1913358 (Refugee)

[2022] AATA 2507

1913358 (Refugee) [2022] AATA 2507 (18 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER:  1913358

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:18 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 June 2022 at 9:56am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in visa applications – race – Faili Kurd – nationality – stateless – Iranian citizenship – education – employment – non-refoulement obligations – mental health issues – best interests of the children – indefinite detention – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 195-198
Migration Regulations 1994, Schedule 2 cl 309.211; r 2.41

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s claim during the application process to be stateless when he was not was of a significant nature and that when the delegate considered the discretionary elements the reasons for cancellation outweighed the reasons not to cancel 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.

3. The applicant appeared before the Tribunal on 31 May 2022 in a joint hearing with his wife and children whose application was being considered concurrently by the same member. The Tribunal also received oral evidence from [name], who is the applicant's daughter-in-law. The Tribunal hearing was conducted with the assistance of interpreters in the Kurdish, Persian and English languages.

4. At the outset I explained that evidence given in one case would be taken to have been given in the other. This was accepted by the applicant.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant’s mental health was discussed at the hearing and in post hearing submissions. It was noted that the applicant has not had access to Medicare and as a result has not had the ability to be assessed and potentially to have a diagnosis of the mental health challenges he faces. In a post-hearing submission, the applicant’s wife explained that his mental health has deteriorated over the past three years since the cancellation and that he is suffering from memory loss or attention deficit disorder. I note that while the applicant’s wife is not qualified to provide a diagnosis, she is well placed to make an observation about the symptoms which for the purposes of thus review are relevant in how it is conducted and what weight I place in any matters that may be influenced by memory loss or lack of attention.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be substituted with a decision not to the cancel the applicant’s visas.

8. 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.

9. 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.

10. 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 and as such proceed to consider whether there was non-compliance in the manner particularised in the s 107 notice.

    WAS THERE NON-COMPLIANCE AS DESCRIBED IN THE S 107 NOTICE?

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b):

    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.

12. The s 107 notice, being the notice of intention to consider cancellation (NOICC), particularised the incorrect information in the following respects:

    You have submitted four official documents issued by the Iranian authorities which identify you as an Iranian national holding ID card [number]. You have also submitted one document issued by the Iranian authorities which identifies your father [named] as an Iranian national holding Iranian ID card [number]. On the basis of this information, it appears your claims of being a stateless Faili Kurd at the time of your Protection visa application are incorrect.

    I consider your answer at question 9 of Form 866 incorrect because you submitted your children's Iranian identity cards in association with the Partner visa application in which you sponsored your wife and children. The identity cards contained their Iranian ID card numbers and listed you as the father and included your own Iranian ID card number. I consider your children acquired Iranian citizenship at birth because you were also an Iranian citizen and were not stateless at the time of your Protection visa application.

    I consider your answer at question 11 of Form 866 incorrect because you submitted a copy of your Iranian marriage certificate in association with the Partner visa application in which you sponsored your wife and children. The marriage certificate contained the details of your father as a witness to the marriage and included his Iranian ID card number. I consider your father was an Iranian citizen and not stateless at the time of your protection visa application.

    I consider your answer at question 8 of Form 866C incorrect because the Iranian identity card you submitted for your wife in association with her Partner visa application in which you were the sponsor, indicated that you were born in Eilam, Iran. I consider you were not born in Baghdad, Iraq as claimed at the time of your Protection visa application.

    I consider your answer at question 19 of Form 866C incorrect because the marriage certificate submitted in association with your wife and children's Partner visa application, included the details of your father as a witness to the marriage, and included his Iranian ID card number. As Iranian citizenship is passed through the paternal line, this information would suggest that you acquired Iranian citizenship by birth and held Iranian citizenship at the time of your Protection visa application.

    I consider your answer at question 20 of Form 866C incorrect because the marriage certificate submitted in association with your wife and children's Partner visa application, included the details of your father as a witness to the marriage, and included his Iranian ID card number. As Iranian citizenship is passed through the paternal line, this information would suggest that you acquired Iranian citizenship by birth and held Iranian citizenship at the time of your Protection visa application.

    I consider your answer at question 21 of Form 866C incorrect because you submitted a number of documents issued by the Iranian authorities which contain your Iranian ID card number in association with the Partner application you lodged to sponsor your wife and children. I consider you were an Iranian national at the time of your protection visa application.

    I consider your answer at question 22 of Form 866C incorrect because you submitted a number of documents issued by the Iranian authorities which contain your Iranian ID card number in association with the Partner application you lodged to sponsor your wife and children. I consider you had the right to enter or reside in, whether temporarily or permanently, Iran, your country of nationality, at the time of your Protection visa application.

    I consider your answer at question 23 of Form 866C incorrect because you submitted a number of documents issued by the Iranian authorities which contain your Iranian ID card number, and your father's Iranian ID card number in association with the Partner application you lodged to sponsor your wife and children. As Iranian citizenship is passed through the paternal line, I consider you were not stateless at birth because your father was an Iranian citizen.

