1914537 (Migration)

1914537 (Migration) [2023] AATA 823 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1914537
MEMBER:Christine Cody
DATE:31 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 March 2023 at 3:00pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – stateless/Iran – incorrect answers given in visa application – names, dates of birth and citizenship of applicant, parents and siblings – other siblings and half-siblings not included, including two in Australia – stateless Faili Kurds whose Iranian green cards were not renewed – past discrimination and hardship and fear of future harm – discretion to cancel visa – credibility – incorrect information given deliberately and maintained through UNHCR and department procedures – visa granted at least partly on incorrect information – Faili Kurdish Iranian citizenship by birth, national identity documents and omission of family members conceded two days before hearing, new claims made and further inconsistent information provided – departure on genuine passports – no harm to parents or siblings – members of family unit – consequential cancellation of wife’s and children’s visas with no jurisdiction to review – best interests of children – applicant’s, wife’s and two minor children’s conversion to Christianity in Australia – church and community activities – children’s schooling in English – physical and mental health – westernised returnees and imputed political opinion – delay in finalising decision – country information – security situation and criminalisation of conversion – non-recognised Christians – not necessary to consider non-refoulement – procedural fairness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101(b), 107, 109(1), 140(1), 359A, 376(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 200.211
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
Plaintiff M1/2021 v MHA [2022] HCA 17
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
APPLICATION FOR REVIEW- BACKGROUND

The applicants are a married couple who claimed to have the following names: [Mr A (comprised of Given Name A and Surname A)] (referred to hereafter as the applicant) and his wife, [Ms B] (‘the wife’). They have three children [Child 1], [Child 2], and [Child 3]. On 18 August 2014 the family applied for XB 200 Refugee and Humanitarian visas in [Country 1], relying upon a Form 842 Application for Offshore Humanitarian Visas referring to each family member (signed and declared as true on 30 July 2014 by the applicant and his wife), Form 80 Personal Particulars (signed and declared as true on 30 July 2014 by the applicant and his wife), a number of declarations signed by the applicant and his wife, and an interview held by the Australian government with the applicant in [Country 1] on 20 January 2015. The family had been mandated as refugees by UNHCR in [Country 1], and the Form 842 applications relied upon the UNHCR documentation.
On 27 April 2015 the applicant was granted the visa based on his claims (supported and agreed by his wife) that he and his family were Feyli Kurds without citizenship who faced persecution in Iran. His wife and children were granted their visas as members of his family unit.
On 29 November 2018, the Department sent the applicants a Notice of Intention to Consider Cancellation (NOICC/ s.107 notice). The applicants, represented by their registered migration agent, submitted their response on 15 and 30 January 2019. In their response they essentially maintained that the claims made to the Department in their Form 842 application (and to UNHCR) were true, and that the information the Department had subsequently obtained about them was false.
On 31 May 2019 a delegate of the Minister for Immigration decided to cancel the applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act) visa; the visas of his wife and children were cancelled as consequential cancellations.
Jurisdictional issues – whether the application was made in time having regard to payment issues
The decision to cancel, having been made on 31 May 2019, was notified by email on the same date. The last date for lodgement of an application for review to the Tribunal was Wednesday 12 June 2019[1]. The applicant and his wife applied to the Tribunal for a review of the cancellation decisions. The applicant initially provided the wrong form and paid no fee; the Tribunal wrote to the applicant advising the form and fee required. One of the requirements for a valid, or properly made, application for review of Part 5-reviewable decisions [migration] and in the Migration and Refugee Division (MRD) of the Tribunal is that the application be accompanied by the prescribed fee. Subsequently the applicant provided details of funds; the Tribunal attempted to take the required fee but this was declined by the applicant’s bank. The Tribunal requested submissions and engaged in correspondence with the then new agent as to whether there was jurisdiction. The Tribunal found, after considering all the available evidence, that although there were insufficient funds for payment of the full fee, the Tribunal was placed in a position to access 50% of the prescribed fee within the prescribed period and to process an application for a fee reduction on 12 June 2019. The Tribunal accordingly found that the applicant’s application for a fee reduction should be processed. This was done, and the Tribunal found that the requirements were satisfied concerning lodgement of the application for review, and that it did have jurisdiction to conduct the application for review.
[1] NB the Queen’s Birthday holiday was Monday 10 June 2019
Jurisdictional issues – who can apply for review
For the purposes of the Tribunal’s jurisdiction, the only delegate’s decision that can be the subject of review before the Tribunal is that with respect to 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.
This was raised with the then agent, who subsequently stated in an email dated 10 June 2020:
We understand and accept that the Tribunal does not have jurisdiction to conduct a review of a consequential cancellation. Therefore we will not be providing submissions on behalf of [Child 1], [Child 2], [Child 3] and [Ms B] regarding their s.140(1) cancellation.
The only other applicant who had applied for review was the wife. The Tribunal noted at hearing, and it was not disputed, that it appeared to have no jurisdiction in relation to the wife’s application for review. As no decision was involved in the wife’s visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the cancellation of her visa. For the reasons in this paragraph, the Tribunal finds that there is no jurisdiction to consider the wife’s application for review.
Having found that there is jurisdiction for the Tribunal to consider the applicant’s application for review, the issue to be determined is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
Processing the matter
The applicant’s registered migration agent changed a number of times throughout the process.
The Tribunal notes that:
·     The applicants maintained that the incorrect information was correct when responding to the delegate’s Notice of Intention to Cancel (NOICC) dated 29 November 2018
·     The applicants received the delegate’s decision to cancel the visas on 31 May 2019, and lodged an application for review to the Tribunal in June 2019
·     The applicants were informed by letter from the Tribunal on 13 June 2019 that it was important that they inform the Tribunal immediately if their circumstances change and this is relevant to the review of the decision; and that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. Nothing was received.
