1907871 (Refugee) - [2021] AATA 3669

1907871 (Refugee) [2021] AATA 3669 (25 August 2021)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907871
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE OF DECISION:  25 August 2021
DATE CORRIGENDUM
SIGNED:17 September 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

At paragraph 3 on page 2, the words ‘resident return visa’ should be deleted, and substituted with the words ‘protection visa’.
At paragraph 7 on page 2, the words ‘resident return visa’ should be deleted, and substituted with the words ‘protection visa’.
At paragraph 9 on page 2, the words ‘resident return visa’ should be deleted, and substituted with the words ‘protection visa’.
Alison Murphy
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907871
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE:25 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s 109 was not enlivened.

Statement made on 25 August 2021 at 3:56pm
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – incorrect answers in visa application – citizenship – undocumented stateless Faili Kurd or Iraqi or Iranian Kurdish citizen – grandparents’, parents’, uncles’ and aunt’s various documentation and Iranian and Iraqi laws governing them – procedural fairness – validity and sufficiency of s 107 notice – failure to provide source of information, preventing real opportunity to understand and meaningfully respond – no reference to possible Iraqi citizenship – decision maker’s satisfaction of non-compliance ‘in the way described in the notice’ – grandparents’ purported citizenship based on one questionable document provided by aunt – notice invalid and power to cancel visa does not arise – no real state of satisfaction even if notice valid – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 438
CASES
CSH18 v MHA [2018] FCCA 3226
Kang v MIAC [2013] FCA 711
MIAC v Brar (2012) 201 FCR 240
Nader v MIMA [2000] FCA 908
NAVK v MIMA [2004] FCAFC 160
SZEEM v Minister for Immigration [2005] FCMA 27
SZNKO v MIAC [2010] FCA 297
Zhao v MIMA [2000] FCA 1235
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 applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a [Age]-year-old male who arrived in Australia by boat [in] June 2010 and sought protection. He was granted a protection visa on 13 April 2011.
The delegate cancelled the resident return visa on the basis that the applicant breached section 101 of the Act by providing incorrect answers about his country of citizenship in his protection visa application.
This matter was determined along with four cases relating to the applicant’s uncle [Mr A] (AAT proceedings 1907125) and three brothers (AAT proceedings 1909315; 1909327 and 1909342).
The applicant in this case and each of the related cases was represented in relation to the review by the same registered migration agent.
The issues in this case relate to an assessment by the Department of the citizenship held by the applicant’s uncle [Mr A]. A hearing took place on 27 July 2021 in [Mr A]’s review at which time the Tribunal noted that it appeared the related cases fell to be determined on the same basis as that case and indicated that it intended to treat the evidence in each case as evidence in the related cases unless the applicants requested otherwise.
The Tribunal has been provided with the Department’s file in relation to the cancellation of the applicant’s resident return visa ([Number]). That file does not contain the primary documents relied upon by the Department in their assessment of the citizenship of the applicant’s uncle [Mr A]. To the extent that my reasons below refer to those documents, I have sighted them on the related Departmental file or they have been provided to me by the applicant.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificate
The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s resident return visa ([Number]). The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing certificates s.438(1)(a) of the Act.
The first certificate is issued under s.438 of the Act on 9 April 2019. It is invalid because it is unsigned and it was revoked by the delegate on 21 July 2021.
The second certificate is made under s.438(1)(a) and dated 4 August 2021. It states that disclosure of folios 1 – 8 of the department’s cancellation file [Number] would be contrary to the public interest because they contain lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods. It states that if the Tribunal proposes to disclose any of the documents detailed in the certificate, the parts of the documents detailed should be redacted. No parts of the document are detailed in the certificate and the Department did not respond to the Tribunal’s query as to which parts were referred to.
Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. I note the relevant part of the certificated information in this case relates primarily certificated information in this case relates primarily to the applicant’s paternal uncle and paternal aunt. I have had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties. Weighing that up against the requirements of procedural fairness set out in s.359A, the Tribunal wrote to the applicant disclosing particulars of that information relevant to the citizenship of the applicant and his family.
In summary, the Tribunal’s letter noted that material before the Tribunal indicated that he may be an Iranian and/or Iraqi national because:
Iranian nationality:
1. His paternal aunt [Ms B] had given inconsistent information about her citizenship and that of her family and provided an Iranian birth certificate to the Department which showed details of their parents’ Iranian birth certificates.