    I consider your answer at question 32 of Form 866C incorrect because you submitted a number of documents issued by the Iranian authorities which contain your Iranian ID card number in association with the Partner application you lodged to sponsor your wife and children. I consider you were not living illegally in Iran at the time of your Protection visa application.

13. In response to the NOICC the applicant admitted in writing to the Department that he had provided incorrect information. He admitted to being a citizen of Iran and that his father is a citizen. He admitted to never having lived in Iraq. He nevertheless claimed to be a Faili Kurd.

14. For the reason the applicant had admitted to providing incorrect information, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    SHOULD THE VISA BE CANCELLED?

15. 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).

16. 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 reg 2.41 of the Regulations.

    Regulation 2.41 mandatory considerations

    The correct information

17. The correct information is that the applicant is a citizen of Iran and that he is a Faili Kurd.

    The content of the genuine document (if any)

18. The applicant had not provided any documents. He had instead provided incorrect information. As such this factor is not relevant.

    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

19. The applicant made the argument through the legal representative that Faili Kurds suffered from discrimination and that the delegate’s decision was made based upon the same form of discrimination and that it only differed by the degree of discrimination. In other words, that the decision to grant the visa was based only partly on the applicant’s incorrect information.

20. I do not agree with this reasoning. While it is true that the nature of the basis upon which the decision to grant the visa was based upon the same issue of discrimination the incorrect information was wholly the reason for the grant of the visa. It was not that there were multiple channels of discrimination which alternatively or cumulatively amounted to the triggering of Australia’s protection obligations, but rather there was only one, the applicants claimed statelessness. Without the claim of statelessness, the applicant would not have been granted a visa. As such the incorrect information was wholly the reason for the grant of the visa. For this reason, I place considerable weight in favour of cancelling the applicant’s visa.

    The circumstances in which the non-compliance occurred

21. In his statutory declaration of 2019, the applicant wrote in regard to the specific circumstances in which the non-compliance occurred:

    On my journey to Australia, shortly after arriving in Indonesia I met the people smugglers. The people smugglers were Iranian. I believe the main one was a resident of [Country 1]. They sat us down and started talking about the journey conditions as well as what we should tell the Australian authorities once we reach Australia. They asked about my claims. I told them that I was a Faili Kurd but as soon as I told them about my involvement in the green movement protests, they told me that my claims will not be accepted. They said those claims are not strong enough and that I could not prove them. They said that I should keep it simple and just claim that I was a stateless Faili Kurd. They said a claim of being a stateless Feili Kurd was guaranteed to be accepted in Australia. I did not feel easy about this, but because I did not know anything about the migration process, I took their word for it. They made it seem like it was a small lie and quite normal. They basically dictated what I should be saying to the Australian authorities. At the same time, they were trying to cover their own tracks as well as getting more business from us by pretending that they were helping us with every step of our asylum-seeking process.

    In addition to this, there were a few people on the same boat who were thugs and were quite intimidating. They were going to make the same claims. They essentially made threats against everyone who said anything outside of these claims. They did not want to jeopardise their own claims and insisted that everyone should claim that they were stateless Fa iii Kurds. They even took our passports away and threw them in the ocean. I was quite scared of these people and did not want to create any problems.

    At the detention center in Australia everyone was telling me that I should just stick to the stateless Faili Kurd story and not complicate things for myself. There was a lot of talk about people being deported to their home countries or offshore camps. I was horrified by the thought of being returned to Iran or ending up in an offshore detention center.

    One of the most important reasons for my leaving Iran, apart from the oppression I was experiencing was that I wanted to take my family out of that situation. I wanted to reunite with them as soon as possible. My wife was going through a lot of difficulty in Iran on her own, and I had [young children] which I worried about and missed dearly. [One child] was only [age] years old at the time.

    Before my interview I met my interpreter who was also a Fa iii Kurd and we started talking about my situation. I told him that as soon as I could, I wanted to apply to reunite with my family. When I told him that I had identity documents, he quite strongly told me not to mention this. He told me that if I mention this then I will not be a stateless Fa iii Kurd and my claims will not be accepted. He told me to stick to the same story and I will not have any problems. I did not know any better and I thought since he was experienced in this area I should listen to him. It was a very confusing time for me.

22. At the hearing the applicant acknowledged that he had provided incorrect information. He went on to explain the circumstances from which he had fled, and that this desperation led to a willingness to believe others who gave him advice.

23. The applicant explained that it remained the case that his father and his tribe more broadly were from Iraq and were forcibly displaced. He claims that his father had told him how they had once had a food business in Iraq and after his tribe received threats from proxies of Saddam Hussein, he fled across the border. He claims that his family have had a long history with Iraq and had integrated into the political and business community there. He reinforced that he is a Faili Kurd.

