1912612 (Refugee)

1912612 (Refugee) [2020] AATA 3376 (6 April 2020)
DECISION RECORD
DIVISION:  Migration & Refugee Division
CASE NUMBER:  1912612
COUNTRY OF REFERENCE:                   Iran
MEMBER:  Rodger Shanahan
DATE:  6 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant's Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information provided in protection application – claimed to be stateless Faili Kurd – applicants and children are Iranian citizens by birth – false identity – access to healthcare – lack credibility as a witness– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101,107,109, 140, 376, 424AA, 438
Migration Regulations 1994 (Cth), r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant's Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa-holder had provided incorrect information on his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal's jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 11 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The visa-holder arrived on Christmas Island as an illegal maritime arrival [in] April 2010 claiming to be an undocumented, stateless Faili Kurd born in Iraq. He made a request for a refugee status assessment on 29 June 2010. In support of the application the visa holder provided a Statutory Declaration dated 29 June 2010 outlining his claims for protection
On the application form titled Application for a Protection (Class XA) visa at Form 866 Part C he provided the following answers (in bold) to each question.
a.What is your full name? [Applicant Name (comprising Given Name 1 and Family Name 1)]
b.What other names have you been known by? (No answer provided)
c.Date of Birth. [Date 1]
d.Place of Birth. Town Baghdad, City Iraq
e.Your citizenship at birth ? Stateless
f.Your current citizenship ? (No answer provided)
g.If you are stateless, how, when and why did you lose your citizenship? I am a Faili Kurd, I have always been stateless
h.Why did you leave that country? Please refer to my Statutory Declaration
i.What do you fear may happen to you if you go back to that country? Please refer to my Statutory Declaration
j.Who do you think may harm/mistreat you if you go back? Please refer to my Statutory Declaration
k.Why do you think this will happen to you if you go back ? Please refer to my Statutory Declaration
I.Do you think the authorities of that country can and will protect you if you go back? If not, why not? Please refer to my Statutory Declaration
I consider the statutory declaration referred to in the visa holder's answer to questions 42, 43, 44, 45 and 46, relates to his Statutory Declaration dated 29 June 2010 submitted as part of the RSA process. He stated the following, in part, in his Statutory Declaration:
Introduction: "I am a stateless. I was born in Iraq but I have never held Iraqi citizenship and I have no right to go back. Furthermore, even if I were able to go to Iraq, I do not believe I would be safe there. I believe that I would face persecution because of my ethnic background and because I would be seen as an Iranian. I have lived most of my life in Iran. My wife and children are also stateless."
The reasons I left Iran: "I was born in Baghdad Iraq. As far as I know nobody in my family ever had Iraqi citizenship. I was only about seven years old when we were forced to leave. I do (sic) remember any details about the time we were expelled. My brother [who] was about 19 at the time we left did not come with us. I was told the government would not let him go, but I do not know why this occurred. We have not had any news from him since then.
My family went to Elam. I do not know when my parents obtained Green Cards, but as long as I can remember we have had these cards. These served as identity cards, but they did not give us any real rights. We had to renew then every few years. To begin with I was on my father's card, but I got my own when I was about 17 or 18 years old."
Shortly after we arrived in Tehran my wife was involved in a car accident. We were on a [vehicle] when we were hit by a car belonging to the Revolutionary Guard. Someone took us to the [Hospital]. I had [various injuries]. I was in hospital for only two or three days. My wife's [Body Part 1] was badly broken and she required five operations to try and fix the problem. She still suffers from pain and her [Body Part 1] has not been properly fixed. I believe that if we were Iranian citizens she would have received better treatment and would not continue to have these problems.
About 8 months before I left Iran I had a sore tooth so I treated by putting some alcohol on it. When I went out I was stopped in the street by the Basij. They could smell the alcohol on my breath so the immediately detained me and accused me of drinking. I told them I had not been drinking and explained what had happened. They could tell I was a Faili Kurd because of my accent. They insulted me because of my background and took me to a Mosque where I was badly beaten. I was held at the Mosque overnight...
I believe that my treatment at the hands of the Basij and the religious judge was much worse than it would have been if I had been an Iranian citizen. In these cases people are usually sent for a blood test to see if they had been drinking, but because I am a Faili Kurd they did not do this. About 15 days before I left I was stopped again at a road block. When they found out I was a Faili Kurd, they searched me and stole me (sic) money and my watch.
