1911476 (Migration)

1911476 (Migration) [2020] AATA 830 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1911476
MEMBER:Brendan Darcy
DATE:12 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 12 March 2020 at 5:06pm

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa – ethnicity and citizenship – not stateless Faili Kurd but non-Kurdish Iranian citizen – documentation of applicant and relatives – religion – contrived claim of conversion to Christianity – young child and two step-children, all Australian citizens – best interests of the children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1),
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
On 30 April 2019, the delegate cancelled the visa on the basis that the applicant was found to have provided incorrect answers in his application for a Protection visa, and the reasons for cancelling outweighed those against cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
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
Background of the applicant
The applicant arrived in Australia as an irregular maritime arrival (IMA) at Christmas Island [in] March 2010. He lodged a request for a Refugee Status Assessment (RSA) on 22 April 2010, with an accompanying statutory declaration of claims, declared 18 April 2010. On 7 May 2010, a finding was made that the applicant was owed protection obligations in relation to his claims to be a stateless Faili Kurd formerly residing in Iran. On 10 September 2010, the applicant lodged a Form 866, Application for Protection visa, in which he claimed to be a stateless Faili Kurd, born [Date] in Seyran , Ilam Province in Iran but raised in Tehran. The applicant was granted a Protection visa on 15 September 2010.
The applicant applied for Australian citizenship on 3 November 2014 and attended a related identity assessment interview with a departmental identity officer on 9 August 2017. Departmental records indicate the applicant has not travelled outside Australia since his first arrival.
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.
Section 107A makes clear that the non-compliance particularised in the s.107 notice can include non-compliance with a previous visa. The s.107 notice notes that providing incorrect information on the application form for a Protection (XA-866) visa granted 15 September 2010 may result in the applicant’s Resident Return (BB-155) visa granted 24 September 2018 being liable for cancellation.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects.
The notice indicated the applicant was recognised as a refugee on the basis of answers to questions in the Protection visa application form lodged 10 September 2010 and the earlier statutory declaration of protection claims, dated 18 April 2010, that the applicant relied on in certain answers in this form. The applicant claimed to be a stateless and undocumented Faili Kurd who had been persecuted by the Basij paramilitary force and the Iranian government. The applicant claimed to have fled Iran [in] March 2010 at the behest of his father.
The notice indicated that during an identity assessment interview held 9 August 2017 in relation to an Australian citizenship application, the applicant confirmed details of his parents, mother [Ms A} and father [Mr B]; his grandfather, [Mr C]; and [a number of] paternal aunties and uncles in Australia, including uncle [Mr D] and aunty [Ms E]. [Ms E] submitted her Iranian birth certificate (shenesnameh) and her Iranian passport to the Department, confirming her Iranian citizenship. The notice states [Ms E] acquired her Iranian citizenship at birth as both her parents, [Mr C] and [Ms F], are, according to her shenesnameh, Iranian citizens. The delegate considered this indicated the applicant’s father acquired his Iranian citizenship at birth as Iranian citizenship descends from the paternal line and therefore he is an Iranian citizen.
The notice indicated that the applicant’s uncle, [Mr D], and father, [Mr B], are biological siblings, and that [Mr D]’s shenesnameh, submitted to the Department, shows he is an Iranian citizen by birth via his father who is an Iranian citizen. [Mr D] declared in his visa application his parents, [Mr C] and [Ms F], and his brother, [Mr B], are Iranian citizens. The notice stated this indicated [Mr D] and the applicant’s father share the same parents, indicating [Mr B] is also a citizen of Iran by birth via the paternal line.
The notice outlined how the applicant, in his identity interview, initially claimed he never held an Iranian driver licence and that he paid to obtain a fake. After further questioning, the applicant then stated he sat a test before being issued an Iranian driver licence. He also confirmed he presented this licence to obtain a full Victorian driver licence and that the Iranian licence contained his real name and date of birth.
In the notice, the delegate considered that, by taking family composition lists and evidence of citizenship submitted to the Department by the applicant’s family members, in conjunction with the acquisition of citizenship in Iranian nationality law, it is possible to establish which other family members automatically acquired Iranian citizenship. The delegate considered that the evidence indicates the applicant’s father’s siblings [Ms E] and [Mr D] and their mutual father, [Mr C], are documented Iranian citizens. Given Iranian citizenship descends from the paternal line, the delegate considered that the applicant’s grandfather and father, and by descent, the applicant, are Iranian citizens.
Given this, the notice outlined how the applicant did not comply with s. 101(b); the incorrect answers are particularised as such:
Based on the evidence currently before me, I consider you have not complied with section 101(b) in regard to the answers you provided in your Form 866 as well as the Statutory Declaration dated 18 April 2010:
At question 19 of Part C of the Form 866 it asked for "Your citizenship at birth", you answered "Stateless". I consider this answer to be incorrect as evidence before the Department indicates that you acquired Iranian citizenship by descent at birth as Iranian citizenship descends from the paternal line. Your grandfather, [Mr C] is an Iranian citizen therefore your father, [Mr B], and you are also Iranian citizens by descent.