24. The applicant claimed that the mistreatment he encountered in Iran extended to when he was young claiming that he had been treated as a second-class citizen. He claimed that he had different levels of access to services, he said that he was only able to access 2-3 years of an education and was prevented from continuing his studies because he was a Faili Kurd. I put to the applicant that country information contradicted his claims.[1] The applicant disagreed but then qualified his response saying that he wasn’t able to continue for financial reasons and in addition in his area there weren’t the services comparable to what was available in the city.

    [1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, April 2020 at [3.26]

25. I asked in what other way he had felt discriminated against. He said that he was not allowed to read or write in his own language. He said that he would not be allowed to even own a book in Kurdish. In his statutory declaration of 2019, he claimed that he was harassed at school because of his ethnicity. As he became older, he said that he was harassed by the Basij and Sepah. He said that in one instance they broke his arm during an argument, a description of which he had provided at the hearing and aligned with the one in the above statutory declaration extract. In another instance he claimed that he was arrested and held for 48 hours for having hired a foreign movie from an underground supplier.

26. The applicant also said that he had difficulty finding work as Faili Kurds were treated differently to other citizens. He claimed that they were excluded from government jobs and often had to settle for low paying jobs. He also claimed to have had trouble obtaining a passport because of his ethnicity.

27. The applicant said that as a Faili Kurd the authorities put you under a lot of pressure, they even accuse you of being a spy for Israel. The applicant claimed that he had participated in many demonstrations across the years 1387 as well as 1388. The applicant said that he had to leave his family in 1388 (2009 Gregorian calendar) because some of his friends were being arrested as at the time he and his friends had been involved in a demonstration and had fled from the police. He wrote,

    Anyone that questioned the authorities or protested the oppression and the corruption of the authorities was brutally attacked and suppressed. It was after this that I knew the risks for me to live in Iran were far greater than I thought. I felt quite hopeless. I did not want to continue to be exposed to such harsh treatment and I certainly did not wish my family, especially my children to grow up in that environment and get such treatment. That is when I decided to leave Iran shortly after.

28. He said that he then went on to travel to Indonesia and found people smugglers to take him to Australia. He told them that he was a Faili Kurd, but he said that they told him if you say that the Australian government will return you. Because he was scared to return to Iran, he felt he had no choice.

29. I asked him why he hadn’t provided this narrative to the Australian authorities as he had to me through submissions and at the hearing, to which he responded that he didn’t because the people smugglers were very dangerous people and he felt that they had indoctrinated him and others into believing that they would have to say the story given to them otherwise the Australian government would return him back to Iran.

1. In his statutory declaration of 2022, he said that the people smugglers pretended to know everything about the Australian visa application process and that he felt that he had to trust them. He claims that he told them his true claims but that they instead told him to just say that he is a stateless Faili Kurd. He added that there were some people who were of ‘questionable character’ and were intimidating everyone on the boat by telling them to stick to their stories and ‘not jeopardise their chances of getting a visa.’

2. At the time of his interview the applicant said that in Iran the government was conducting brutal crackdowns on protesters and he was hearing about the abuse committed by the authorities. He wrote that he did not want to go back to that environment as he feared being exposed to such harm.

3. He said that he wasn’t in a good mental state at the time and that he didn’t have any friends with whom he could seek guidance from. He claimed that he was experiencing a lot of anxiety and ‘great levels of depression’ and that he now regrets it. He acknowledges that he made a mistake.

4. The applicant also described his perilous financial situation as being that he had spent his whole life savings for the trip leaving behind his wife and young children with his parents and without much money themselves. He wrote, ‘I had to ensure that I got a protection visa.’

5. I acknowledge that the applicant carried fears of harm and past memories of discrimination when he arrived to Australia. I accept that these last memories infected his thinking and the choice he made ti accept the people smuggler’s narrative. I accept that he was not in a good mental state due to the long journey by sea to Australia. I also accept that the people smugglers acted in ways that intimidated him and he felt pressured to adopt a story that was aligned with the ‘advice’ they were giving. The applicant’s explanation of the interpreter also advising him not to say that he was a citizen is plausible. As is the applicant’s claim of wanting to do whatever he could to take his family out of the situation in Iran. All of this forms a part of the circumstances in which the non-compliance occurred.

6. The non-compliance ultimately occurred, though, when the applicant chose to follow the instructions of the people smugglers to provide incorrect information. While the applicant’s background circumstances created a desperation to succeed in his quest to obtain a better life for his family and to create a pathway out of his situation in Iran, he ultimately chose to follow the instructions of the people smugglers and interpreter because he was convinced that it would secure him a better chance of success. Even taking into consideration the applicant’s desperation, this was a conscious choice made by the applicant to provide incorrect information which would in turn help him secure his goal. For this reason, I place some weight in favour of cancelling the applicant’s visa.

   The present circumstances of the visa holder

7. The applicant has worked in Australia in [occupation 1] under his own ABN when he suffered a serious [injury] requiring surgery. The injury involved [details deleted] that subsequently left him unable to [work]. He believes that it was not treated properly. He said at the hearing that he may be able to find other work despite [this] injury. In his statutory declaration of 2022, he noted that he is not educated enough to be able to find work other than what requires physical labour.