What I fear may happen to me if I return: I do not believe that the Iranian authorities will allow my family and to re-enter Iran. I fear that if we are sent back to Iran I will be arrested because I left illegally. I believe that I would be treated more harshly than other people who left in an irregular manner because I am a Faili Kurd and that I may have serious harm amounting to torture if I am detained. Furthermore, even if I could re-enter Iran without facing these problems, my family and I continue to face the discrimination and harassment that we have faced in the past. I do not have the right to work legally and my children will not have the right to go to school.
Who might harm me if I return: I fear the Iranian authorities and groups such as the Basij and the Revolutionary guards.
Why I think that might happen to me if I return: Because I am a stateless Faili Kurd. We have no rights in Iran.
Do I think the authorities can protect me if I return? I fear the authorities. They will not protect me.
Based on this information and meeting all other relevant criteria the visa holder was granted a Protection (subclass 866) visa on 13 April 2011.
Subsequent to the grant of the visa holder's Protection visa the following information came to the attention of the Department:
On 28 April 2015 the visa holder and his wife submitted separate applications to obtain Australian citizenship by conferral. As part of the citizenship application process they attended separate identity interviews with departmental officers on 28 November 2016. During this interview, the visa holder disclosed to Departmental officers that he, his wife, father and siblings were Iranian-born citizens of Faili Kurdish ethnicity.
He stated that he and the visa holder departed Iran using genuinely issued Iranian passports in the surname [Family Name 1] but were told to claim they were born in Iraq on their arrival on Christmas Island. Following the identity interview on 28 November 2016, he provided scanned copies of the Iranian birth certificates (shenasnameh) and Iranian national identity cards issued to himself and his wife, corroborating their status as Iranian citizens by birth. A translation of the visa holder's shenasnameh by a departmental officer disclosed her identity details at birth as follows:
a.   Birth certificate number 1
b.   Name [Applicant Alias (comprising Given Name 1 and Family Name 2)]
c.   Date of birth [Date 2]
d.   Place of birth [City 1]
e.   Father [name], birth certificate number [deleted]
f.    Mother [name], birth details blank
g.   Date of issue [deleted]
A translation of the visa holder's Iranian national identity card also disclosed his identity details as follows:
a.   National ID [number]
b.   Name [Given Name 1]
c.   Surname [Family Name 2]
d.   Date of birth [Date 2]
e.   Birth certificate [number]
f.    Fathers [name]
On 4 February 2019 you were issued a Notice of Intention to Consider Cancellation relating to your Protection visa application. In response, you provided a Statutory Declaration dated 27 February 2019 which stated "it is correct I provided incorrect information in my visa application" and confirmed the visa holders and their children were Iranian citizens by birth. You conceded that the decision to grant your Protection visa application was substantially based on incorrect information, however, you claimed you were influenced by "wrong advice" provided by Iranian asylum seekers while detained on Christmas Island.
The visa-holder's claims were substantially based on his statutory declaration dated 29 June 2010 in which he stated they had experienced persecution and discrimination in Iran due to being undocumented, stateless Faili Kurds.
The shenasnameh and Iranian national identity card submitted to the Department following the visa holder's identity interview on 28 November 2016 indicate that he is an Iranian citizen by birth and remained an Iranian citizen at the time he submitted his Protection visa application. These official documents indicate he was born in Iran as [Applicant Alias] on [Date 2].
As an Iranian citizen by birth the visa holder has the right to equal protection by Iranian law (Constitution of Iran, 3. Rights of the People) which states:
a. Article 20 - All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria.
Country information for Iran states Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranian citizens. There is no evidence of systematic discrimination against Faili Kurds, based on their ethnicity, seeking to access services in Iran.
Under Iranian law Article 976, children acquire Iranian citizenship automatically at birth from their Iranian citizen fathers (paternal line), regardless of whether they were born in Iran or outside of Iran. As the visa-holder is an Iranian citizen by birth it therefore follows that the visa holder's children [named] are also Iranian citizens by birth.
Discussion at Hearing
The visa-holders were advised about the existence of s 376 certificates on their files (they were treated the same as if they s 438 certificates). They related to the identity assessment reports which they had been made aware of and covered methodological issues surrounding the way in which DIBP satisfied itself concerning their identities. The essence of this information relating their identities had been related to them previously but the methodology by which the government determined this hadn't. The Tribunal was concerned with their true identities more than the methodology behind determining it. There was also correspondence between government departments in order to get their contact details but this wasn't relevant to their case.