·     On 30 September 2020 the Tribunal invited the applicant and his wife to a hearing on 19 November 2020. The hearing invitation noted that documents should be provided to the Tribunal 7 days before the hearing; this was a reiteration of the requirement in the Practice Direction, which also noted that a hearing may be adjourned if documents were not received 7 days before a hearing. No documents were provided before the hearing in accordance with the Practice Direction.
It was only two full days before the scheduled hearing on 19 November 2020 that the Tribunal was informed that the position relating not only to the applicant, but in relation to all of his immediate family members, had changed completely. The applicant agreed that: he and his family were Iranian citizens, they did have nationality/identity documents, and that he had failed to declare some of his family members. Given that his refugee claims had been based on a version of events arising from the lack of citizenship/identity documents, this was a significant change. He also made new substantive claims which could have previously been raised. The Tribunal was provided with 45 pages of submissions, statements and supporting documents, as well as 39 pages of identity/ nationality documents and translations for 5 family members.
The Tribunal had been, up until 2 full days prior to the hearing, preparing for a completely different version of events and hearing, despite the applicant having been put on notice by the Department in November 2018 that his claimed correct information may have been discovered to be incorrect. In the circumstances the Tribunal considered postponing the hearing, however, it noted that the applicant and his wife had made arrangements to attend personally from Canberra, so the Tribunal decided not to postpone the hearing, despite the volume of material provided before the hearing and the failure to comply with the Practice Direction.
The applicant and his wife appeared before the Tribunal on 19 November 2020 to give evidence and present arguments. They were accompanied by their agent and a support person[2]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. At end of first hearing the Tribunal put to the applicant that it had concerns about credibility and although it had not made up its mind, it held concerns that many of the claims were not true.
[2] The applicants had requested that the Tribunal conduct the hearing in person as opposed to via videolink; although it was during the COVID-19 pandemic the Tribunal accepted this request. The applicants had also requested that they be permitted to bring a support person and the Tribunal agreed.
The Tribunal awaited further information after the hearing from the agent (which it received) and it engaged in correspondence with the Department concerning the redacted file that the agent had received, and the non-disclosure certificates placed on the Department’s cancellation file.
The Tribunal notes that the intervention of the COVID-19 pandemic (which prevented the Tribunal listing the matter earlier in 2020 and led to other delays), obtaining certificates from the Department, and other unfortunate delays, meant that this case was not finalised as quickly as the Tribunal hoped. The Tribunal apologised to the applicant and his family members, and does so again.
The Tribunal had written to the applicant through his current agent on 22 December 2022 requesting that any updates in the circumstances of the applicant and his family members be provided to the Tribunal, however, no response was received.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Files before the Tribunal
The Tribunal has two Departmental files before it, namely:
·Global Humanitarian Visa application file [Reference 1]
·Department’s Global Humanitarian Visa Cancellation file [Reference 2].
The Tribunal also has the Tribunal’s file, and has taken into account the evidence received at hearing and submissions received.
The issues for decision
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice and, if so, whether the visa should be cancelled.
Section 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, and 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 set out in Annexure A.
While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power.
Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut[3].
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While Zhao was concerned with notification of proposed cancellation under s.116, these comments are equally applicable to the present circumstances.
On review of a cancellation decision under s.109, the Tribunal is limited to consideration of the facts as they existed at the time of cancellation in deciding whether the ground is made out, because it is restricted to the ground(s) for cancellation particularised in the s.107 notice.
However, in exercising the discretion whether to cancel the visa, if the ground is made out, the Tribunal must consider all relevant facts and circumstances up until the time of its own decision: there is no temporal limitation expressed as to what the Tribunal may consider; and the mandatory considerations for this purpose include circumstances after the Department’s decision.
Validity of the notice – Did the notice comply with the requirements in s.107?
In the present case, no issue was raised as to whether the notice issued by the Minister’s delegate complied with s.107. The Tribunal however must be satisfied of this, which involves a consideration of the relevant requirements in s.107, including whether the Minister reached the relevant state of mind that the applicant had not complied with one or more of the relevant provisions; whether the notice included particulars of the possible non-compliance; and/or whether the other statutory requirements in s.107 were met.
Did the decision-maker reach the necessary state of mind?
The Tribunal has carefully considered the submissions and evidence. It is satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that he has formed the view that there has been non-compliance and there is some basis for his findings. The delegate based the NOICC on concerns about the applicant’s claims as to his identity and nationality, given that this formed a significant part of the applicant’s claims that he faced persecution if returned to Iran. The Tribunal accepts that the information referred to in the NOICC raised valid questions as to whether the applicant had provided incorrect information during the process in relation to which he obtained a refugee (subclass 200) visa. The Tribunal therefore accepts that the delegate reached the required state of mind.
Accordingly, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act.
Did the s.107 notice provide sufficient particulars?
The second validity question that arises is whether the NOICC complied with the requirements of s.107 of the Act by providing sufficient particulars in the notice to fairly inform the applicant of the basis upon which the cancellation was being considered.
The Tribunal accepts that there were sufficient particulars of the incorrect information provided by the applicant in support of his offshore humanitarian visa application. The applicant was informed that his failure to disclose his correct name, identity and nationality, indicated that he had given incorrect information in his application, namely that he was a stateless person who was liable to harm if he returned to Iran.
The other statutory requirements for the issue of the s.107 notice
The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised he should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b). The notice set out the time period within which to provide a response, relevant legislative provisions and a summary of the matters to be considered in relation to a protection visa cancellation.
The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in r.2.41 of the Migration Regulations 1994 (the Regulations), on the basis that, notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with s.101(b) and he should address the relevant discretionary issues.
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 was valid.
Was there non-compliance as described in the s.107 notice (the NOICC)?
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act. Section 101 relevantly provides:
Section 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.

The NOICC noted that the operation of s.99 of the Act meant that the information given on behalf of a person to the Minister, an officer, an authorised system, or a person, the Tribunal, or the immigration assessment authority reviewing the application for a visa, is considered to be information given in the visa application, whether it is orally or in writing or at an interview or otherwise.