At question 20 of Part C of the Form 866 it asked for "Your current citizenship (if different to at birth), you answered "Stateless". I consider this answer to be incorrect because you were a citizen of Iran at the time you made that statement and not "stateless". Iranian citizenship descends from the paternal line. Your grandfather, [Mr C] is an Iranian citizen therefore your father, [Mr B] Cheraghvandi, and you are also Iranian citizens by descent and were so at the time of your Protection visa application.
At question 21 of Part C of the Form 866 it asked for "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 because you acquired Iranian citizenship by descent at birth as Iranian descends from the paternal line. Your grandfather, [Mr C] is an Iranian citizen therefore your father, [Mr B], and you are also Iranian citizens by descent and were so at the time of your Protection visa application.
At question 42 of Part C of the Form 866, where it asked "Why did you leave that country?" You answered: "Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made 18 April 2010 and my interview on 20 April 2010". In the statement you stated that you were a stateless and undocumented Faili Kurd. You stated that you were harassed and persecuted by the Iranian authorities, did not have the right to work or access to education. You stated that you could not obtain any documents that would help you access any of the rights extended to Iranian citizens. You claimed that the Basij had threatened to kill you. I consider this answer to be incorrect because you would not have faced the claimed discrimination as your claims were based on you being a stateless Faili Kurd, whereas the information before the Department indicates that you are an Iranian citizen and were so at the time of your Protection visa application.
At question 43 of Part C of the Form 866, where it asked "What do you fear may happen to you if you go back to that country?" You answered: "Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made 18 April 2010 and my interview on 20 April 2010". In the statement of claims document which you referred to you claimed that your life would be in danger because you used a false passport to leave to Iran. Also as a stateless Faili Kurd, you feared the Basij and the government authorities of persecuting you. I consider this answer to be incorrect because you would not have faced the claimed discrimination as your claims were based on you being a stateless Faili Kurd, whereas the information before the Department indicates that you are an Iranian citizen and were so at the time of your Protection visa application. I consider it is unlikely you departed Iran illegally using a false passport given the evidence indicates you are an Iranian citizen.
At question 44 of Part C of the Form 866, where it asks "Who do you think may harm/mistreat you if you go back?" You answered: "Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made 18 April 2010 and my interview on 20 April 2010". In the statement of claims document which you referred to you stated that if you return to Iran the Basij and the authorities would harm you. I consider this answer to be incorrect because you would not have faced the claimed discrimination as your claims were based on you being an undocumented stateless Faili Kurd, whereas the information before the Department indicates that you are an Iranian citizen and were so at the time of your Protection visa application.
At question 45 of Part C of the Form 866, where it asks "Why do you think this will happen to you if you go back?" You answered: "Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made 18 April 2010 and my interview on 20 April 2010". In the statement of claims document which you referred to you stated that you would experience harm and discrimination because you are a Faili Kurd. I consider this answer to be incorrect because you would not have faced the claimed discrimination as your claims were based on you being a stateless Faili Kurd, whereas the information before the Department indicates that you are an Iranian citizen and were so at the time of your Protection visa application.
At question 46 of Part C of the Form 866, where it asks "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" You answered: "Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made 18 April 2010 and my interview on 20 April 2010". In the statement of claims you stated, "The authorities cannot protect me because they have persecuted me in the past and I am afraid they will do so if I am returned. I consider this answer to be incorrect because you would not have faced the claimed discrimination as your claims were based on you being a stateless Faili Kurd, whereas the information before the Department indicates that you are an Iranian citizen and were so at the time of your Protection visa application.
You claimed in your Protection visa application you were a stateless and undocumented Faili Kurd and due to that status you were discriminated against in Iran. Based on the evidence before me it appears that you are an Iranian citizen, and were so at the time you submitted the Form 866 Application for a Protection (Class XA) visa application. I consider that as a documented Iranian citizen you would have been entitled to the same rights as other Iranian citizens and that your claims of serious harm based on your stateless status in Iran are incorrect.
The NOICC, dated 10 October 2018 and sent by email, requested a response within the statutory timeframe. The applicant disputed that he had provided incorrect answers in his responses to the NOICC.
The applicant first responded to the NOICC on 24 October 2018 with the following information:
·The visa holder submits he did not provide incorrect information in relation to his stateless status and maintains he is an undocumented Faili Kurd and not an Iranian citizen.
·The visa holder submits that his family has informed him that when his father's side of the family relocated to Iran from Iraq, the visa holder's grandfather obtained fraudulent Iranian identity documents for some of his children to allow them to study.
·The visa holder's father and some of his father's siblings did not want to obtain fraudulent Iranian identity documents because they were afraid of being sent to military service; and
·The visa holder submits that while some of his family may be in possession of Iranian identity documents, it is not difficult to obtain fraudulent Iranian qualifications, identity documents or even passports by bribery, and sometimes you can purchase these documents from the authorised issuing authority.