The visa holders were asked if they were known by any other names and [the applicant] said he was known as [Applicant Alias] while [his wife, Ms A] said that she was known by the name [Ms A Alias]. They were advised of the relevant information they had given on Form 866 C which was later found to be incorrect, and what the correct information was regarding their names, dates of birth and real citizenship status.
The husband claimed that he had owned up to the correct information at his DIBP interview and he was told that this would be covered later. He claimed that he had originally given incorrect information because when they arrived there were a few Iranians in the group. He told them that he had been in prison for [number] years and they told him not to reveal this but claim to be a Faili Kurd, whereas in reality he was Kurdish. He wrongly took their advice. He knew he was told to tell the truth and knew what he was saying what not the truth.
[Ms A] claimed that she wanted to tell the truth but her husband threatened to take the children from her and send her to her father's if she told the truth. Asked if they had legal representation when they made their claim at Christmas island, she claimed she wasn't sure but they were the same as the others. Asked the question again, they agreed they had representation. Asked if they explained their real story and the advice other Iranians had told them about what to say and sought the representative's advice, she claimed that whenever she wanted to tell the truth her husband would threaten her.
The husband said that if he had wanted to explain from the beginning he would have told the truth at the start. He said they didn't want to go back to Iran as he had problems given he had been in prison so he went with the advice he received. He did not seek any advice regarding Australian migration issues from any Australian person. He also said that they told one of the interpreters that they wanted to go back and say they made a mistake that they were really Iranian but they were told indirectly that no matter what they did it would have no effect.
Asked if he had mentioned this interaction with the interpreter previously, he claimed that he hadn't. The wife said that they went together to the interpreter and the interpreter told them to tell the authorities they were Kurds. She hadn't mentioned this previously as she didn't think it was important. They were told that it was difficult to give such a claim much weight given they had never mentioned it before and it could not be independently verified.
They were asked why they didn't tell the truth prior to 2016 about their names and backgrounds, [Ms A] claimed that they debated this at home and she wished they told the truth but nobody asked them the questions. The husband said they were waiting for an occasion to tell the truth and this came in 2016. Asked why they had to wait for an occasion, he claimed that if they told the truth his problems would raise again. The husband claimed that he had told so many lies that he had damaged himself. All their problems had begun when he went to prison and he wouldn't have lied from the start if he hadn't gone to prison.
They were asked whether they voluntarily provided their correct information in November 2016 he claimed that they were asked some questions then he told the truth. Asked if they were confronted with any adverse information, he claimed they didn't and just asked if his name was [Applicant Name]. He was then advised about s 424AA and it was put to him that he had other family members who had come to Australia for whom there were concerns about their claimed identity. He said [some of his siblings] did but only the brother had problems as he said he was a Faili Kurd.
His brother came after 2013 but he didn't know the length of the visa that he was given. It was put to [the applicant] that the Tribunal believed there were already concerns about his family members (he had not mentioned his sister, she hadn't mentioned him, and his brother's background) so when he attended DIBP in November 2016 and told them his real identity he already knew that their story about their identity was collapsing.
He claimed that he didn't know what information his siblings had given to DIBP only that he had [specified siblings] here. He was asked if he had told DIBP about the existence of his sister and he said he had but had put their place of birth as Baghdad — one sister had changed her [name]. He had said they were all Faili Kurds born in Baghdad and that they were all stateless, even though they weren't.
Neither of them worked in Australia, nor had they ever worked. [Ms A] was a pensioner and [the applicant] was her carer — they were both paid pensions by the government. She claimed that she had problems with her [specified body parts]. It was put to them that they were being paid pensions by the government based on a refugee claim that was based on false information —[Ms A] said that she was very sorry for that and didn't feel good about this.
Although [the applicant] had received a speeding fine in a school zone but there had been no breaches of the law. Asked if they had contributed to the wider Australian community, [the applicant] said that he could only look after his children and spouse. This was also what [Ms A] did.
They were asked why, if they just wanted to pass themselves off as undocumented Faili Kurds they didn't just claim this rather than change their names and dates of birth. He claimed they did this on advice of others on Christmas Island. They didn't check this advice with their Australian representative — they didn't know English so could only converse with others in their language. Their lawyer also just took them to an interview room for an hour or two — they were stressed and scared and didn't have access to a lawyer out of that time.