The Tribunal must be satisfied as to whether or not there was non-compliance as described in the s.107 notice. It does not agree with the recent submissions of the current agent which suggest that this is almost irrelevant because there has been a “concession” by the applicant that there was relevant non-compliance. Despite whatever concession the applicant has made, the Tribunal is required to make up its own mind as to what is the incorrect information (and the correct information) and as to whether the ground for cancellation has been made out; and whether there was incorrect information given, and the circumstances of this, are directly relevant to other matters in issue[4]. This is even more important in a case such as this, where the applicant has given changing information, and, although he provided his corrected version of the information just before the Tribunal hearing, he was still not completely forthcoming when doing so[5], and, as late as 16 March 2023 the Tribunal has been provided with even more “corrected” information[6].
[4] Including matters relevant to whether the visa should be cancelled, including what is “the correct information”; whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document; the circumstances in which the non-compliance occurred; the subsequent behaviour of the applicant concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958; any other instances of non-compliance by the applicant known to the Minister; whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
[5] The submissions before the Tribunal hearing fail to provide any details of his half-siblings, a concern that had been raised in the NOICC.
[6] Paragraph 3 of the s.359A response
In considering whether or not there was non-compliance as described in the s.107 notice, the Tribunal has considered the relevant written and oral evidence before it.
The relevant contents of the NOICC
The NOICC identified and particularised the details of the incorrect information, and non-compliance, under the heading of “Particulars of the possible non-compliance”, by referring to information provided by the applicant in support of his offshore humanitarian visa application to come to Australia; the basis for grant of the subclass 200 Refugee visa to the applicant; subsequent information obtained by the Department; and then specifying why the information provided by the applicant was incorrect, as set out below. The information related to his identity, circumstances, family, his relatives, their status and documentation, and his claims.
Information provided by the applicant in support of his offshore application to come to Australia concerning identity and circumstances
According to the NOICC, certain information was provided by the applicant in support of his offshore humanitarian visa application to come to Australia. The information was sourced from his Form 842 application dated 18 August 2014, which incorporated UNHCR documents, and what he told a Departmental officer on 20 January 2015 during an interview.
The NOICC noted that the Form 842 provides the following questions and answers:
·     Question 2: “Give details of the main applicant.’’ Answer: “Family name”: “[Surname A]”; Given names: “[Given Name A]”
·     Question 25: “What is the name of the country you fear living or returning to?” Answer: “None”.
·     Question 26: “Have you left the country you fear living in?...” “Date you left”. Answer: “[date]/07/2012”.
·     Question 27: “Why do you fear living or returning to the country you listed at Question 25?” Answer: “Refer to my UNHCR file”
The NOICC noted that relevant documents from the applicant’s “United Nations High Commissioner for Refugees (UNHCR) [case number] - [Mr A]” file were contained in the Department’s (offshore) visa file. Included in these documents is a UNHCR document with the sub-heading “Summary of the Basis of the Principal Applicant’s Refugee Recognition”, which states:
[Mr A] and his parents were expelled from Baghdad, Iraq when he was about [Age] years old… He stated that from the time he and his family entered Iran; his father was able to obtain a “Green Card” for the family. He was in possession of such a card until 1382 (2002)....
Though he went to school, worked in Iran as a labourer, was able to rent house, as in line with the entitlement of his Green Card, [Mr A] claimed that he would never be recognised as an Iranian. His children were born without being issued a birth certificate...
...in 1382 (2003), he did not renew the Green Card since he was planning to leave Iran… however he was always halted by his mother. [He] claimed that during the year 1382 (2003) until 1383 (2004) [he] decided to renew his Green Card. However he was denied the renewal of his Green Card. [He] claimed that since that time he lived approximately 9 years without any ID. In 1387 (2008) [he] stated that in order to get his son to be enrolled in the school, he had to bribe his way in. [He] believed that having the Green Card or not having one does not make any difference. [He] stated that whatever his status is in Iran, he is without nationality.
[Mr A] did not want to live in Iran because as a Feyli Kurd he lacks of identity and nationality, and constantly suffered verbal harassment that people posed to [him] and his children when they catch [his] Arabic accent, calling [him] “Arab”.
The NOICC referred to Question 29 on the Form 842: “What do you believe may happen to you, or the people included in your application, if you were to return to or continue living in that country?” Answer: “Refer to my UNHCR file”. The NOICC noted that the “Summary of the Basis of the Principal Applicant’s Refugee Recognition”, states:
“[Mr A] does not possess any Iraqi Identity document and if returned to Iran, he would face great difficulties… [He] stated that he is a Feyli Kurd hence neither Iran nor Iraq recognises him as a national...He could not live in Iran because he and his family would never be recognised as Iranian national.”
The interview with a departmental officer on 20 January 2015 concerning the applicant’s identity and circumstances
The NOICC noted that the applicant was interviewed by a Departmental officer in relation to his visa application on 20 January 2015 and that he gave the following answers:
The officer asked: “Was there any particular incident that made you leave [Iran]?
The applicant answered: “The main reason was that we didn’t have national ID, we saw problems in the future, our sons could not get an education we couldn’t enrol them in proper schools and they would not have been given any certificates... ”
The officer asked: “What are the reasons why you are unable to return to Iran/Iraq?”
You answered: “I consider both countries as one, because in both we are unable to get an identity. When we were expelled from Iraq to Iran, there were some Feyli Kurds who managed to find their records to show that we were Iraqi citizens. I couldn’t, so we were told that we were Iranian and to go to Iran. Iran won’t issue any identification.”
The NOICC noted that, based on his claims that he and his wife and children were Feyli Kurds without citizenship who had been living in [Country 1], he was mandated as a refugee by UNHCR and referred to Australia for permanent resettlement. The delegate deciding his application for a refugee visa was satisfied that he was subject to persecution in Iran and that there were compelling reasons to grant a subclass 200 Refugee visa, and as he met this and other criteria for the grant of the visa. The applicant was therefore granted a subclass 200 visa on 27 April 2015.