8. While in Iran the applicant had undertaken farming work. He said that the agriculture there is labour intensive. He said that he would not be able to return to that work now as he doesn’t have the energy and because of the injury. He said that he doesn’t think that there is a job that he could do, noting that there are Iranians with masters degrees that are unemployed. I accept that the applicant’s [injury] would cause him challenges finding labour intensive employment in Iran.  

9. Regarding his mental state the applicant said that in the last 2-3 years he has been under a lot of pressure, he feels like he lost his memory. He described his life as going off the rails. He said that he doesn’t have a Medicare card which makes it difficult to access health support. He said that his eyesight is deteriorating and that he is unable to get support from a psychologist as he can’t afford to pay for it.

10. He said that he wouldn’t be able to cope if his family were to remain in Australia and his visa was to be cancelled. He said that his family life would not exist anymore. He said that he is not in touch with other family members back in Iran, only his mother is living in the same place as his hometown.

11. As the applicant does not have the resources nor access to Medicare, he claimed to be unable to access a psychologist to undertake an assessment of his mental health. As noted above, I nevertheless accept the applicant’s wife’s evidence of his symptoms.

12. The applicant’s wife has various medical conditions including [two specified]. As a result, it is claimed that she has been unable to work for the past couple of years. His wife requires medication which he claims they would not be able to access on the minimal wages that he would be earning in Iran due to his injury. He is concerned that as a result his wife’s mental health will deteriorate.

13. The applicant claims that his family don’t consider themselves Muslims anymore. He claimed that his children live ‘a free life and are liberal in their views.’ He said that his wife does not practice Islam or any of its teachings and that neither she nor his daughter wear the hijab. The applicant claimed that in Iran both his family and his wife’s family are strict adherents to Islam which would create problems for them as they may report the family to the Iranian authorities. I find that these views would not only impact the life and daughter but the applicant also, for the reason that as the head of the household he would face social opprobrium and possibly harm from the security forces.

14. The applicant noted that his daughter won’t be able to access higher education as a result of being away from Iran for 9 years during which time she has not had any practice reading or writing in Persian. This situation would make her dependent upon the applicant were their visas cancelled. In turn this would add an additional layer of responsibility to the applicant who is injured and at least in Australia has been deemed unfit to work in labour intensive jobs.

15. I accept that the applicant’s health circumstances along with his wife’s are such that were they to return to Iran the support available would be far less leading to some degree of hardship if not harm. I also accept that the religious views of the applicant’s family members will lead the applicant to face some degree of hardship if not harm. That he would have to support his daughter for the reason of her inability to find work or education is accepted. I also accept that this would lead to a compounding of problems as he would face challenges in finding work. Overall, I place substantial weight against the cancellation of the applicant’s visa for the reasons of his present circumstances.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

16. Subdivision C of Division 3 of Part 2 of the Act includes obligations to not provide incorrect information (s 101), to complete passenger cards correctly (s 102), that no bogus documents are to be provided (s 103), that changes in circumstances are to be notified (s 104) and any particulars of incorrect answers to be given to the Department (s 105).

17. As the applicant explained at the hearing and by way of submissions, he knew that the answers he had provided were incorrect but did not report the incorrect information contrary to s 105 which requires that non-citizens who become aware of an incorrect answer must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’

18. Instead, he wrote, ‘I feared advising the Department of the correct information about my citizenship. People were telling me that my visa could get cancelled and I did not wish to risk that especially for the sake of my family.’ Separately he wrote that he was worried about his family’s safety and wellbeing after having arrived to Australia.

19. The applicant’s subsequent behaviour, that is his behaviour after his non-compliance, did not comply with his obligations under s 105 and as such I place some weight in favour of cancellation.

    Any other instances of non-compliance by the visa holder known to the Minister

20. There are no other known instances of non-compliance before the Tribunal but as this is a bare minimum expectation of all visa holders, I place very limited weight against cancellation.

    The time that has elapsed since the non-compliance

21. The applicant has been a part of the Australian community for 12 years and his wife and children are established in Australia. He said that through this period he sought and found work in [business 1s] in [named locations]. While he was working, he engaged in local activities and went out with Australian friends which I find strengthens his claims of having embraced his new community and as such increases the impact that 12 years of time spent away from the Iranian culture would have on the applicant.

22. I find that 12 years is a considerable period of time during which he has adapted to the Australian culture but noting that he has lived [number] years in Iran before coming to Australia I only place limited weight against cancellation based upon this factor.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

23. There are no breaches of the law known to the Tribunal but as this is a bare minimum expectation of all visa holders, I place very limited weight against cancellation.

    Any contribution made by the visa holder to the community

24. The applicant described how he has sought not to be dependent upon the government and instead found work including in [business 1s] which he described as hard labour. As a part of this work the applicant described how he facilitated the employment of many Iranian and Kurdish migrants in the [business 1] he was working in through his outreach to the community.