It was put to [the applicant] that he had claimed to have spent [number] years in prison in Iran for [Offence 1] and was asked why he had waited until February 2020 to mention this. He said this wasn't an excuse for his lies but to explain it. he was asked why he didn't mention this earlier — perhaps in response to his NOICC. He said they had a different lawyer previously and this lawyer had written it. the member said that he could not find a record of this being mentioned previously and the current adviser said that he would look for it (he later said he couldn't find it and was advised that he would be given time post-hearing to provide evidence relating to him having made this claim).
It was put to [Ms A] that in a July 2017 statutory declaration she had claimed that a photo of her husband and [children] had been shown on social and print media. She claimed that everybody knows they had come to Australia by boat — she was asked how she knew this and she claimed everyone watched TV and would know. It was on the news of every TV channel in Australia. She was asked if she had evidence and she said she had a photo at home. Asked how people would know it was her, she claimed that only those who knew her would know. The husband claimed that his [relative] from [Country 1] had said that he had recognised them on the TV. Asked if the Iranian authorities knew, he claimed that he didn't know.
They were also advised about the ITAO and that one had been conducted relating to them. It concluded that there was no impediment to their returning to Iran. He claimed he had lied at the start but was telling the truth now and had gone to Interpol to get the timeframe for his legal case and had problems with the Basij and Sepah because he was Kurdish and his language was also Kurdish. He had [committed Offence 1] and went to court — it was an open court that was shown on TV. The people from Basij/Sepah came to court and the other defendant was hanged.
His problems began when he left prison as he was recognised in Iran. They didn't have any safety or financial help. When he was in prison the Iranian authorities killed two senior Kurdish Iranian officials which was how they treated Kurds. He was asked if his case and name would have been reported in the newspapers and he claimed they would. He was asked to provide copies of this and he said he couldn't provide them from so long ago. He claimed that before [year] (he was in prison [year range]) there were no records of prison time (according to Interpol) only on computer and he had to get this in person. It was put to him that he could get back copies of newspapers and he undertook to do this post-hearing.
It was put to them that their childrens' visas would be cancelled but they had claimed that their daughter [Miss B] would be separated from them and was asked why this was the case. They said she was an Australian citizen. It was put to them that she would also be an Iranian citizen and they wouldn't be separated. [Ms A] said she had no Iranian documentation and had lots of medical issues. It was put to her that the doctor's letter was brief and didn't mention medical support being unavailable in Iran.
She claimed that because of sanctions there was no medication in Iran and coronavirus had made the situation worse — she had to see a doctor every six months for [Miss B]'s [Medical Condition 1]. She was better now and had to see a doctor every year — she may need an operation when she grows up. Country information was put to her that indicated there was pediatric [Medical Condition 1] surgical care available in Iran, the coronavirus would be temporary and the shortage of medicines was confined to a limited range and there was a new arrangement recently arrived at with the Swiss to allow humanitarian imports.
She claimed this was correct but her medication was not available for everyone. The member asked for some country information that would support this claim. [The applicant] said that medicine and doctors did exist but that it was hard to access for anyone. He was asked about his new passport and he claimed that he needed it in order to get the information from Interpol. He claimed that he had shown his cancellation documentation and received the passport. [Ms A] said it was easy to get a passport but they gave you a hard time of you got there. It was put to her that country information indicated the Iranian authorities weren't interested in people without profiles who returned to Iran.
[The applicant] stated that foreign nationals were detained and put into prison and this would be worse for him as he had problems before and he would be detained and tortured. The adviser was given additional time with the applicants.
On return, [the applicant] claimed that in the 2016 interview, it only lasted half an hour. They went for a citizenship interview and they asked him about his identity and if he was who he claimed and whether he had any family members in Australia and he told them. They asked how he came here and he said he came with the passport and told them the whole truth. A man asked him to bring his documentation which he did a few days later after he got the documents from Iran.
He was asked whether he thought it strange they were asking him about his identity if he had been accepted as a refugee and he claimed he was shocked as they were there for citizenship testing. It only took half an hour as he told the truth. The person there told him that because they had told the truth they would help him. He was asked if he knew at this time that his relatives had told the authorities they were Iranian citizens born in Iran.
He was told the Tribunal was concerned that he had taken years to tell the truth and claimed benefits and when the authorities began asking him about family members and how he had travelled here, and that he would have realised that his false claim may have been exposed so he only told the truth at this stage because he had little choice. He claimed that if he had been asked the right question between 2011 and 2016 he would have told the truth.