The applicant’s family members as he declared, and subsequent information obtained by the Department put to the applicant in the NOICC
The NOICC noted that the Form 842 provides the following questions and answers:
· Question 13: “Give details of all your parents, brothers and sisters and non-dependent children. You must include half, step and adopted relatives… You must list all relatives, whether they are living, deceased, or their whereabouts are unknown. If any relative is deceased or missing/whereabouts unknown, then you must write “deceased’ or ‘unknown’ in the ‘Country where they are now living’ column.”
· Answer:

Name Sex Birth date Relationship Status Place and Country of Birth Relationship to main applicant Country where they are now living Status in country of residence

[Father’s Name]
M
[Date]
Married- Traditional Ilam-Iran Parent-Biological Deceased Asylum

[Mother]
F
[Date]
Married-Traditional Ilam-Iran Parent-Biological Iran Asylum

[Sibling 1] M
[Date]
Married-Traditional Baghdad-Iraq Sibling-Brother Iran Asylum

[Sibling 2]
M
[Date]
Married-Traditional Baghdad-Iraq Sibling-Brother Iran Asylum

[Sibling 3]
F
[Date]
Married-Traditional Baghdad-Iraq Sibling-Brother Iran Asylum

[Sibling 4]
M
[Date]
Married-Traditional Baghdad-Iraq Sibling-Brother Iran Asylum

[Sibling 5]
F
[Date]
Married-Traditional Baghdad-Iraq Sibling-Brother Iran Asylum

The NOICC noted, however, that according to Departmental records, the applicant’s parents, [Father’s Given Name] (also known as [Given name – alternative spelling]) and [Mother’s Given Name] (or [Given name – alternative spelling]) are also the parents of the following people (siblings of the applicant whom he had not declared in his Form 842):
·[Sibling 6];
·[Sibling 7];
·[Sibling 8];
·[Sibling 9];
·[Sibling 10]; and
·[Sibling 11].
Further, the delegate also noted that, according to Departmental records, the applicant’s [father] is also the father of the following people (half siblings of the applicant whom he had not declared in his Form 842):
·[Half-sibling 1];
·[Half-sibling 2];
·[Half-sibling 3];
·[Half-sibling 4];
·[Half-sibling 5];
·[Half-sibling 6];
·[Half-sibling 7];
·[Half-sibling 8];
·[Half-sibling 9];
·[Half-sibling 10]; and
·[Half-sibling 11].
It was noted thus that the applicant had failed to declare 6 siblings and 11 half-siblings in his in his Form 842.
In addition, in the NOICC, the delegate noted that, according to Departmental records, the applicant’s parents, [Father’s Given Name] (or [Given name – alternative spelling]) and [Mother’s Given Name] (or [Given name – alternative spelling]) hold certain documentation:
· The applicant’s [father] holds an Iranian shenasnameh ([number]); a birth certificate which is only issued to Iranian citizens. This indicated to the delegate that the applicant’s father is an Iranian citizen who holds Iranian documentation to attest to his Iranian citizenship. This indicates that contrary to the previous claim made by the applicant that his father’s status in Iran was that of “asylum”, he is a citizen of Iran.
· The applicant’s [mother] also holds an Iranian shenasnameh ([number]) indicating that the applicant’s mother is an Iranian citizen who holds Iranian documentation to attest to her Iranian citizenship. This indicates that contrary to the previous claim made by the applicant that his mother’s status in Iran was that of “asylum”, she is a citizen of Iran.
The delegate referred to Article 976 of the Civil Code of Iran which states:
The following persons are considered to be Iranian subjects:
1. All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government;
2. Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran.
The delegate stated that the applicant is a citizen of Iran by operation of Article 976 of the Civil Code of Iran because the applicant’s father is a citizen of Iran, and that therefore the applicant acquired Iranian citizenship from birth.
The delegate also noted that, according to Departmental records:
·     The applicant’s sister [Sibling 7] (not previously declared as a sibling by the applicant in his Form 842) is a citizen of Iran;
·     The applicant’s brother [Sibling 6] (not previously declared as a sibling by the applicant in his Form 842) is a citizen of Iran;
·     The applicant’s sister [Sibling 5] (also known as [married name and alias]) is a citizen of Iran although the applicant previously declared in his Form 842 that her status in Iran was that of “asylum”; and
·     The applicant’s brother [Sibling 2] is a citizen of Iran although the applicant previously declared in his Form 842 that his status in Iran was that of “asylum”.
Further, as the applicant’s siblings’ surnames are [Surname C] (or [Surname C alternative spelling]) the delegate considers that this indicates that the applicant’s surname is also [Surname C] (or [Surname C alternative spelling].
Basis for grant of XB 200 (Refugee) visa
It was stated in the NOICC that the applicant was granted a subclass 200 Refugee visa by the Department on the basis of the applicant’s claims that he and his family were Feyli Kurds without citizenship who had been living in [Country 1], and he was mandated as a refugee by the UNHCR and referred to Australia for permanent resettlement. The delegate deciding the application for a refugee visa was satisfied that the applicant was subject to persecution in Iran and that there were therefore compelling reasons to grant him a refugee (subclass 200) visa. As the applicant met this and the other criteria for grant of the visa, he was granted a Refugee (subclass 200) visa on 27 April 2015.
Specifics of incorrect information provided in the NOICC
The delegate put to the applicant in the NOICC that he had provided incorrect information and had not complied with s.101(b) of the Act. Particulars of specific incorrect information were provided as follows:
Incorrect information as to the citizenship of the applicant and his family members and the consequences for them as to their lack of citizenship in the application form: Concerning the answer to question 27 in the Form 842 that the applicant had provided:
·     As the applicant had Iranian citizenship since his birth, his claim that he was not an Iranian citizen was incorrect because the applicant has been a citizen of Iran since birth and was therefore not “without nationality” at the time of application for the refugee visa on 18 August 2014.