25. The applicant had also established his own business in [occupation 1].

26. The applicant had submitted to the Department a letter from the [Community Organisation 1] Inc that stated that the applicant had contributed ‘in many meaningful ways to the community’ including participating in activities that aim to condemn the abuse of human rights.

27. The applicant’s efforts to work in a difficult industry simply to earn a living and not be dependent upon the government is admirable. That he furthermore helped other migrants find work is a manner through which he has contributed to the community. I accept that he has established his own business and been a regular and honest taxpayer.

28. I acknowledge the letter from the [Community Organisation 1] and give it some weight as an example of the contributions he makes from a non-economic perspective. The applicant had also claimed in his statutory declaration that he donates blood and has in the past donated to charities. 

29. Other than through his work and unquantified regularity of blood donation and financial support to charities as well as engagement with the [community organisation] the applicant has not provided any other evidence of contributing to the community. Nevertheless, I note that the applicant has moved around a lot and this has limited his ability to engage in any community in a sustained manner and furthermore, following the arrival of his family he has had familial obligations. I note that his English is limited which would be a further limitation on his ability, despite a willingness, to engage more broadly. On balance I place limited weight against the cancellation of the visa for reasons of his contributions to the community.

    Policy considerations

30. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

31. The applicant had applied and was granted subclass 309/100 visas for his wife and children based upon his sponsorship of them through the partner visa program. A requirement for a partner visa (cl 309.211) is that the spouse or de facto partner is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The applicant at the time was an Australian permanent resident.

32. Section 140(2) of the Act states that if:

    (a) a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

    (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person’s visa.

33. As the applicant’s wife and [children] hold their visas ‘only because’ of the applicant whose visa was cancelled then their visas may be cancelled. Noting that the cancellation of the wife and children’s visas is by way of a separate process it is nevertheless influenced by the outcome of this decision. Was the applicant’s visa cancellation to be set aside then the family’s visas would not be cancelled. As such I will take into consideration the impact of cancellation both on him and his family.

    Are there children whose interests would be affected by cancellation, or consequential cancellation

34. A brief mention was made in the legal representative’s submission that the applicant’s child was a minor at the time of the visa cancellation and as such the best interests of the child need to be taken into consideration.

35. At the hearing I noted that this is not a time of visa cancellation criteria and instead it is only a relevant consideration that is to be taken into account if at the time of the decision the applicant’s child remains a minor. This is not the case. Both of the applicant’s children are over 18 years as of the time of this decision and as such I do not consider the interests of a child through the lens of Australia’s international obligations.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations, is liable to detention and removal and whether there are provisions which prevent the person from making a valid application for a visa

36. If the applicant’s visa is cancelled and he exhausts any rights of judicial review and his bridging visa ceases, he will become an unlawful non-citizen. Unless the applicant can regularise his position he faces the prospect of an indeterminate period in detention for the reasons explained below.

37. There is no obvious substantive visa available for the applicant to apply for based upon his circumstances.

38. Relevantly, s 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application.

39. The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.

40. As such the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal.

41. Removal though carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the new ss 197C(3) and 197D.

42. In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken.

43. In the specific circumstances of this case the applicant would not agree to voluntarily return to Iran. According to the country information from the Department of Foreign Affairs and Trade, the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018.[2] This would apply to the applicant because he arrived in Australia in 2009. There is no information before me to suggest the applicant may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country.[3]

    [2] DFAT Country Report: Iran, 14 April 2020 [5.27]. Australia and Iran entered into a Memorandum of Understanding to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia

    [3] Section 36(3) of the Act provides that Australia does not have protection obligations if a non‑citizen can avail themselves of protection in another country

44. As such, unless there is a change in Iranian policy or the applicant changes his mind and decides to return to Iran voluntarily, or the Minister grants him a visa, it is likely the applicant would remain in detention for an extended period.

45. This will be the case irrespective of the effect of the amendments to the removal provisions which add a new process that works to prevent people from being refouled. Thus is accomplished by way of an additional review to determine if their fears of persecution continue to require Australia’s protection. But in the applicant’s case, even were the Minister to be satisfied that the applicant is no longer a person in respect of whom any protection finding would be made (see s 197D(2)), country information in this instance suggests that Iran will still refuse to accept an involuntary returnee.

46. For the reason that there is no indication that the Minister will grant visas to refugees in detention who have had their visas cancelled and the applicant has no clear pathway to regularising his stay, but he cannot be forcibly returned, the applicant faces a lengthy period in detention. For this reason, I place substantial weight against cancelling the applicant’s visa.

47. Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[4]

    [4] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

48. Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration includes ‘where a person knowingly fails to provide information, or provides misleading information, about their identity (such as age, nationality, citizenship or ethnicity)’. The applicant’s circumstances clearly fall within this.

1. On the other hand, among the public interest factors listed as being viewed favourably by the Minister for the grant of a residence determination and which are also relevant to the applicant are family composition, health and well-being, and relevantly:

   any other significant issues concerning the person, including, but not limited to, unique family circumstances or health issues …

2. The grant of a favourable residency determination is therefore a possibility in the circumstances of this case, but the prospects of such an application are theoretical.