2. His paternal uncle [Mr A] had provided the Department with an Iranian driver’s licence that the Department assessed as a legitimately manufactured document and stated that he travelled through Imam Khomeini International Airport on an Iranian passport that contained his name, date of birth and photograph.
Iraqi nationality:
1. The applicant’s uncle [Mr A] participated in an identity interview on 9 August 2017 and provided a number of Iraqi identity documents to the Department in respect of himself and his brother [Mr C] (also the applicant’s paternal uncle) which showed the family name as [Surname – alternative spelling], rather than [Surname]. He is reported to have told the Department that [Mr C] successfully reacquired Iraqi citizenship in 2010, as evidenced by an Iraqi census document, an Iraqi citizenship certificate and an Iraqi identity card. The documents indicate the applicant’s paternal grandparents are also Iraqi citizens.
2. The applicant’s uncle [Mr A] is reported to have stated that he made an application for Iraqi citizenship and provided documents regarding that application. The nationality officer’s notes in the documents provided state that after investigation he considered the request to be granted an Iraqi nationality certificate complied with the Iraqi Nationality Act and requested approval for the granting of the Iraqi nationality certificate.
3. A Five Country Conference check conducted in respect of his father’s sister [Ms B] was matched with a person who sought protection in [Country] as an Iraqi citizen.
Except as set out in the Tribunal’s letter, the certificated information has not been provided or otherwise disclosed to the applicant by the Tribunal.
ISSUES FOR determination
The issues in this case are:
·    whether the s.107 notice sent to the applicant is valid;
·    if so, whether the ground for cancellation is made out in respect of the applicant; and
·    if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s.109 was not enlivened.
Legislative Framework
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.
Did the notice comply with the requirements in s.107?
Section 107 of the Act sets out the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s.101 of the Act (as asserted in the present case), subsection (1)(a) requires the notice to give ‘particulars of the possible non-compliance’.
The s.107 notice was sent to the applicant on 5 August 2018. The s.107 notice states that the applicant arrived on Christmas Island on 18 June 2011, claiming to be a stateless Faili Kurd seeking asylum in Australia. He was recognised as a person owed protection by Australia in a Protections Obligations Determination on 15 October 2010 and was granted the protection visa on 13 April 2011.
The section 107 notice commences by setting out the information provided by the applicant in his protection visa application. Of particular importance are the applicant’s statements about his citizenship at birth and at the time of application; the circumstances in which he lost his citizenship and any rights he had to enter and reside in any country than his country of nationality or country of former habitual residence. In essence the notice records that the applicant stated in his protection visa application that he was currently stateless and had been stateless since birth and that he was seeking protection so that he did not have to return to Iran.
The s.107 notice goes on to set out the claims for protection made in his statutory declaration dated 7 September 2010. In particular it stated that he was born in Baghdad, Iraq in about 1360 and left Iraq with his parents when he was less than one year old. He does not have any Iraqi documents and to the best of his knowledge cannot obtain Iraqi documents nor be recognised as an Iraqi citizen. The notice goes on to set out in detail the applicant’s claimed experiences as a stateless Faili Kurd resident in Iran and his fear of persecution in that country.
The s.107 notice records that the Department has received information indicating that the applicant’s grandparents [Mr E] and [Ms F] are Iranian citizens. In particular it asserts that they have been issued with Iranian birth records known as shenasnamehs and hold shenasmaneh numbers [Number 1] and [Number 2] respectively. It states that shenasnamehs are only issued to Iranian citizens and Iranian citizenship is acquired through the father. It states that the applicant’s father’s sister [Ms B], holder of shenasnameh number [Number 3], is an Iranian citizen. It states that as the applicant’s grandparents are Iranian citizens, it follows that the applicant’s father [Mr D] is an Iranian citizen. It concludes that as the applicant’s paternal grandfather is a documented Iranian citizen, it follows that the applicant’s father [Mr D] is an Iranian citizen and therefore the applicant is an Iranian citizen and not stateless as claimed.