The applicant’s representative provided a further response on 1 March 2019, which included the following information:
·While [Ms E] and [Mr D] have provided Iranian documents to the Department, the visa holder's father was away from the family whilst working and financially supporting them. The visa holder's father was ultimately ostracised from his family because of his parent's disapproval of his marriage to the visa holder's mother, [Ms A]. As a result of these circumstances the visa holder's father did not make any arrangements to include the visa holder in any form of Iranian citizenship acquisition, nor did he obtain any Iranian identity documentation for the visa holder. There are some circumstances in which a Faili Kurd may acquire citizenship such as through marriage, paternal ancestry or five uninterrupted years of legal residence. However, all cases of naturalisation are at the discretion of the Iranian government.
·It is submitted that if the visa holder's father sought to apply for Iranian citizenship through the naturalisation process, he would have faced obstacles. Part of the naturalisation process is that the applicant is not a military deserter. As stated by the visa holder, his father did not participate in any military service and due to this his father would have experienced difficulty in the naturalisation process. It is therefore unlikely that the visa holder's father could have acquired Iranian citizenship.
·The visa holder's birth is not registered in Iran. The visa holder's parents were not able to register his birth due to their marriage not being recognised by the state, and the lack of documentation to confirm their marriage.
·The report also states that where a person's birth has not been registered, and they do not have proof of their parent's marriage or legal residence "they may be rendered stateless..."
·The visa holder maintains that he is a stateless Faili Kurd from Iran. If non-compliance did occur, the visa holder unintentionally provided incomplete information due to a lack of knowledge on his part about his extended family members' circumstances.
In support of the above information, the visa holder provided a statutory declaration signed on 1 March 2019 which stated the following information:
·The visa holder is a stateless Faili Kurd and to the best of his knowledge all members of his maternal and paternal family are Faili Kurds.
·The visa holder has never held Iranian citizenship or documentation. He has only been issued with a fake Iranian driver's licence and a fake Iranian passport.
·The visa holder had only recently became aware that some of his father's immediate family members have declared to the Department that they are Iranian citizens.
·The visa holder claims that his paternal aunt, [Ms E], and paternal uncle, [Mr D], confirmed with the visa holder that his father, [Mr B], has never held Iranian citizenship. The visa holder claims that his father did not have the opportunity to obtain documentation like his siblings because he was not living with his parents at the time this was arranged.
·His parents were undocumented and unofficially married therefore their children, including the visa holder, did not have their births registered.
In a decision dated 30 April 2019, the delegate did not accept the claims made in the applicant’s responses, finding that:
·The applicant provided incorrect information in his Protection application in regard to being a stateless Faili Kurd; he is an Iranian citizen by birth and was so at the time of his Protection application.
·Article 976 of the Civil Code of Iran states Iranian citizenship descends from the paternal line by operation of law and that a person born to an Iranian father is considered an Iranian citizen regardless of whether documentation has been issued.
·As the applicant has confirmed his father’s siblings, [Ms E] and [Mr D], their father (the applicant’s paternal grandfather), [Mr C], are documented Iranian citizens, therefore the applicant’s father and the applicant must also be Iranian citizens.
·The applicant’s submissions in response to the NOICC refuting indications he is an Iranian citizen are not credible. The submission that fraudulent Iranian identity documents are not difficult to obtain, which his family may have provided to the Department, is contradicted by country information indicating such documents are highly difficult to fraudulently manufacture.
·The applicant’s claim in response to the NOICC that he was issued a fake Iranian driver’s licence is not credible, as he previously confirmed he presented an Iranian licence with his correct name and date of birth to obtain a Victorian licence. Such a document would be similar difficult to fraudulently manufacture.

The delegate found the visa was liable to cancellation and having regard to the information before them, they considered the prescribed circumstances and other relevant matters and concluded that the visa should be cancelled. (The applicant did not provide a copy of the delegate’s decision to the Tribunal.)
Non-disclosure certificate and adverse information
On the Departmental file in relation to the current cancellation, [Number], is a certificate dated 10 May 2019 that purports to protect certain information under s.375A. On 25 October 2019, the Tribunal wrote to the applicant under s.359(2), inviting him to comment on the validity of the certificate, a copy of which was attached to the invitation. The same letter also invited him to comment on potentially adverse information under s.359A, some of which was excluded from disclosure through this certificate. The invitation noted that pertinent information contained within the Department folios excluded from disclosure is covered in the Department’s record of decision to cancel the visa dated 30 April 2019.
In relation to potentially adverse information, the invitation noted the following:
Some of the information that was excluded from disclosure under the above-mentioned certificate relates to your identity and compliance with migration law.
The relevant particulars of the information are:
·The excluded document contains an assessment by an officer of the Department of your identity and claim to be stateless, that was prompted by your application for Australian citizenship on 3 November 2014. The assessment took into account information you provided at an identity interview with the Department on 9 August 2017 and throughout your dealings with the Department.
·The assessment finds that you are not stateless as you claimed in your application for a Protection visa, based on a number of reasons.