3. The legal representative in his post hearing submission noted his concerns with s197C(3)(c)(i) which states:

   Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

   …

   (c) none of the following apply:

   (i) the decision in which the protection finding was made has been quashed or set aside;

4. Specifically the representative was concerned that this sub-section opened the door for the  applicant to be removed as he had his protection finding set aside.

5. The purpose of this sub-section has not been considered judicially as yet.

6. In reviewing the legislative amendments that introduced the new ss 197C(3) and 197D as a whole I find that s197C(3)(c)(i) can be read as having no effect based upon a legislative redundancy as it is the work of s197C(3)(c)(ii) to facilitate the removal of an unlawful non-citizen if the protection finding under the new s197D(2) is made. In an alternative interpretation, the clause would have a purpose but only in a convoluted set of circumstances. For example, if the Tribunal were to make a protection finding on a visa application refused by the Department and the Department appealed that decision and the Court quashed the Tribunal’s decision and subsequently another Tribunal affirmed the delegate’s decision by concluding that there would not be a protection finding, then the applicant in such circumstances would be unable to rely upon the original Tribunal decision of there being a protection finding and avoid removal. Either interpretation of this new provision carries no weight at this stage of the review process and as such I do not consider it further.

7. I note that a lengthy stay in detention will lead to a breach of Australia’s obligations to family unity principles present in binding and non-binding treaties such as the Universal Declaration of Human Rights, 1948, article 16(3) and the International Covenant on Civil and Political Rights, 1966, article 23(1).

8. At the hearing the applicant said that he wouldn’t be able to cope if his family were to remain in Australia and his visa was to be cancelled. He said that his family life would not exist anymore. Conversely, the applicant expressed remorse and concern over the effect of his visa cancellation upon his family members. The applicant’s mother expressed a need for her daughter to have a male figure in the household.

9. The family members also commented on their situation were they to be separated from their father and spouse. The applicant’s wife said that she would be unable to receive the emotional and physical support provided to her by her husband of 25 years. The daughter said that she would not have her father present which would be important to her and the son, despite having moved out of the family home and lives with his wife, would be impacted by not having access to his father. I note that both of the applicant’s children are adults now and are not as dependent upon their father as they once would have been. Nevertheless, the father’s absence will diminish the family’s ability to have an income to provide for them, it will place greater pressure on the wife who has a disability to work and it was claimed that it will lead to a sense of lesser physical security without a man in the home. I accept that the principle of family unity in this instance has some merit and that a division of the family will place an additional emotional, financial and sense of insecurity burden upon the family members.

10. As the law stands the applicant is liable to be held in immigration detention for an indefinite period with the pathway of exiting detention dependent upon the applicant’s detention being re-designated to what has become known colloquially as community detention or the Iranian government changes its long-standing policy of accepting forcibly returned citizens. Based on the material available both options appear unlikely as the Iranian government has held firm on their position and there is no evidence that the Australian government has further lobbied for any change. Similarly, the guidance for detainees to be considered as suitable for community detention explicitly excludes the applicant.

11. While it could be read that as the policy specifically excludes the applicant’s profile then it is policy to have the applicant remain in detention the issue is that the policy does not consider the unique circumstance of Iranian detainees whose government will not receive them. In other words, I do not believe that the policy had envisioned indefinite detention being a consequence.

12. For the reason of the applicant’s prospect of indefinite detention and subsequent long-term separation from his family which breaches Australia’s international treaty obligations towards maintaining family unit I place considerable weight against cancellation.

    Any other relevant matters

13. While I have considered the consequences to the applicant of the provision of incorrect information and subsequent cancellation, I now turn my mind to consider the repercussions to the wider community. The applicant explained how he has received advice from members of the community that he should not proactively report the incorrect information to the Australian government as in such a case his visa would be cancelled. This suggests a clear understanding among his community that the provision of incorrect information carries consequences.

14. Was I to set aside the decision to cancel the applicant’s visa it would send the message to community members and those who read this published decision that accessing a visa on the back of a lie can be swept aside by expressions of remorse, integration into the community and a hard life in their own country. But was it not for the risk of indefinite detention that he faces arising from the coming together of recent changes to the legislation preventing removal of a visa holder who has a protection finding and the Iranian government’s refusal to accept forcible returnees, the applicant would have found his visa’s cancellation to have been affirmed by this Tribunal.

15. Noting that this situation extends only to the Iranian caseload and only for those who arrived before March 2018, the ramifications to the wider migration framework are limited from the perspective of this member. If there are wider repercussions with far reaching consequences, then it is for the Minister to amend the policy guidance on such matters. For this reason, I place only some and not substantial weight on cancelling the applicant’s visa for reasons arising from the impact setting aside the visa cancellation would have on the wider migration framework.