He claimed again that he had told his previous lawyer about his [prison] sentence but then had changed their lawyer. [Ms A] then claimed that their lawyer told them not to put it in the letter but wait until they came to the Tribunal. The member requested they provide a statutory declaration from this lawyer saying he had given this advice. He had told them it would make no difference and they should wait until the hearing. This lawyer had written the NOICC and told them they may even go to the Federal Court.
Regarding the health issue, the sanctions regime and because he had been in prison [the applicant] claimed he would be unable to provide for his family. He claimed that things were available but they were expensive. They had kept his children in hospital as hostage for a week until he paid for them which he did. He was asked if he had previously claimed his wife had been refused medical assistance because she wasn't an Iranian citizen and agreed he had. It was put to him that it was difficult to give his health care claim much weight given he had previously falsely made a healthcare-related claim that was fabricated.
He claimed that life was hard for the poor. There was no healthcare system such as Medicare and children couldn't go to school if one was poor. It was worse for Faili Kurds. It was put to him that country information indicated that Kurds may face some societal discrimination but it would not amount to persecution.
The adviser claimed that the children being raised in Australia could be considered as contributing to Australia. He claimed that [the applicant] had been truthful since 2016. They were exposed to bad influence in the camp that made them tell a fabrication and they made a mistake in the past but their case should looked at in its entirety. The girl [Miss B] would have better life opportunity in Australia than Iran. The health care would also be much better in Iran — he was advised to provide some more medical information given that she only had to see a doctor annually which didn't appear to be a serious case.
Analysis
Overall, I found the applicant to lack credibility as a witness. I found that he knowingly provided false information regarding her name, date of birth and citizenship status in order to be granted a protection visa and continued with this fabrication until November 2016. I do not accept that he did this because he was advised to do so by other Iranian detainees on Christmas Island or that he wanted to tell the truth but was just looking for an opportunity, which came during the identity interview in November 2016. He knew that he had not told the truth and it was open to him at any stage prior to this to do so, yet he didn't.
I also do not accept that he approached an interpreter on Christmas island and told him after their interview that they had made a mistake and wanted to go back and say they were Iranian but the interpreter told them this would have no effect. He had never mentioned this alleged interaction with the interpreter previously either orally or in his statutory declaration response to the NOICC given to him (folios 260-66), or his pre-hearing submission (folios 54-5)
While it is possible that others offered advice about what to say in order to get a visa, the visa-holder chose to accept this and to tell and maintain a lie regarding his and his family's identity and citizenship which was accepted by the Australian government and they received a range of benefits as a result. He made a conscious decision not to tell the truth in order to achieve a personal advantage.
I do not accept that he did so because he was uneducated — this relies on a previous claim that he was denied schooling because he wasn't an Iranian citizen. Given this was not true it follows that he has received an education, sufficient at least to know that the story he gave was fabricated. And regardless of his level of education he knew that he was giving a fabricated account and that there was a personal advantage for doing so.
Because neither he nor his family are stateless Faili Kurds born in Iraq, it follows that the claims that are outlined in the visa-holder's statutory declaration are also fabricated. In particular, his claims to have been denied an education, that his wife received poor treatment after a car accident and they were denied compensation are all reliant on his claim to be stateless, as is his claim to have been accused of drinking alcohol and denied a blood test before being sentenced and lashed by a court.
I also do not accept that [number] years ago the visa-holder had [committed Offence 1], the authorities found out and he was convicted of this in [year] in a trial that was broadcast live on national TV and not released from prison until [year]. He had never mentioned this claim in his protection visa application. I do not accept that he had told it to a previous lawyer who had advised them not to include it in their claim. He was given the opportunity to provide evidence in the form of a statutory declaration from their previous lawyer yet failed to do so.
I have taken into account the post-hearing submission that included a bridging visa application from May 2019 in which he mentions his conviction and sentencing and a partially translated newspaper article in which a January [year] court case against an armed robbery gang is mentioned and a list of network members is noted that includes someone of the name [Applicant Alias with Given Name 1 spelled differently]. I do not lend much weight to the claim or the newspaper article as evidence of his criminal activity.
To begin with the visa-holder never mentioned anything about him being connected to an armed robbery, only that he [committed Offence 1] and was perceived to be connected to a group opposed to the government. There is nothing to indicate that the [person] mentioned in the article is the same person as the visa-holder, and I note the 'applicant in his bridging visa application says that he was sentenced to [number] years in prison where he served [specified year range], whereas the actual account of the trial says it commenced in [a later year] and there is no indication of anyone's guilt or sentencing.