·     As a citizen of Iran, the delegate noted the applicant would not have been in possession of a Green Card.
·     As an Iranian citizen, the applicant would have held a shenasnameh and would not have lived “approximately 9 years without any ID” from 2004.
·     As it appears the applicant was an Iranian citizen when his children were born, his children would have all been issued with Iranian birth certificates (shenasnameh) around the time of their birth.
·     As Iranian citizens the applicant’s children would have had the right to enrol in government schools in Iran.
Incorrect information as to the applicant’s fears if he were to return to Iran: Concerning the answer to question 29 in the Form 842, relating to the applicant’s fears if he were to return to Iran, the delegate considered this answer incorrect because the applicant is a citizen of Iran. As a citizen of Iran, the applicant would have held a shenasnameh identity document. By operation of Article 976 of the Iranian Civil Code, the applicant’s children have also been citizens of Iran since their birth because their father is a citizen of Iran. The applicant’s siblings [Sibling 7], [Sibling 5], [Sibling 6], and [Sibling 2] are citizens of Iran and hold Iranian identity documents, therefore the delegate considered that the applicant also held Iranian identity documents at the time he applied for a Refugee visa on 18 August 2014.
Incorrect information as to the applicant’s name: Concerning question 2 in the Form 842 (the applicant’s name), the delegate noted that, as the family name of the applicant’s siblings is [Surname C] or [Surname C alternative spelling], the applicant’s correct name is [Surname C] or [Surname C alternative spelling] and not [Surname A]. The delegate noted that it appeared the applicant had shortened his name to [Surname A] from [Surname C] or [Surname C alternative spelling].
Incorrect information as to the applicant’s siblings and parents: Concerning question 13 in the Form 842 (about the applicant’s parents and siblings), the delegate considered this answer incorrect, because the applicant did not provide in answer to this question the details of all his siblings and half-siblings, details of whom were referred to in the NOICC. In addition, the delegate noted that the applicant stated in answer to Question 13 on the Form 842 that his parents and siblings had “asylum” status in Iran, but that this answer is incorrect because the applicant’s parents and siblings were citizens of Iran at the time the applicant applied for a refugee visa on 18 August 2014.
As the delegate considered that the applicant’s answers to questions 2, 13, 27 and 29 on Form 842 were incorrect, the delegate considered that the applicant did not comply with s.101(b) of the Act in relation to these answers.
The applicant’s submission on the s.107 notice
The applicant’s response to the NOICC provided 15 and 30 January 2019
The applicant’s then agent provided submissions to the Department in response to the NOICC as to whether the applicant had given incorrect information. In summary, the representative made the following points in relation to whether there was non-compliance:
· The applicant’s surname is “[Surname A]”. It is not [Surname C] or [Surname C alternative spelling]. He reasonably believes his surname to be “[Surname A]”. He has never known his father by any name other than “[Surname A]”.
· The applicant disputes that his parents were Iranian citizens at the time he made his visa application. They did not have any formal documentation attesting to Iranian citizenship. None of his parents or family were able to obtain proper documentation or obtain any benefits of citizenship because of prolific corruption. The applicant and his family were unable to own a home, study higher education nor obtain proper employment because they were considered by Iranian society not to be Iranian citizens. They suffered discrimination as they were considered to be Feyli Kurds and not Iranian.
The applicant’s undated statement provided with the submissions stated:
·     “I would like to start by declaring that at no stage have I deliberately provided false or misleading information” and “I have been very honest with my answers”.
·     He is a Feyli Kurd and faced oppression in Iran and Iraq. His family were driven from Iraq under Saddam Hussain and settled in Iran, but faced discrimination there. Although he and his family lived for many years in Iran they could never gain Iranian identity because they were considered foreigners. They were deprived of social rights including that they were unable to own a home, study higher education or obtain proper employment. He suffered discrimination and racial slurs at school (you are an Arab and should go back to your country). Both he and his son, [Child 3], also suffered discrimination and racial slurs in Iran and at school as a Feyli Kurd.
·     Just because there may be an entitlement through birth does not translate into Iranian citizenship, and they were dealing with a corrupt system with poor records. His own family records were non-existent. He attempted to arrange citizenship for his children, but it was not possible.
·     Neither Iran nor Iraq recognise his citizenship. Iran refused to renew his green card, meaning that he lived many years without formal identification.
·     His father was born in a small village in Ilam, Iran and his birth was not registered. His father was issued a green card by Iran that lists his birthplace as in Iraq. His mother was born in a different village in Ilam, and her birth was also not registered.
·     The Department has made an error in finding that his parents are Iranian citizens, as they have never held formal documentation as evidence. As far as he is aware, his parents do not have any entitlement to the privileges of citizenship such as the right to a passport, the right to own property, to work for the government, and access to tertiary studies: this is the discrimination faced by he and his family in Iran.
·     He and his father have always used the surname [Surname A]. He declares that his is the only name he has ever known his father to use. [Surname C] is his tribe’s name and not their surname. This tribe contains thousands of people with different surnames. The applicant states that he does not have a close relationship with his brothers and does not know why they have taken their tribal name as their last name. Some Feyli Kurds in Iran paid bribes in order to get birth certificates, and he suggests that his siblings might have done this, but he does not know.
·     The applicant states that he did not intend to mislead the Department, and he had a lack of contact and close relationship with his siblings, poor communication, and a lack of physical records which was why he did not have all the information which has now been provided to the Department. The applicant states that he provided the best response possible given the facts and understanding he had at the time.