    Other relevant matters: The reasons for the family members’ desire to stay in Australia

16. The applicant’s family members travelled to Australia to join the husband who at the time had acquired a permanent visa. While the purpose of the travel at the time was to re-unite with the husband the applicant’s family members each now have their own reasons to stay in Australia. These reasons can weigh against the cancellation of the visa and as such I have turned my mind to them.

17. The wife, [Ms A] is [age] years old having arrived in Australia when she was [age] years old. She provided a statutory declaration to the Tribunal dated 22 May 2022 in which she described a number of physical and mental health issues that she faces. At the hearing [Ms A] also described these ailments. These include being affected [specified conditions].  She stated that as a result she has [a specified adjustment]. She has been placed on a wait list for [surgery]. In addition, she has been diagnosed with Major Depressive Disorder with Panic Attacks by a clinical psychiatrist. The wife provided medical documents supporting her claims and as such I accept them.

18. The psychiatrist who diagnosed the wife in a letter dated 10 November 2021 prescribed her with three different medications and recommended her to see a clinical psychologist for ongoing psychotherapy and counselling.

19. I note that of [Ms A’s] medical issues the major problem has been with her since childhood, namely the [long term condition], and includes an extended period of her life when she lived and worked in Iran. That she has [one specified condition] compounds her inability to function but is not an ailment that she has presented evidence as being treated in Australia in such a way that it could not be treated in Iran. Alternatively, she has provided evidence to the Tribunal that she is on a waitlist to have [surgery]. The wife has said that she would be unable to afford the medical treatment she requires in Iran.

20. The daughter, [named], arrived in Australia together with her brother and mother when she was [age] years old. She is now [age] years old. This represents a large portion of her formative years. The daughter learned English quickly and as a result was able to integrate into the community including attending school and gaining [mark] in her ATAR. She was subsequently accepted into [several] universities, including [one] which offered her a 20% scholarship.

21. The daughter wants to stay in Australia because she does not want to return to Iran for the reason that the values that are practiced in that country are all based on Islamic rules and teaching. She expressed concern that she does not consider herself a Muslim and that she would be forced to practice a faith that she does not believe. She recalls being forced to pray at school during which time she endeavoured to go and hide in the bathrooms having already gravitated away from Islam at a young age and before she came to Australia.

22. [The named daughter] claimed that her time in Australia has reinforced her views against the form of Islam taught in Iran. She claims that this thinking is different to that of her family in Iran and fears that they will not accept her for who she is. She claims that the authorities similarly will not accept her. She has adopted Western norms such as not wearing the hijab and being against inequalities that women experience in Iran.

100.   She expressed a concern that she would be unable to study or work if she were to be forced to return to Iran. She said that she enjoys music, dancing and movies which she fears she would not be able to engage in were she to live in Iran.

101.   She said that she can speak Farsi but can only ‘barely read’ and that she cannot write in Farsi. Considering that the daughter left when she was [age] years old and has not had a reason to read or write in Farsi since, I am satisfied that although some remedial efforts could be undertaken to bring her up to speed, the current situation is that her description of her ability is accurate.

102.   As a result of her inability to read or write Farsi to a level that would be expected of her, she fears that she would be unable to attend university and would have difficulties functioning in Iran.

103.   The wife noted that in the area where they are from in Iran, ‘women don’t even see the man before they get married off.’ The decision, according to the mother, is made for them. Her mother fears how her daughter’s life would evolve were she to return to Iran.

104.   The son, [named], arrived in Australia when he was [age] years old. He claims that he started to study English immediately and attend high school but then chose to go to [a college] after finishing grade 10. He worked in the field of [occupation 2] for approximately four years before starting [another job] and then in the [specified] industries. In addition, the son has his own side business doing [occupation 1].

105.   The son recently registered a company name and has plans to buy his own [vehicle] and machinery.

106.   The son is married to an Australian citizen of Iranian heritage who is currently studying [a course] and works on a part-time basis. They purchased a home together but due to his visa status the paperwork was in her name only but their ability to maintain payments on the mortgage is dependent upon his income. They recently bought a car which similarly has repayment obligations. Without [the son] having an ability to work in Australia, his Australian wife would be unable to sustain the mortgage payments or car payments.

107.   The son and his wife have been living together in the house for over a year.

108.   The son said that he has adapted to his new life in Australia.

109.   The son wrote that he and his wife have plans to have children, but they don’t want to raise their children in Iran where they would ‘be deprived of their basic freedoms and many opportunities that they could enjoy in Australia.’

110.   The son claims that his wife would be unable to visit him if he were to be removed to Iran as she has her ‘whole life, career and extended family here.’ He said that he would be unable to provide for her in a small city in Iran and that he could not expect her to sacrifice all that she has in Australia for that life.

111.   The son’s wife also provided a written submission and appeared as a witness at the hearing. Relevant to the review she stated that she had come to Australia as a refugee. This is relevant as it limits her ability to visit the son was he to return to Iran.