For the reasons mentioned above, the Tribunal finds that there was non-compliance with s.101 by the visa-holder because he provided incorrect answers to the relevant questions in Form 866C referred to in the s. 107 notice and referred to above.
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 correct information is that at the time of lodging the application for a protection visa, the visa-holder was not, and never had been a stateless Faili Kurd known as [Applicant Name] and he was and always had been an Iranian citizen known as [Applicant Alias]. The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program. The Tribunal gives significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document.
The Tribunal is satisfied that the decision to grant the visa-holder a protection visa was based on findings that there was a real chance that the visa-holder would suffer serious harm because he was a stateless Faili Kurd who had been targeted by the Basij and because they had left illegally, could not work legally and his children did not have the right to go to school.
For the stated reasons, the Tribunal has found that the visa-holder is not, and never has been stateless and as a consequence of being an Iranian citizen is able to work, enter and re-enter Iran legally and that he and his family have access to the Iranian health and education systems. The Tribunal therefore finds that the decision to grant the visa-holder a protection visa was wholly or partly based on the incorrect information that the visa-holder provided in the application for a protection visa.
The circumstances in which the non-compliance occurred
The Tribunal considers that the visa holder has knowingly provided incorrect information to the Department with respect to his identity, his citizenship status in Iran and his fear of returning to Iran as part of his protection visa application for the purpose of gaining a visa. I have not accepted that this was the result of any suggestion on the part of someone else but that he willingly and knowingly provided this false information.
The present circumstances of the visa holder
The visa-holder has his wife and children with him in Australia and he has had one other child ([Miss B]) since they have been in Australia. That child is an Australian citizen and, by virtue of Iranian citizenship laws and her parent's citizenship status she is also an Iranian citizen. I have noted that there is a medical certificate that indicates that [Miss B] has [Medical Condition 1] and had [unrelated] surgery in 2015.
Whilst I accept that there are unilateral US sanctions in place against Iran, I am not satisfied that [Miss B] would be unable to get appropriate care there. The visa-holder's wife originally claimed that there was no medication in Iran, then later that it wasn't available for everyone. The visa-holder himself then said that it was available but were expensive and that there was no healthcare system in Iran like Medicare.
Country information indicates that there is quite a comprehensive healthcare system in Iran, including a charitable health scheme for the uninsured poor[1]. Paediatric [Medical Condition 1] care was available in Iran[2], [Miss B] only requires to see a specialist annually which would indicate that her medical situation is stable and no compelling evidence was presented to the Tribunal that her medical condition was such that she would suffer serious harm if the family returned to their native Iran. I have taken into account a letter provided post-hearing from [Miss B]'s GP but lend it little weight. It says the child needs to be under close supervision by [named] Hospital yet this seems at odds with the fact she only needs an annual checkup. There is also no reference made to the health system in Iran or why there is any reason it could not be accessed or be unable to address the child's condition.
[1] 01/069 073.pdf, accessed 25 March 2020
[2] [Details deleted]
Other members of the visa-holder's family also arrived in Australia via boat in 2013 but their current status in unknown. The visa-holder's wife has a number of siblings in Iran. Given this I am satisfied that the applicants could all enter and reside in Iran as citizens of that country and that there is family support available to them there. The hearing was conducted in Farsi which indicates that they are comfortable in Iran's national language.
Although the visa-holder's wife claimed to have physical and psychological injuries that meant her health would deteriorate on return to Iran and she would be unable to look after the children, the medical evidence in support of this claim that was given to the Tribunal simply shows a list of medications and her medical history (folio 50). None of this appears to be life-threatening nor are there any notes that would indicate treatment for any ailment is unavailable in Iran.
I note that the visa-holder was on a pension as his wife's carer, but the visa-holder's wife has family in Iran that could assist if required, they have access to the Iranian medical system and the visa-holder could seek employment commensurate with his qualifications, training and experience.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The visa-holder maintained his claim regarding his identity and statelessness until his citizenship identity interview in 2016. And whilst he has subsequently admitted that he has lied about her background, I am not satisfied that this was other than the result of his realisation that the Department had worked out that they were not stateless as a consequence of examining the documentation provided by his extended family members after they arrived in Australia. As a consequence I give little weight to his belated truthfulness.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gives this consideration some weight in favour of the visa-holder.