The delegate’s finding on the issue of whether there was non-compliance

The delegate considered the matters before him and found that there had been non-compliance in the way described in the notice under s.101(b). While acknowledging the requirement to have regard to the applicant’s response to the NOICC, the delegate did not accept the response. In the delegate’s decision record, it was stated that:
·The applicant did not deny that [Father’s Given Name] (or [Given name – alternative spelling]), and [Mother’s Given Name] (or [Given name – alternative spelling]) are his parents, nor that [Sibling 7], [Sibling 6], [Sibling 5] and [Sibling 2] are his siblings.
·The applicant disputed that his parents are Iranian citizens or have documents attesting to their Iranian citizenship. The delegate noted that Department records include copies of official Iranian ID documents (shenasnameh) issued to the applicant’s parents, indicating that they are citizens of Iran.
·The delegate noted Department records indicating that the applicant’s siblings [Sibling 7], [Sibling 6], [Sibling 5] and [Sibling 2] are Iranian citizens and that they all have formal documents proving their Iranian citizenship; the delegate considered that it is likely that they have been Iranian citizens by birth due to Article 976(2) of the Iranian Civil Code. The delegate therefore considered it likely that the applicant, who has the same Iranian citizen father as his siblings, also held official Iranian ID documents since birth and has been a citizen of Iran since his birth by operation of Article 976(2) of the Civil Code of Iran.
·As the applicant’s siblings were able to obtain official Iranian documentation as evidence of their citizenship, the delegate did not accept that the applicant and his family were unable to obtain documents such as a shenasnameh and Iranian passports.
·Although the delegate noted the applicant’s claims to have been subject to government corruption and claims to have believed that he and his family had lost Iranian citizenship, the delegate found that the evidence indicated that the applicant has been a citizen of Iran since his birth by operation of Iranian law and was a citizen of Iran at the time he applied for a Refugee (subclass 200) visa.
·The delegate did not accept the applicant’s claims that the Iranian government records relating to him and his family are non-existent. The delegate noted that Departmental records contain several official Iranian government documents including shenasnameh and passports issued to the applicant’s siblings and considered it likely that the applicant would also have been issued these official documents. The delegate therefore did not consider it likely that the applicant and his family would have been denied basic rights available to all citizens of Iran. The delegate therefore found that the answer to question 27 (why do you fear living or returning to the country you listed at question 25) was incorrect, as the delegate found the applicant to have been an Iranian citizen since birth and not without nationality. The delegate found that the applicant would not have been in possession of a green card, and instead would have held a shenasnameh, meaning that his claim to have lived “approximately for 9 years without any ID from 2004” to be incorrect. The delegate did not accept his claim that he is not recognised as a national and he could not live in Iran because he and his family would never be recognised as Iranian nationals. Further it was considered that, as the applicant is an Iranian citizen, his children would also have been issued shenasnameh, and that his answer to question 29 was therefore incorrect.
·The delegate found that, as the surnames of the applicant’s siblings are [Surname C] or [Surname C alternative spelling], the applicant’s likely correct name is also [Surname C] and not [Surname A]. The applicant therefore found that the applicant’s answer to question 2 (give details of the main applicant) was incorrect.
·The delegate found that the applicant’s answer to question 13 (give details of all of your parents, brothers and sisters…) to be incorrect, as the applicant did not list all of his siblings and half-siblings. Further incorrect information was that applicant stated that his siblings had ‘asylum’ status in Iran, but that this was incorrect because his parents and siblings were Iranian citizens at the time he applied for a refugee via on 18 August 2014.
Changed pre-hearing claim to the Tribunal made by the applicant as to whether there was non-compliance as described in the s.107 notice
As noted above at paragraph 12, the applicant changed his position as to his identity, nationality, family members, claims and documents on 16 November 2020, shortly before the hearing. Contrary to the applicant’s position when responding to the NOICC, it was confirmed in the submissions to eh Tribunal that there was non-compliance as described in the s.107 notice, and explanations were provided in the submissions and attached statements from the applicant and his wife.
At hearing the Tribunal asked the applicant questions about the claims he had previously made and what he now asserts is correct. The Tribunal put to the applicant that the NOICC contains numerous instances where it appears that he gave incorrect information when applying to come to Australia as a refugee. He said in response that he gave false information. He confirmed to the Tribunal that there was non-compliance with s.101(b) by him in the way described in the s.107 notice.
The Tribunal has considered the explanations and the circumstances below (in the sections referring to “the correct information” and “the circumstances in which the non-compliance occurred”) for giving the incorrect information.
The most recent submissions from the current agent cause some concern. On 10 March 2023 the current agent repeatedly states that the applicant has conceded the incorrect information and that there was non-compliance as described in the s.107 notice, prior to the hearing in November 2020. As noted above, the incorrect information attributed to the applicant in the NOICC includes what he had stated in the 20 January 2015 interview to the delegate. While maintaining the concession as to the incorrect information and that there was non-compliance as described in the s.107 notice, the agent makes a submission that appears to undermine that concession. The current agent suggests that the interview notes made by the Department relating to the 20 January 2015 interview may be unreliable and that it is procedurally unfair to rely upon the same. She does not explain why the concession has been made about the incorrect information if there was, or is, a suggestion that the record of the interview from 20 January 2015 may have been unreliable.
The Tribunal has considered whether it should seek clarification from the applicant as to whether he is seeking to change his concession, however it notes that the applicant did tell the Tribunal at hearing that he gave false information and that there was non-compliance with s.101(b) by him in the way described in the s.107 notice.
The Tribunal considers that if there was any doubt about the record of the interview from 20 January 2015, the applicant has had many opportunities to raise this. He has never before suggested that this was incorrect. It appears from the current agent’s submission that neither she nor anyone else representing the applicant has ever sought to request a copy of the interview notes or recording (and that they had never sought a copy of the Department’s offshore file, which contained the record of the interview). The Tribunal has now sent a copy of the written notes of the interview to the agent and advised that it does not have a recording of the interview.
The Tribunal has compared the notes of the interview against what the delegate stated in the NOICC (as set out at paragraph 46 above) and it is the same. The Tribunal does not accept the very late assertion that the notes of the interview are unreliable.