For these reasons the s.107 notice goes on to allege that the applicant provided incorrect information in his protection visa application in the following respects:
·His response at question 20 of the Form 866C that he was currently stateless was incorrect because he acquired Iranian citizenship at birth from his Iranian citizen father;
·His response at question 42 of the Form 866C to the effect that he would face harm in Iran as a stateless Faili Kurd was incorrect because as an Iranian citizen he would have had access to the benefits and protections available to all Iranian citizens;
·His response at question 43 of the Form 866C to the effect that he would be killed by the Sepah and the basij because they have an ideological difference with the Kurdish people was incorrect because as a documented Iranian citizen he would not be of interest to the Iranian authorities;
·His response at question 44 of the Form 866C to the effect that he would be killed by the Sepah and the basij was incorrect because as a documented Iranian citizen he would not be of interest to the Iranian authorities;
·His response at question 45 of the Form 866C to the effect that he would be persecuted because he was stateless in Iran was incorrect because as a documented Iranian citizen he would not be of interest to the Iranian authorities;
·His response at question 46 of the Form 866C to the effect that he would not be protected by the Iranian authorities because they would persecuted him for being an undocumented Faili Kurd was incorrect because as a documented Iranian citizen he would not be of interest to the Iranian authorities.
The s.107 notice went on to state that based on this information, it was considered the applicant had not complied with s.101(b) of the Act and his protection visa was liable for cancellation under s.109 of the Act. The applicant was invited to comment in writing on the s.107 notice.
Following receipt of the notice, the applicant’s representative corresponded with the Department seeking an extension of time to comment on s.107 notice as the applicant was awaiting documents requested under a freedom of information request and seeking legal advice. That request was not granted and a decision to cancel the visa was made without the applicant’s response being received.
Submissions made to the Tribunal
The applicant lodged submissions and supporting documents with the Tribunal on 24 April 2020.
In relation to the sufficiency and validity of the notice, it was contended that the notice did not comply with the requirements of s.107 because it failed to provide particulars of the source of the information, thus preventing the applicant from providing a meaningful response to the notice, citing Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 as authority for that proposition. Those submissions also contended that the ‘information’ could not necessarily be divorced from its context and how much of the surrounding context must be disclosed will depend on the facts and circumstances of each case (SZNKO v Minister for Immigration and Citizenship [2010) FCA 297 at [29]) and the scope of the duty to disclose may be narrowed or reduced in relation to confidential information or material where disclosure would be contrary to the national or public interest (NAVK v Minister for Immigration and Multicultural Affairs [2004) FCAFC 160 at [87)-[89]. It is submitted that in such cases the decision maker must consider whether it is possible to reconcile the competing interests of procedural fairness and non-disclosure by disclosing the gist of the relevant material (NAVK v Minister for Immigration and Multicultural Affairs (2004] FCAFC 160 at (88].
In relation to the substance of the information, the applicant maintained that he and his family were stateless and that he didn’t know how or if his paternal aunt [Ms B] acquired Iranian citizenship. He stated that his family was not close to his aunt in Iran because they lived in different cities and that he had not visited or spoken to her since he had been in Australia, although he was aware that one of his brothers had done so. He reiterated that he had very strong fears of returning to Iran where he believed he would be subjected to harm due to his stateless status, among other reasons.
The s.107 notice
For the following reasons, I accept the submissions about the sufficiency and the validity of the notice and I find the s.107 notice to be invalid.
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. I accept the delegate had reached the requisite state of mind. As noted above, on the basis of information received by the department the delegate formed the view that the applicant had given incorrect information about his citizenship and his fear of harm as a stateless Faili Kurd residing in Iran.
Sufficiency and validity of the notice
In considering the sufficiency of the notice, I note the s 107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised.
In Zhao v Minister for Immigration and Multicultural Affairs, the Full Court stated that:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open[1].
[1] Zhao v MIMA [2000] FCA 1235 at [25].
While the Court in Zhao was considering a notice under s 119 of the Act, it was cited with approval by the Full Federal Court in MIAC v Brar which considered that it was of assistance in terms of the proper interpretation and application of s.107[2].