The time that has elapsed since the non-compliance
I note that a considerable time has passed (ten years) since the visa-holder arrived in the country. The seriousness of the deception practised by the visa-holder, including providing a false name, claiming to be stateless when he wasn't and advancing a fabricated statement of claims, meant that not only was he and his family granted a protection visa but he has also accessed social welfare benefits that would not normally have been open to him if he had been truthful in the first place. Because of this I do not give much weight to the time that has elapsed since his original non-compliance.

Any breaches of the law since the non-compliance and the seriousness of those breaches
Besides a speeding fine in a school zone there is no evidence before the Tribunal in relation to any breaches of the law or any other instances of non-compliance. The Tribunal gives the lack of breaches of law some weight in favour of the visa-holder.
Any contribution made by the holder to the community.
There is no evidence that the applicant has made any significant contribution to the broader community. He has not worked since being in Australia and is currently in receipt of social welfare. The adviser noted that raising his three children contributed to Australian society however I note that two of them are not Australian citizens and raising one's own family is not necessarily contributing to the broader community by itself.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department's Procedural Advice Manual) PAM3 'General visa cancellation powers', which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are mandatory legal consequences to a cancellation decision
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
The likely consequences of a decision to cancel the applicant's visa are as follows:
a.He would become an unlawful non-citizen and liable to be detained and removed from Australia,
b.He would be limited in the types of visas he could apply for, and
c.It is possible that two of his children's visas will be cancelled under s.140 of the Act. I also note that another child is an Australian citizen and, if this was the consequence of the government's acceptance of the visa-holder's protection claim which was subsequently found to have been fabricated, then it is possible that the appropriateness of this citizenship may also be re-examined.
I consider that the likely or possible consequences of the visa cancellation outlined above are reasonable, given these administrative sanctions are the consequence of the visa-holder obtaining a protection visa by providing false information. I therefore give little weight to the consequences of the visa cancellation decision. I also note that the individual can avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia.
The Tribunal has not accepted that the visa-holder has been jailed in Iran, or that he and his family have been denied access to a range of services or employment opportunities because they are stateless or that there is a real chance that he or the family would face serious harm on return to Iraq.
An International Treaties Obligation Assessment (ITOA) has not yet been completed, however based on the information available to me I do not accept that there is a real chance that the visa-holder would be persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion. I have also had regard to the Conventions on the Rights of the Child and do not accept that the visa cancellation and subsequent return of either the visa-holder or his children to Iran would breach any of Australia's non-refoulement obligations
The children (including the Australian citizen) are all able to access Iranian passports and could return to Iran as the one family unit. Whilst I note that the children have attended Australian primary schools they are still young and would be able to integrate back into Iranian society. They have extended family members still in Iran.
I have already noted that the visa-holder is not an undocumented Faili Kurd, but I do accept that they are ethnically Kurdish. I have had to regard to the DFAT Country Information Report—Iran and the DFAT Thematic Report — Faili Kurds in Iraq and Iran. I note that the reports state that Iranian citizen Faili Kurds can access services and employment on the same basis as Iranian citizens and that DFAT is not aware of specific instances where Iranian authorities have singled out Faili Kurds for mistreatment.
I accept that the Iranian economy is in difficult circumstances due to the US sanctions regime on the country, although I am satisfied that the visa-holder would be able to subsist given he would have the support of extended family in Iran and he would be able to work in an area commensurate with his training, education and experience.
While I accept that their removal to Iran would represent a major disruption to the family, the reality is that the visa-holder and his family would never have been granted a protection visa in the first place if he had not lied about his identity, citizenship and alleged harm in Iran. Given the gravity of his actions and having regard to the prescribed circumstances in r 2.41, additional policy considerations and all of the visa-holder's circumstances, I have decided that the visa-holder's visa should be cancelled.
CONCLUDING PARAGRAPHS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant's Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Rodger Shanahan
Member
ATTACHMENT — Migration Act 1958 (extracts)
5      Interpretation
(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.
97    Interpretation
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 50).
98    Completion 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.
99    Information 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(6) 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.
100 Incorrect 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.
101 Visa 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.
107    Notice of incorrect applications
(I)     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 (IA), 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 (IA), 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
(Hi) otherwise—at the end of that period; and
(d)      setting out the effect of sections 108, 109, III 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
(H)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 (IA)(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.
108 Decision 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.
109   Cancellation 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 3376

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies