circumstances when considering the best interests of the child, 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.[5]
[5] 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
In the case of the applicants’ family three of the four family members are Iranian citizens and the youngest one, born in [year] and now [age] years old, is an Australian citizen. This situation creates a dilemma for the family.
Making meaningful predictions on what choices the family will make as they potentially face separation is problematic and possibly unreliable, not because the witness may be 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 and his family.
If the primary applicant’s visa was cancelled, as discussed above, the wife and oldest son could be removed to Iran while the father would remain in detention. The [age]-year-old Australian citizen child could return to Iran with his mother, in which case he would face the challenges of adapting to a new language, culture, a new religion and potentially have to forego his Australian citizenship.
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.[6]
[6] United States Office of Personnel Management, ‘Citizenship Laws of the World’, March 2001 available at >
Alternatively, the wife and older son could refuse to return to Iran voluntarily and as a result remain in detention as Iran does not take involuntary returnees, but this would leave the eldest son in extended and potentially indefinite detention and the youngest son either in detention or being raised by another family. I acknowledge evidence provided in a submission made by the applicant’s lawyer,
A recently published study in Social Science & Medicine found that 32% of children at a detention center showed signs of emotional problems. The study involved interviews with 425 mothers of children at the detention center, who filled out a questionnaire about mental health symptoms in their kids… Research by the Australian Human Rights Commission found that children in detention facilities suffer from mental disorders and the level of mental health problems increases with time in detention, says Kristen Torres, the director of Child Welfare and Immigration at First Focus on Children, an advocacy group in Washington D.C. The study found that 34% of children in detention had diagnosable mental health disorders, and nearly 85% of children and parents said their mental health was affected by detention, with sadness and constant crying as their most common symptoms.[7]
While some of the research referenced was undertaken in US immigration detention facilities which may not be directly representative of the situation in Australia, I accept that detention adversely affects children in any circumstance.
[7] NPR “Lengthy Detention of Migration Children May Create Lasting Trauma, Say Researchers”, 23 August 2019 accessed 7 December 2021.
The final permutation is that all of the adults could choose to return to Iran voluntarily. This will lead to the father potentially facing persecution and the mother facing her own fears of what may amount to persecution. The children have their own reasons to fear return also, namely that they have been inculcated into the Christian faith and tradition and embraced it whole heartedly.
One of the children is [age] years old and attends a Catholic school and the other is [age] and also attends Catholic school. Both are engaging with religious activities at school as well as other school activities. The applicant’s wife explained her faith journey and how she came to be a Christian. Her evidence, including answers to questions that I posed about her experiences, are convincing and as such I accept that the applicant’s wife is a Christian who is actively participating in the rites and obligations of a Christian.
She described how she started going to church, first on her own and then in consultation with her husband, before the children joined her.
The applicant’s wife explained that it was her choice to have their children attend Catholic schools. She explained that although she attends what she described as a protestant church the school closest to her is the Catholic school and it is on their grounds that her protestant church meets for mass. The children began attending Catholic school at a young age.
Evidence was provided and I accept that the children have been baptised within the Pentecostal tradition.
The eldest child gave evidence. He said that he enjoys his school and is doing well. He said that he speaks Farsi but can’t read and write it. He is a member of his church’s youth group. He attends every Friday. The youth group holds activities and discussions. I note that the applicant engaged with his faith through his answers mentioning how he relies on Jesus in his life. Regrettably, the eldest child attempted to evade answering a question regarding whether he had travelled to Iran. He claimed not to have remembered because he was young, despite spending his birthday and over a month there while he was 6 years old.
The applicant’s youngest son’s report card from his Catholic school includes information on what is being taught. I note that in the most recent year the Australian citizen child participated in the following religious education:
During Term One, the Grade [number] students reflected on the choices they make in their lives and how these impact themselves and others. Students explored the Scripture quote, ‘I am the light of the world. Whoever follows me will never walk in darkness, but will have the light of life’ (John 8:12). During the Church season of Lent, to further develop their knowledge of right relationships, the students wrote Lenten Actions, and acted and reflected upon these actions. They explored stories from the Bible as well as images that retell the events of Holy Week. Students reflected on the choices they make and their relationship with Jesus. The students also participated in the Whole School Stations of the Cross.
During Term Two, the Grade [number] students continued to examine the quote, ‘I am the light of the world. Whoever follows me will never walk in darkness, but will have the light of life’ (John 8:12). The students read Parables and came to an understanding that Jesus’ teachings have meaningful messages. They examined the Parable of the Sower and the Seed, The Lost Coin, The Good Samaritan and The Prodigal Son and identified how Jesus’ message can be relevant to us today. They recalled the events of Holy Week and explored Pentecost as a significant time in the Church’s Liturgical calendar. The students explored the importance of the Holy Spirit and how it can enable them to live as Jesus calls us to. Students identified how using the gifts and fruits of the Holy Spirit can guide them to make the right choices in their relationship with others.
This is an extensive Christian upbringing that has shaped the children’s identity.
On the other hand, returning to Iran with one or both parents may present opportunities for the children to connect with their cultural heritage and meet relatives they have not yet met. There is basis to give considerable weight to cultural connectivity and the benefits it affords none more so than the example set by the Australian government in its efforts to provide opportunities for Aboriginal children to maintain a connection to their culture.
When considering the various scenarios the outcomes carry severe consequences upon the children. There is a risk of the family being separated which carries a moderate impact upon the children, especially the youngest, the possibility of the children returning to Iran and facing harm as a result of their faith and potentially their parents being taken away from them would leave a high impact as would the scenario where the children remain in detention for an extended period. Regardless of the pathway the family would choose to take, the impact upon the children far outweighs the relative benefits of culture and proximity to relatives. On this basis, I place substantial weight against cancelling the visa.
In conclusion, in favour of cancelling the applicant’s visa I have placed weight on the basis of the incorrect information he provided, the role that the incorrect information played in granting the applicant a visa, the circumstances surrounding the applicant’s provision of the incorrect information and the minor traffic infringement he has committed. Weighing against cancellation are two substantial factors, namely the impact upon the children and the applicant’s possible lengthy detention along with other more limited weightings against cancellation. There are other factors that were put to the Tribunal, but I have not weighed them, including the wife’s fears of return based upon information known to the Iranian government allegedly provided by a former migration agent and the challenges she would face as a devoted Christian in Iran. I have not engaged with these and others as the balance of discretionary considerations has already tipped against cancelling the applicant’s visa and as such further engagement is not necessary.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Denis Dragovic
Senior Member

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

[2021] AATA 5173

8 December 2021

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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