·The first reason is in regards to your relatives. The assessment finds that two of your paternal relatives arrived in Australia as documented Iranian citizens and information on their identity documents confirms that your grandfather, [Mr C], is also an Iranian citizen. Additionally, two other paternal relatives, residing in [Country], declared dual Iranian and [Country] citizenship on applications to enter Australia. Given Iranian citizenship descends from the paternal line, the assessment finds if your grandfather is an Iranian citizen then both your father, [Mr B], and you are Iranian citizens.
·The second reason is that, according to the assessment, you failed to disclose to the Department that you have an Iranian driver licence, which you provided to VicRoads to obtain a full Victorian driver licence.
·The third reason is that, the assessment notes, an ongoing investigation has uncovered migration fraud involving some of your extended family members.
·The assessing officer concludes that you are an Iranian citizen, that you intentionally misled the Department in claiming to be stateless, and that you withheld your true nationality in an attempt to gain a Protection visa in Australia.
This information is relevant to the review because indicates you may have provided incorrect answers to multiple questions relating to your identity and citizenship in your application for a Protection visa granted 15 September 2010. It also indicates that you are not stateless as claimed in your Protection application but an Iranian citizen. This information would also be relevant to considering whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. It would also be relevant to any other mandatory and/or discretionary considerations in this matter.
If we rely on this information in making our decision, depending on your comments or response, we may find that you have provided false information to the Department in your application for Protection that constitutes non-compliance with subsection 101(b) of the Act. This subsection provides that a non-citizen must complete a visa application form in such a way that no incorrect answers are given or provided. Section 107A of the Act provides that failure to comply with subsection 101(b) of the Act in connection with a previous visa application may be grounds for cancelling a visa holder’s current visa, that is your Resident Return visa granted on 24 September 2018. Furthermore, we may find that you have demonstrated a disregard for Australia’s migration laws and intentionally misled the Department.
As such, this information would be the reason, or a part of the reason, for affirming the decision that is under review.
The applicant’s migration agent responded to this invitation on 8 November 2019, attaching a statutory declaration of the applicant, declared 1 March 2019 with the response. The statutory declaration reiterated the applicant’s claim that there was no incorrect information provided at the time of when non-compliance has been alleged; that he is and remains a Faili Kurd who is stateless as are his family members; that he held a fake Iranian drivers licence; and that he spoke Kurdish since childhood but was warned against speaking it outside of the house. It goes on to say he did provide false information about his age when he arrived on Christmas Island and that he has used an alias. The applicant reiterated that his father, according to his aunt and uncle, did not have Iranian citizenship and that the reason, as far as he understood it, that his father did not obtain Iranian citizenship while other family members did was because he wanted to avoid the compulsory military service. The applicant further claimed he is unable to speak to his parents about these issues as they are both old and their memories are not good. The applicant also stated that the has tried to gain information from his brother and his aunt and uncle while other family members either do not talk to him or he has lost contact.
In relation to the potentially adverse information put to the applicant, the representative submitted that redaction of the identity assessment report dated 18 September 2017 provided to the applicant made it difficult to understand the basis of the Department’s identity finding. The representative noted the attached statutory declaration to the Department addressed the issues raised in the identity assessment interview and subsequent s.107 notice, and that the applicant maintains he did not provide incorrect information to the Department. Regarding the identity and citizenship of her relatives, the representative noted the applicant was not provided copies of the Iranian documentation relied on by the Department, nor document evaluation reports or identity assessments the Department may have carried out relating to family members. Accordingly, the representative submitted these concerns could not currently be adequately addressed and called for provision of these documents, noting the applicant instructs that he has never held genuine Iranian documentation.
In regards to the Iranian driver licence, the representative referred to the applicant’s declaration and statements during his identity assessment interview as to why he did not previously disclose this document. Regarding possible migration fraud by family members and the allegation the applicant intentionally misled the Department, the representative reiterated concerns regarding lack of document access and noted the applicant has had limited contact with these family members.
In relation to the non-disclosure certificate, the agent submitted that, given the invitation indicated some of the information contained within the excluded folios may form part of the basis for affirming the decision under review, that access to these underlying documents is important. The representative also noted that, given the Tribunal’s invitation noted the document indicated an investigation into migration fraud involving the applicant’s family, that findings from such may have formed part of the basis for cancelling the applicant’s visa. Further, given the visa is now cancelled and the certificate was issued over six months ago, these investigations have likely concluded and disclosure would therefore no longer prejudice the investigation. The representative asked the Tribunal to ascertain the applicability of the basis for the certificate and also made submissions that non-disclosure of this material to the applicant may constitute a denial of procedural fairness.
The Tribunal is satisfied that the non-disclosure certificate dated 10 May 2019 had been validly issued and that it has taken the appropriate means to disclose the appropriate gist of the information in accordance with the Act’s adverse information provisions and relevant case law.
Section 109
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. This s. 107 notice is also known as a Notice of a Intention to Consider Cancellation (NOICC). 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.