[2] (2012) 201 FCR 240 at [57]
In SZEEM v Minister for Immigration[3], the court noted that there are many authorities concerning situations where the potential consequences of the decision-making are a serious deprivation of rights, which have interpreted a statutory requirement of particularity in a manner which ensures that the person in question has a real opportunity to understand and deal with the matters alleged. The court went on to state:
On these authorities, I consider that in notices under s.107 it is "necessary for the notice to identify in clear terms: all charges to be relied on, the relevant legislative provisions or rules giving jurisdiction; the particular grounds relied upon where there are several alternatives; and particulars of the act, matter or allegations forming the basis for the charge" (c.f. the extract from Aronson and Dyer, Judicial Review of Administrative Act, 2^nd ed, quoted by Weinberg J in Gribbles Pathology (Vic) Pty Ltd v Cassidy[2002] FCA 859; (2002) 122 FCR 78 at 100, and the cases cited by his Honour). The presenter of a s.107 notice must bear in mind the procedural fairness objectives of the requirement to give particulars: the recipient must be told "precisely what he has to meet" (c.f. Hunt J in Etherton v Public Service Board[1983] 3 NSWLR 297 at 445 and other cases cited by Davies J in Yung v Adams(1997) 80 FCR 453 at 455-457, approved in Adams v Yung(1998) 83 FCR 248 at 297). The importance of this in the present procedure is strengthened, rather than weakened, because the legislature has made satisfaction of non-compliance "in the way described in the notice" a precondition to the powers of the decision-makers at first instance and on appeal.
[3] [2005] FCMA 27 at [39]

I have considered also the authorities referred to by the applicant in his submissions dated 24 April 2020. I note that all of those cases (NAVK, Nader and SZNKO cited above) are concerned with the requirement to give particulars of information under s.424A, rather than the sufficiency of notifications under s.107. Nonetheless I accept the general principle that the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information before the Tribunal and that the particulars of information disclosed must be sufficiently detailed so as not to render the information misleading and to ensure the applicant is equipped to respond with relevant information and submissions.
In this case, I consider the s.107 notice is clearly deficient.
Firstly, it fails to particularise the source or context of the information about the applicant’s purported Iranian citizenship. While it records that the Department has received information indicating that the applicant’s grandparents and paternal aunt are Iranian citizens holding Iranian birth certificates (shenasnamehs), it does not reveal the source of that information, either by reference to a person or a document.
This is particularly relevant given the source of the information is the applicant’s paternal aunt in the context of her own claims. The Departmental file in the related matter of the applicant’s uncle (AAT proceeding 1907125) contains a statutory declaration from [Ms B] in which she states that she has advised the Department in her entry interview and other interviews that the shenasnameh from which the information about her parents’ citizenship was sourced was obtained by her husband through bribery and she is unaware of whether it is genuine or fabricated.
Secondly, the s.107 notice inexplicably fails to make any reference at all to the information suggesting that the applicant may also be an Iraqi national. That is despite the fact that the department have formed the view that the applicant’s paternal uncle [Mr A], paternal aunt [Ms B] and grandparents are Iraqi citizens, that the applicant’s father [Mr D] must therefore also be an Iraqi citizen with the result that the four children of [Mr D] (being the applicant and his three brothers) are also Iraqi citizens.
The deficiencies in the s.107 notice mean that the applicant has not been given sufficient particulars to be able to meaningfully respond to the information suggesting he is an Iranian national and he has not even been put on notice of information suggesting that he is an Iraqi citizen. As a result he was denied an opportunity to address those matters in his response to the s.107 notice.
Consequences of a defect in the s.107 Notice
The terms of ss.108 and 109(1) indicate that the procedural requirements set out in s.107 are mandatory preconditions to the exercise of the power to cancel. The Australian courts have held that a minor or insignificant error which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss.108 and 109 where adequate particulars are otherwise provided[4].
[4] MIAC v Brar (2012) 201 FCR 240 [61]; Kang v MIAC [2013] FCA 711
On review, the Tribunal remains bound to apply the laws defining the power of the primary decision maker and has no greater or different substantive powers than the primary decision maker[5]. If no particulars are given in the s.107 notice, or if those particulars are insufficient to enable the visa holder to respond to the allegation, it will not be possible to make the decision required by s.108(b) and the power to cancel the visa will not arise[6].
[5] Section 415(1) of the Act; CSH18 v Minister for Home Affairs [2018] FCCA 3226
[6] SZEEM v MIMIA [2005] FMCA 27
For these reasons, the Tribunal finds that the notice was not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise. As such the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s.109 was not enlivened.