112.   Due to the age of the son, was he to return to Iran he would be required to participate in the compulsory two-year military service which all males have to undertake. The applicant wrote:

The Iranian military is controlled by strict Islamic principles and trainings. I have not been a practicing Muslim since I arrived in Australia and I do not have those beliefs. I will be monitored very closely in the army and I know because of my views and lack of belief in what the Iranian army stands for, I will be at risk of harm.

113.   I note that country information supports the son’s concerns: ‘The constitution states the military must be Islamic, must be committed to Islamic ideals, and must recruit individuals who are committed to the objectives of the Islamic revolution.’[5]

[5] UK Home Office, ‘Country Policy and Information Note: Iran: Military Service’, April 2020

114.   In addition, the conditions can be harsh:

Conditions for most conscripts are reported to be poor with low pay, insufficient food, distressing or stressful working environments and long periods without days off. There have been reports of harassment and physical and psychological abuse of conscripts by commanding officers as well as other conscripts which has led to self-harm and suicide. Religious minorities may experience additional harassment.[6]

[6] ibid

115.   Noting the above reasons for the applicant’s family staying in Australia and that setting aside the visa applicant’s cancellation would lead to there not being grounds for cancelling the family members’ visas I place substantial weight against cancellation.

Other relevant matters: The degree of hardship that may be caused to the visa holder and any family members

116.   With regards to the hardship that will be encountered by the applicants, [Ms A] wrote in a post hearing submission the following:

Firstly in Iran there is nowhere for us to go to. We do not have a home and due to the high costs of living we will probably have to try and move back to the village. We do not have much family left in 11am. My husband's father passed away in 2018. His elderly mother lives with one of her brothers who is also elderly. My husband is the only child of his family as his only brother passed away at a young age.

My mother is [age] years old and living on her own in a rented single room which is built inside a [specified] complex. My father passed away many years ago. He used to work as [an occupation 3] and my mother is entitled to receive a small pension due to my father's previous work. I am aware that she is struggling and is barely surviving on the benefit she receives. I have a sister in Iran who is married with [children]. They have their own lives and dealing with their own financial struggles. Her husband does not have a stable full-time job.

We don't have any other family in 11am that could provide any kind of support or even accommodation to us. There are no other family or community connections. We have extended family but we have not been in contact with anyone other than our immediate families in Iran during the last 10 years. We cannot move to any other part of Iran as we have never lived anywhere other than 11am.

117.   She added that due to her age she would be unable to find work. She said that she would be unable to afford the medical treatment and medication. These problems would be compounded by the economic situation in Iran in general and the province of Ilam in particular, which according to the applicant is experiencing a drought.

118.   A large number of news reports and academic studies were provided to the Tribunal focusing on the Iranian province of Ilam where the applicants are originally from and how it has the highest rate of suicide in Iran and is referred to as the suicide capital of the world. The articles spoke of the high unemployment rates among youth and women and the correlation between mental health disorders and suicidal ideation.

119.   I accept that returning to Iran would lead to hardship for the entire family. They have little in the way of resources and assets, minimal family support and would lack the ability to quickly move into employment as the parents have injuries and the daughter can hardly read or write in Farsi. Due to the hardship that the family would encounter I place some weight against cancelling the applicant’s visa.

120.   Noting the above reasons for the applicant’s family staying in Australia and that setting aside the visa applicant’s cancellation would lead to there not being grounds for cancelling the family members’ visas I place substantial weight against cancellation.

Other relevant matters: The links that the person may have made to the community, for example, the strength of family, social, business and other ties in Australia

121.   In addition to what has been described above with regards to the reasons for the applicants’ stay in Australia, I note that both of the children have established strong ties to the community. The son has married an Australian citizen and has received a letter of support from her mother. He has registered a business and has aspirations to build it. He has worked in salaried jobs and as a private contractor that has in turn generated work for others. The daughter has spoken of her close ties to her school friends. When she lost the opportunity to continue her studies in a university, she went to work.

122.   These aspects of their lives indicate strong linkages to the community by the second and third named applicants.

123.   Noting the above reasons for the applicant’s family staying in Australia and that setting aside the visa applicant’s cancellation would lead to there not being grounds for cancelling the family members’ visas I place some weight against cancellation.

CONCLUSION

124.   In the process of formulating this decision I considered an alternative combination of outcomes and the impact that it would have on each of the family members, which is to set aside the cancellation of the family members’ visas but affirm the cancellation of the applicant’s visa. In such a scenario the weighting given to each of the matters related to the family would be greatly reduced as their visas could be reinstated without the applicant’s being reinstated. But this would in turn lead to an alternative set of considerations that would need to be weighted including the impact of the separation of the family on each of the applicants and international treaty obligations to maintaining the family unit. I am of the view that this approach would lead to weightings that would align the outcome to the one that has been reached through this process in large part because of the large weight against cancellation of the applicant’s visa that accrues due to the unique situation of the prospect of indefinite detention for Iranian visa holders who have had their visas cancelled.

125.   For the above reasons, I have 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, I have concluded that the visa should not be cancelled.

DECISION

126.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Denis Dragovic
Deputy President

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.