Prior to the hearing, no submissions were received by the Tribunal other than a statutory declaration from [Mr D] claiming to be the uncle of the review applicant. It was dated 25 November 2019. It states that [Mr D], born in Baghdad in 1955, is Faili Kurd as are all his family members. It further claimed that he separated from his brother, [Mr B] (father of the applicant) in 1970 when [Mr D] was expelled from Iraq and that his brother became estranged from their parents. [Mr D] claimed that he fraudulently obtained Iranian citizenship and then an Iranian passport after military service on the advice of his father (the applicant’s claimed paternal grandfather). The statement then states that [Mr D] is not aware of the documentation of his brother, [Mr B], because of his estrangement from the applicant’s grandfather and siblings.
The Tribunal provided the applicant and his representative until 25 January 2020 for any post-hearing submissions. The representative requested a further extension until 29 February 2020 which was granted. On 29 February 2020, the representative provided a written submission maintaining that the grounds for cancellation for breaching s.101 (providing incorrect information) did not exist and that he applicant is and remains a stateless Faili Kurd whose country of usual residence at the time of application for a protection visa was Iran.
Although more than three months passed, the Tribunal requested the applicant to provide some evidence of this ethnicity. However, he did not. The representative claimed he had difficulties due to his mental health status deteriorating and requested for further extension of time. This was refused on the basis of the considerable passage of time since the scheduled hearing.
When cumulatively considering the evidence, the Tribunal finds that the applicant has not provided it with a genuine or credible account about his background as a Faili Kurd who was stateless at the time of non-compliance in 2010.
Despite being given ample opportunity, the Tribunal has not received a compelling explanation as to the reason the applicant’s paternal aunt, [Ms E], and paternal uncle, [Mr D], provided Iranian birth certificates and Iranian passports to the Department. The Department alleges that these documents show that [Ms E] and [Mr D] acquired Iranian citizenship at birth because their father, [Mr C], the applicant’s paternal grandfather, was an Iranian citizen. Neither was there any compelling explanation that two other paternal relatives, residing in [Country], declared dual Iranian and [Country] citizenship on visa applications to enter Australia. He has provided claims that his father and other family members from whom he is estranged for various reasons are stateless yet have not provided any written statements to support the applicant’s claims. Given their willingness to support his departure from Iran using fraudulently obtained travel and other documents this is not only curious but implausible.
The statutory declaration from the applicant’s paternal uncle, [Mr D], implied that the applicant’s father became estranged from the applicant’s grandfather and siblings and that he was only aware of arrangements to become Iranian citizens by him and his own siblings living and not by the applicant’s father. The Tribunal, as discussed in the hearing, found it difficult to understand that if the applicant’s uncle was able to fraudulently obtain Iranian citizenship then it would not be difficult to for his father to do so. Overall, the Tribunal found it difficult to reconcile the fact that one or more limb of the applicant’s grandfather’s family were not stateless while the limb to which the applicant and his father belonged were stateless. This invited the Tribunal to consider the adjunct arguments to be far-fetched.
For instance, the Tribunal found that there being a fear of conscription as an unlikely reason for the applicant’s statelessness. Compulsory military service for Iranian males is eligible between the age of 18 and 49.[1] Given the applicant’s father was born in 1947, he was not eligible for such service since 1997, inviting the Tribunal to consider there were not meaningful obstacles in the applicant gaining Iranian citizenship. With this credibility concern in mind, the applicant was unable to provide any plausible or credible arguments that his father avoided citizenship when doing so denied educational and health services to himself and other family members. Overall the Tribunal found these arguments weak and implausible when the material advantages in acquiring citizenship were so significant for the applicant’s father.
[1] Iran – Military Conscription, GlobalSecurity.org >
Furthermore, the country information indicates that there are many ways in which stateless Faili Kurds can acquire legal citizenship through the proper channels, further undermining the credibility of the applicant’s plausibility of his claims to be, at least, stateless. In this regard, the Tribunal refers to the DFAT Thematic Report on Faili Kurds in Iraq and Iran issued in 3 December 2014.
With regard to being Faili Kurd or even Kurdish, the applicant used a Persian interpreter. He claimed that, although he identified as Faili Kurdish, he and his siblings were discouraged from speaking the language and/or distinct dialect for fear of being harassed or hurt by the Basij. The applicant said that he did not want to have Kurdish interpreters because he had problems with them and it was easier to use Persian interpreters, The Tribunal enquired to nominate some of the linguistic differences between Faili Kurdish and other Kurdish languages/dialects. The applicant claimed there was not much difference from Ilam Kurdish but did not nominate any specific differences, such as greater use of Arabic words in the vocabulary of the dialect. He further claimed that he spoke Faili Kurdish to his sister who travelled with him to Australia but Persian to his sister’s husband (with whom he lived for most of his time in Australia). The applicant then confusingly added that he spoke Ilam Kurdish at home, not Faili Kurdish, only to undermine this statement by stating that all Kurdish is the same in Ilam Province. He also claimed that his mother was mentally ill and spoke only Farsi at home, undermining his earlier written claims. The applicant also said he was unsure if his brother in law (husband of his sister living in Australia) was Persian or Faili Kurd and implausibly claimed that he did not know because of depression following the death of his brother back in Iran in 2015. (It is noted the applicant provided a written claim that his brother’s suicide occurred in September 2018). These inconsistencies and claimed lapses in memory are simply not plausibly attributable to depression or any other mental health symptom, especial when no medical information was submitted to support it.