The ground for cancellation
The reason for the Department’s suspicion that the applicant gave incorrect information in his protection visa application about his statelessness and fear of harm as a stateless Fail Kurd resident in Iran is drawn from conclusions reached about the citizenship of his paternal uncle [Mr A], those findings having been extrapolated across to the applicant and his brothers in their related matters. For this reason it is appropriate that I summarise my observations as to [Mr A]’s citizenship here.
For the reasons set out in detail in that matter I noted that even if the s.107 had been valid, I would not have found that the ground was established as I was not satisfied [Mr A] is an Iranian or an Iraqi citizen. I noted that much of the information now relied upon to suggest the applicant is not stateless as claimed was known to the Department before the applicant was granted the protection visa, in particular the documents relating to his attempts to regain his Iraqi citizenship and the fact he departed Iran on an Iranian passport which he claimed was fraudulently issued to him.
In relation to [Mr A]’s alleged Iranian nationality, I did not consider the document described by the Department as a shenasnameh issued to his sister [Ms B] to be probative evidence as to [Mr A]’s nationality. In particular I was concerned that with the form of the translated document and the fact that the untranslated document is not attached or otherwise available, as well as number of anomalies and inconsistencies on the face of the document. I was also concerned by the absence of any explanation as to why the Iranian authorities would issue an Iranian birth certificate or shenasnameh in respect of a baby born in Iraq to Iraqi born parents.
I noted DFAT’s advice that only Faili Kurds with paternal Iranian ancestry are eligible for Iranian citizenship and while many have applied, only a small number have succeeded in obtaining it due to the lengthy and complicated process and the high costs involved, while others have not applied because they do not have the required family members in Iran to prove their Iranian ancestry.[7] I was concerned that in circumstances where the purported shenasnameh records [Mr A]’s parents as being born in Iraq, it is difficult to see how he or his siblings including the applicant’s father [Mr D] could have the required Iranian ancestry.
[7] Ibid at 3.26
I noted that [Mr A] had also provided to the Department copies of amayesh cards (both green cards and white cards) held by family members in Iran. Amayesh are issued to Iraqi refugees resident in Iran and their issue is inconsistent with the family being Iranian nationals.
In relation to [Mr A]’s alleged Iraqi nationality, I considered [Mr A] had given a plausible explanation of his attempts to regain his Iraqi citizenship and that he had been consistent in that explanation over the past decade.
I noted that the documents about [Mr A]’s attempts to regain his Iraqi nationality were first provided to the Department by the applicant when he sought protection in Australia and are referred to in the delegate’s decision concerning the Protection Obligations Evaluation Outcome dated 23 January 2012. The delegate found those documents to be consistent with the applicant’s evidence as to his ongoing attempts to obtain an Iraqi nationality certificate and consistent with the experiences of stateless Faili Kurds in Iran. In relation to the family name in those Iraqi documents being ‘[Surname – alternative spelling]’ rather than ‘[Surname]’, the delegate accepted that to be different spellings arising out of translation.
I cited country information confirming that while the Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked and that since 2006, the process of regaining citizenship varies according to the nature and amount of identification that the applicant is able to produce and requires a representative of the family to travel to Iraq. I noted country information indicating that process is slow and difficult in practice, with serious problems in its implementation, including difficulties for those who lacked the identification documents required, the loss of the civil status records, general bureaucracy, slow procedures, lack of employees with a legal background and administrative corruption. I noted that consistently with [Mr A]’s own evidence, it is reported that some Faili Kurds started the process but could not complete it due to documentary and financial requirements [8]
[8] Country Advice Iraq IRQ37208 – Faili Kurds – Reacquiring Iraqi citizenship 18 August 2010; Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’, (Country Report, RSCAS/GLOBALCIT-CR 2021/12, May 2021), at p.10
The Australian courts have confirmed that a mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut[9]. In reaching the required state of satisfaction, the Full Court has observed:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[10]
[9] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
[10] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at 120
In the circumstances set out above, I was not satisfied that the applicant’s paternal uncle [Mr A] is an Iranian or Iraqi citizen. For the same reasons I am not satisfied that [Mr A]’s brother [Mr D] (the applicant’s father) is an Iranian or an Iraqi citizen or that the applicant in this case has inherited that citizenship through his father [Mr D].
CONCLUSION
In these circumstances the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s.109 was not enlivened.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s.109 was not enlivened.
Alison Murphy
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.