Finding on whether there was non-compliance as described in the s.107 notice
The Tribunal had regard to the applicant’s response to the NOICC (which, as discussed, has subsequently changed). The Tribunal accepts the applicant’s subsequent concession that he gave false information, and is positively satisfied that he gave incorrect information in making his offshore Humanitarian visa application. On the basis of the information above, the Tribunal is positively satisfied that the applicant gave incorrect answers to questions 2, 13, 27 and 29 in his application form and that he gave incorrect information at interview as set out in the NOICC. The Tribunal is positively satisfied that there was non-compliance in the way described in the s.107 notice.
For the reasons set out above, 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?
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).
Matters to be considered by the Tribunal
The Tribunal must consider both prescribed circumstances, and other considerations, which are explained below.
Prescribed circumstances: 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, which are summarised as follows: the correct information; the content of the genuine document (if any); whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document; the circumstances in which the non-compliance occurred; the present circumstances of the visa holder; the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; any other instances of non-compliance by the visa holder known to the Minister; the time that has elapsed since the non-compliance; any breaches of the law since the non-compliance and the seriousness of those breaches; and any contribution made by the holder to the community.
Other considerations: While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The delegate’s decision to cancel
For contextual reasons, noting that the submissions and evidence of the applicant and his wife to the Tribunal have been made in response to the delegate’s decision record and that a copy of the record was provided to the Tribunal by the applicant, the Tribunal has set out the reasons of the delegate for cancelling the visa. The Tribunal notes that the delegate did not have the applicant’s family’s documents nor concessions when making these findings and deciding to cancel the visa. The Tribunal also notes that it makes up its own mind on the relevant issues; it does not follow the delegate’s findings.
In deciding to cancel the visas the delegate found as follows:
·     The correct information: The delegate found that the correct information is that the applicant and his wife and children are citizens of Iran by operation of the Iranian Civil Code, and that it is therefore likely that the applicant and his children have been citizens of Iran since their birth. The delegate found that, in the application for a Refugee visa, the applicant incorrectly stated that he and his children are stateless. The delegate gave this consideration no weight in favour of the applicant.
·     The content of the genuine document: The delegate noted that this consideration was inapplicable.
·     Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document: The delegate noted that the applicant was granted his Refugee (subclass 200) visa because he was assessed as meeting the criteria for the grant of this visa. The delegate noted that one of these criteria was criterion 200.211, which requires the applicant to be outside their home country and subject to persecution in the home country. The delegate noted that, on 29 January 2015, a delegate of the minister made the following assessment of the applicant and his family in relation to this criterion:
“The applicant is a Feyli Kurd without citizenship who has been living in [Country 1]. They are mandated as a refugee by UNHCR and referred to Australia for permanent resettlement…I am satisfied that the applicant is subject to persecution in their home country…”
The delegate found that content of the delegate’s assessment indicates that the decision that the applicant met criterion 200.211 for the grant of his Refugee (subclass 200) visa was based, at least partly, on incorrect information that the applicant was without citizenship. The delegate gave this consideration no weight in favour of the applicant.
·The circumstances in which the non-compliance occurred: The delegate’s decision record referred back to the available evidence from Departmental records indicating that the applicant’s parents and several of his siblings acquired official Iranian identity documents (such as Iranian passports and shenasnameh) that are only issued to Iranian citizens; as the applicant’s parents and siblings were issued official Iranian identity documents, the delegate found that it was highly likely that the applicant and his children were also issued Iranian shenasnameh and passports. The delegate did not find it credible that the applicant and his family were unable to obtain Iranian citizenship documentation. The delegate did not accept the applicant’s claims that he and his family came to believe they had lost their Iranian citizenship, but instead that the applicant and his family incorrectly purported to be stateless to facilitate the grant of a refugee visa. Further, the delegate considered that as the applicant’s parents, siblings and half-siblings all appear to have the surname [Surname C] (or [Surname C alternative spelling]) and this name appears on official ID documents issued by the Iranian government, the delegate considered that [Surname C] (or [Surname C alternative spelling]) is likely to be the applicant’s correct surname and that the applicant likely provided the incorrect surname [Surname A] in his application for a refugee visa so his family links to his Iranian citizen relatives would not be apparent. The delegate considered that the applicant deliberately provided incorrect information about his and his family’s citizenship and surname to facilitate the grant of a Refugee visa. The delegate gave this consideration no weight in favour of the applicant.
·The present circumstances of the applicant: The delegate noted that the applicant, his wife, and their sons have been living in Australia since they first entered Australia [in] June 2015. Reference was made to submissions that the applicant’s family, particularly his wife, suffered psychological distress as a result of ill-treatment during their travel to Australia and that she receives counselling. The delegate noted that, according to Centrelink records, the applicant’s wife is presently receiving a Disability Support Pension and the applicant receives a Carer Allowance. Based on this information, the delegate found it likely that the applicant and his family would suffer financial hardship and his wife may suffer further psychological hardship if the visa holder’s Refugee visa is cancelled. The delegate gave this consideration some weight in favour of the applicant.
·The subsequent behaviour of the applicant concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958: The delegate noted that the applicant did not voluntarily give the correct information about his Iranian citizenship to the Department in the period after he was granted his Refugee (subclass 200) visa and before he was sent the s.107 notice. The delegate noted that, in his response to the s.107 notice, the applicant conceded that he “may be” an Iranian citizen after being presented with credible evidence that his parents and siblings are Iranian citizens. The delegate noted that he denied that either of his parents were Iranian citizens at the time he made his visa application, and he denied that they had any formal documentation attesting to Iranian citizenship, despite being presented with credible evidence of their shenasnameh numbers. The delegate gave this consideration no weight in favour of the applicant.
·Any other instances of non-compliance by the applicant known to the Minister: The delegate noted that there were no other instances of non-compliance known by the Minister, and gave this a little weight in the applicants’ favour.