The Tribunal further enquired into the manner in which Faili Kurdish culture had been transmitted to or instilled into him. He claimed that other than some foods and speaking Kurdish, ‘we did not have a culture’ as his father dare not speak about it and he was often away. Overall, this confused, inconsistent and implausible testimony invited the Tribunal to consider that the applicant was not Faili Kurd by ethnicity but not Kurdish at all.
During the hearing, the Tribunal enquired whether he had ever held a green or white card that would allow him or his family members some basic residency rights. The applicant claimed that his family did not have any. However in the latest submission, the applicant provided low quality copies (with translations) of temporary residency cards for his deceased brother and his mother. Noting that the applicant admits that fraudulent documents are obtainable in Iran and in the context of the earlier testimony that his family did not have any at the scheduled hearing, the Tribunal places no weight on these documents as being credible documentary evidence that the applicant or any of these family members were not stateless at any time in the past.
There was also another credibility concern for the Tribunal raised by the applicant’s admission that he had applied for a driving licence from the State of Victoria. The applicant claimed that he obtained a fake Iranian driving licence before he left for Iran. In the context of the Tribunal’s other credibility concerns, it has deep reservations about the applicant’s claim about obtaining a fake Iranian licence as it further indicated he was an Iranian citizen at the time of non-compliance.
Furthermore, there was no evidence of the applicant being recognised by a third party or a community organisation to vouch for him being a Faili Kurd or for being a member of the wider Kurdish community in Australia. This was despite having the opportunity to do so in a post-hearing submission or at any time since the issuing of the NOICC. This further invited credibility concerns about correct information not being provided at the time of alleged non‑compliance.
The credibility concerns about the applicant’s claimed ethnicity and statelessness are so deep that that they do not just raise a single doubt or even a few suspicions. The available evidence and the applicant’s otherwise weak and implausible responses have invited multiple reasons, when cumulatively considered, to reasonably assess that the applicant belonged to a family of Iranian citizens, that he was an Iranian citizen since birth and that they did not share any Kurdish, let along Fail Kurdish ethnic heritage.
Based on these cumulative adverse credibility concerns, and not least the information raised in the section 107 letter with the applicant, the Tribunal finds that the applicant has not been a reliable or credible witness of truth regarding his ethnicity as Faili Kurdish or even Kurdish and his citizenship status as stateless usually residing in the Islamic Republic of Iran at the time of his lodgement of a Class XA Subclass 866 protection visa in 2010 which was later granted in 2012.

In short, the applicant was non-compliant with section 101 because the information he provided at the time of the lodgement of his protection visa was not only incorrect, but a deliberate contrivance.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with section 101 by the applicant in the way described in the section107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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 circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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.
The applicant responded to the NOICC. In these responses, he maintained he was a stateless Faili Kurd and that he provided honest responses during the migration process based on his knowledge at the time. He submitted that is his visa was cancelled it would have serious consequences for himself and his partner, an Australian permanent resident who relies on him due to her poor health, and his biological child, [number] months old, and two step-children, aged four and five, all three being Australian citizens. He submitted he suffers depression, exacerbated by his brother’s suicide in September 2018, which may deteriorate if he is separated from his family. He submitted he would face a real risk of harm if forced to return to Iran, or be liable for indefinite detention as Iran does not accept involuntary returnees.
the correct information
In this matter, there was considerable incorrect information provided to the Department by the review applicant at the time of application, as outlined above in the Tribunal’s adverse credibility findings. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled.
the content of the genuine document (if any)
This case involves the applicant having provided incorrect answers on his visa application. Therefore this factor is not relevant in this case and I give it no weight.
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
In this matter, the grant of the visa to the review applicant was based wholly on incorrect information about the applicant’s ethnicity and statelessness. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled
the circumstances in which the non-compliance occurred
When the applicant applied for a protection visa in 2010, he left the Islamic Republic of Iran his country of origin and nationality at a time of some political turmoil and economic downturn. This includes the 2008/09 green movement protests and subsequent crackdown against dissenters by Iranian authorities. The Islamic Republic was and remains ruled by a largely unaccountable government which has a shocking human rights record, deeply resistant to international criticism. Income and wealth inequality was and remains pronounced: while the country has seen the growth of a consumerist culture since the early 2010s, reflected in increased consumption of high-end luxury items, the cost of living for ordinary Iranians has steadily increased over the last decade. An estimated 40 per cent of Iranians live below the World Bank defined moderate poverty line of less than US$3.10 per day.
The Tribunal does not accept the applicant is either stateless or is ethnically Kurdish or that he belongs to a religious minority subject to any systematic and discriminatory persecution. There is no credible evidence to suggest the applicant was involved in any political protests or was a person of interest to the authorities for any reasons at the time of non-compliance
Nonetheless, the applicant does appear to have lodged his protection visa application on the basis that Iran’s economic deterioration offered him few employment and other material opportunities. In this regard the Tribunal places some amount of weight in which the non‑compliance occurred in favour of having this visa not remain cancelled.
the present circumstances of the visa holder
The applicant first arrived in Australia on 31 March 2010 as an irregular maritime arrival. Since being granted a protection visa, he has resided in the community for nearly nine years. His immediate family includes his partner, who resides permanently in Australia, and biological infant child and two step-children, who are all Australian citizens. In his response to the NOICC, the applicant submitted that his partner suffers from ongoing health issues and that his presence is necessary to support her and care for the children, including financially. The applicant also claimed to suffer from depression, exacerbated following his brother’s suicide.
Neither the applicant nor his representative provided any medical evidence about the applicant’s mental health status to support the quality of some of the applicant’s responses or his present circumstances. In the last correspondence with the applicant’s representative, it was posited that his mental health has deteriorated even further since the scheduled hearing. Although the medical evidence is not strong and there is no evidence that symptoms cannot be treated through counselling and medication, the Tribunal accepts the applicant does have some genuine mental health symptoms but they are not so serious as requiring urgent and ongoing medical treatment. Overall, the Tribunal places some weight on the applicant’s mental health having deteriorated in recent years (as would be expected under the circumstances of a visa being cancelled) in favour of the visa not remaining cancelled.
The Tribunal notes the applicant claims to have been attending an evangelical Christian Church and claimed to be a practising Christian. A baptism certificate from [a] Church dated [December] 2019 has been submitted to the Tribunal. During the hearing, the applicant claimed to have converted to Christianity six months prior to the hearing; however, the Tribunal has serious credibility concerns about the authenticity of this conversion or apostasy from Islam as being genuine. The applicant struggled to answer rudimentary questions about Christianity and the denomination to which he claimed to belong. The Tribunal notes the applicant’s conversion to Christianity occurred after his visa was cancelled in April 2019. Without being the arbiter of doctrine, the Tribunal finds that the applicant’s conversion to be shallow and lacking any depth of knowledge commensurate with a convert to any Christian denomination. Accordingly, the Tribunal finds the applicant’s claimed apostasy from Islam and claimed conversion to Christianity to be a contrivance. For this reason, the Tribunal places no weight on this as relevantly reflecting on his present circumstances.
During the applicant’s time in Australia, there is no evidence to the contrary that he has not been a law-abiding resident who works to support himself and his family. The applicant’s partner suffers from ongoing, serious health issues and it appears that she does not have any other family in Australia. The Tribunal accepts the applicant’s partner is reliant on the visa holder to assist with the care of her children as step children and his own child.
During the hearing, the Tribunal has been particularly perturbed by the claim that the biological father of his partner’s two older children had been accused of abducting one his children and was subject to a court order. The Tribunal requested documentary evidence, such as a police report or court order. However no such evidence was submitted. The representative explained the applicant required more time and partially explained the lack of material due to the applicant’s deteriorated mental health status. On balance, the Tribunal accepts the applicant’s account that his partner’s relationship with her former spouse is acrimonious; that the biological father has limited access to the applicant’s step children; and that he is effectively the primary father figure in the lives of his partner’s first two children and that they rely on the applicant for emotional and material support as well as for safety.
As a result, if the applicant was detained or returned to Iran, his partner and children would be left unsupported and it is highly likely that she will not be able to care for their three young children, including a young baby. Also, the applicant is a father figure to his step-children who refer to him as ‘father’ as they have limited contact with their biological father.
Even when accounting for those factors that detract from the applicant’s present circumstances and particular emphasis on the applicant’s paternal care responsibilities, the Tribunal finds that those factors in his current situation, when considered cumulatively, do amount to being compelling and compassionate reasons in favour not having his visa remain cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
While the applicant has maintained that he has continued to provide correct information to the Department and the Tribunal, including in relation to his identity as a stateless Faili Kurd, the Tribunal has not accepted this. As the applicant has maintained these contrivances, the Tribunal places considerable weight on this factor in favour of the visa remaining cancelled.
any other instances of non-compliance by the visa holder known to the Minister
According to the Department, there are no further instances of non-compliance by the visa holder. The Tribunal places no weight on this factor in favour of the visa remaining cancelled.
the time that has elapsed since the non-compliance
The non-compliance occurred when the visa holder lodged his Class XA Subclass 866 protection visa application on 10 September 2010. It is now 2020. This is a considerable amount of time.
Therefore, this factor should be given significant weight in favour of the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law by the applicant and the Tribunal, therefore, gives this factor no weight towards the visa being cancelled.
any contribution made by the holder to the community
The applicant has made a contrived claim that he is a committed Christian participating in a faith community. During the hearing, he was asked whether he makes any other contributions to society, including to the Kurdish community, which was also a contrivance. He responded that he does not. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.
Discretionary considerations
The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.
whether there would be consequential cancellations of other persons’ visas under s.140
There are no other persons whose visas may be cancelled as a consequence of the applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Should the applicant’s subclass 155 visa remain cancelled, he would not be eligible to apply for another visa in Australia and face the strong possibility of being detained and then removed from Australia. He also faces a more remote risk of indefinite detention. Should the applicant be returned to Iran, it would be extremely difficult for his children to maintain a personal relationship with him. It is open to him to apply for a offshore partner visa but with no guarantee of success.
Refoulement considerations
Refugees Convention and complementary protection provisions
As outlined above, the Tribunal does not accept the applicant’s ethnicity to be Kurdish or Faili Kurdish. Neither has he advanced to have been politically active in the past or to be a person of interest to the authorities based on his political opinion. Nor does the Tribunal accept the applicant was stateless at the time of application or that the applicant was not an Iranian citizen. It does not accept he is an apostate from Shia Islam or a Christian convert. During the hearing, the applicant did not advance he would express any anti-government political opinion into the future.
The Tribunal accepts there is a chance of serious harm in the applicant as a failed asylum seeker; however, the applicant by his own admission does not have any social media profile and has never been a person of interest to the authorities in the past. While the applicant has a real chance of being questioned on arrival, the Tribunal does not accept this will lead to arbitrary arrest, forceful interrogation, serious physical maltreatment, medium to long term detention or any other serious harm. Accordingly the chances of serious harm as a failed asylum seeker or forced returned or any other related Convention reasons is assessed to be remote and insubstantial and do not amount to being a real chance of serious harm, if he were to returned to Iran into the reasonably foreseeable future.
The Tribunal finds the applicant has a real chance of being released into the community and be subject to surveillance and monitoring. However, this surveillance will not lead to a real chance of serious harm as he will not long remain a person of interest to the authorities. Moreover he will have the same access to health services, including mental health services, as other Iranian citizens as he is not stateless. While he will face challenges in finding work and resettling in Iran, he will be returning to his family and he will not face a real chance of serious harm for a Convention reasons arising from his economic circumstances.
Having considered the applicant’s Convention claims both individually and cumulatively, the Tribunal accordingly finds the applicant does not have a well-founded fear of persecution from any Convention reasons if he were to return to Iran.
Noting the Tribunal’s adverse credibility findings in the applicant facing a real chance of serious harm for a Convention reasons, the Tribunal also finds there are no substantial reasons to believe the applicant will face a real risk of significant harm arising from his religion, political opinion, ethnicity, nationality or membership of a particular social group.
The Tribunal also finds the risk of significant harm arising from being a forced returnee or arising from his economic circumstances and mental health symptoms to be remote and not to be a real risk, as a necessary and foreseeable consequence of the review applicant being removed from Australia to Iran.
Having considered the applicant’s accepted circumstances, both individually and cumulatively, the Tribunal accordingly finds the applicant does not satisfy the Act’s complementary protection provision as required by s.36(2)(aa).
The Tribunal places very little weight in Australia’s obligations of non-refoulement in favour of the review applicant.
Rights of the Child
One of these principles is that officers consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. The PAM states that “if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children”.
All the children affected in this matter are Australian citizens.
Based on the available evidence before it, the Tribunal can confidently assess that it is in the best interests of the applicant’s biological child as well as his step children not to have this visa cancelled. Whilst they may be able to contact each other online, this is not an adequate substitute for physical contact and interaction. whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. The permanent, or at least, long term separation of the applicant from his children would have serious and long-lasting detrimental effects on his children. In line with the PAM’s requirements to treat the best interests of the children as a primary consideration, the Tribunal places significant weight in favour of not cancelling the applicant’s visa.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
When considering the applicant’s overall situation, the Tribunal, however, does concede that there is a degree of emotional, psychological and financial hardship that will be caused to the applicant if his visa remains cancelled. The Tribunal is not least concerned with a high degree of hardship to be faced the applicant’s partner and their children in the context of his partner’s former partner being subject to an intervention order against him. In this regard, the Tribunal places a significant amount of weight on the degree of hardship to be faced by the applicant and other family members in favour of this visa not remaining cancelled.
Conclusions
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.
Carefully weighing the information before the Tribunal has been difficult in this matter. The non-compliance that led to the grounds for this visa being cancelled by the Department was very serious and significant.
During this review, the applicant continued to clumsily maintain his contrivances that the non-compliance had not occurred. His disregard for the integrity of Australia’s migration and humanitarian programmes strongly mitigated against him.
Nonetheless, on assessing the factors and with particular emphasis on the wellbeing of the applicant’s family members and the significant amount of time since the non-compliance, the Tribunal finds that the factors against having this visa remain cancelled outweigh those otherwise serious countervailing factors in favour of the visa remaining cancelled.

Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
The applicant should be aware that the Tribunal has reached this decision only marginally in favour of him and his family members.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Brendan Darcy
Member

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

[2020] AATA 830

12 March 2020

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