·The time that has elapsed since the non-compliance: The delegate noted that about four years had elapsed since the applicant’s non-compliance with s.101. The delegate noted that, during this time, the applicant and his family have formed some ties to Australia. The delegate gave this consideration a little weight in favour of the applicant.
·Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate noted that no breaches of the law by the applicant since his non-compliance with s.101 were known to him. The delegate gave this consideration a little weight in favour of the applicant.
·Any contribution made by the holder to the community: The delegate noted the submission that the applicant had completed several practical skill development courses including [Subjects 1 and 2], which he had used to help some families in his local community, and that he had recently obtained part-time employment as a contract [Occupations 1 and 2]. The delegate gave this consideration a little weight in favour of the applicant.
·Other matters:
- Whether there are persons in Australia whose visas would, or may, be cancelled consequentially: The delegate noted that, in the event the visa is cancelled, the dependent applicants’ visas would be consequentially cancelled. The delegate gave this a little weight in favour of the applicant.
- Non-refoulement obligations: The delegate noted that it was submitted in the response to the NOICC that the applicant and his family began regularly attending [Church 1] in [Suburb], ACT about October 2015 and they were baptised as Christians about July 2016; if the applicant and his family were forced to return to Iran, they would be severely persecuted for converting to Christianity; and the applicant’s wife has already received death threats from her family because of her conversion to Christianity.
- The delegate noted that a decision to cancel a visa is not in itself a decision to remove a person from Australia, and is not, in and of itself, a breach of non-refoulement obligations. The delegate noted that, if the applicant’s visa were cancelled, it would be open to him and his family to apply for a Protection visa in Australia. The applicant’s claims that he and his family fear persecution in Iran on account of their Christian religion could be submitted in a Protection visa application and considered by the Minister’s delegate processing the application, who would consider, among other things, if the applicant and his family would be at risk of harm for a Refugees Convention reason if he were removed from Australia. The delegate therefore considered that a decision to cancel the applicant visa would not necessarily cause him to be returned to a receiving country resulting in a breach of Australia’s non-refoulement obligations under the Refugees Convention or the Convention Against Torture (CAT).
- Rights of the child: The delegate noted that Australia has international treaty obligations under the UN Convention on the Rights of the Child 1989 (CROC), which states that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
- The delegate noted that Australian courts have generally found that it is in the best interests of children to remain with their family. The delegate noted that, if the applicant’s Refugee visa was cancelled under s.109 of the Act, the subclass 200 visas of his wife and their sons would be cancelled consequentially under s.140(1) of the Act. As their visas would all be cancelled, the delegate noted that it is likely that the applicant and his family would all leave Australia together. The delegate noted that the applicant’s son [Child 3] has been living in Australia for about four years and has been educated in the Australian high school system during this period of time, and that it is likely [Child 3] nearly completed his primary school education in Iran before leaving Iran, so it is likely he is literate in the Persian language. The delegate noted that [Child 3] may experience some difficulties readjusting to life in Iran, especially because his lack of secondary education in the Persian language may make it more difficult for him to access employment and educational opportunities in Iran. On the other hand, the delegate noted that the English language proficiency [Child 3] has acquired in the Australian education system may provide bilingual employment and educational opportunities for him in Iran. The delegate found that, while a decision to cancel the applicant’s visa may cause some degree of hardship for [Child 3] if he had to leave Australia and return to Iran with his parents, such a decision would necessarily be contrary to [Child 3]’s best interests.
- The delegate found it to be likely that the applicant’s sons [Child 2] and [Child 1] have not received any formal education in the Persian language in Iran, and that it is likely all their formal education thus far has been in Australia in the Australian primary school system in the English language. The delegate noted that, at their age, adjusting to primary school in Iran in a different language if they were to return to Iran with their parents may cause them some hardship. However, the delegate considered the hardship they would probably experience in Iran would be likely to be temporary, as young children generally adjust quickly to new environments. The delegate was not satisfied that a decision to cancel the applicant’s visa would necessarily be contrary to the best interests of his sons [Child 2] and [Child 1]. The delegate gave this consideration a little weight in favour of the applicant.
- Whether there are mandatory legal consequences to a cancellation decision: The delegate noted that a decision to cancel the applicant’s visa would result in the applicant and his family becoming unlawful non-citizens and liable to be detained and removed from Australia. The delegate noted that the applicant may also be subject to s.48 of the Act, which may prevent him from applying for prescribed visas while in Australia. The delegate noted that any further visa applications by the applicant may also be affected by Public Interest Criterion 4013 limiting the granting of a further visa for a specified period. The delegate noted that the applicant and his family may not be permitted to work in Australia following a visa cancellation decision. The delegate considered these to be standard legal consequences that may arise in the event of a visa cancellation outcome, although acknowledged they are likely to cause some hardship for the applicant. The delegate gave this consideration a little weight in favour of the applicant.

The delegate decided to cancel the visas.
The Tribunal’s consideration as to whether the visa should be cancelled
Consideration of prescribed circumstances, and other considerations
The Tribunal has had regard to the applicant’s response to the NOICC, however as noted above, and in more detail below, some of those responses have now changed in significant respects, and have essentially been conceded as also incorrect by the applicant now. The Tribunal has considered all other information before it.
The correct information
The Tribunal has found that the correct information is contrary to the information the applicant relied upon in making his application for a subclass 200 Refugee visa as referred to in the NOICC. The Tribunal has made this finding for the following reasons.
The applicant’s initial assertion about the “correct information” is set out in his response to the NOICC. In responding to the NOICC, the applicant maintained that the applicant’s name is “[Surname A]”. He has only known his father by the surname of [Surname A] and that [Surname C] is the name of the tribe and applies to thousands of people, but ‘[Surname A]’ was chosen by the applicant’s father to be the family surname. He does not have a close relationship with his siblings and does not know why they have chosen to use their tribal name. It is submitted that this led the applicant to believe genuinely that his surname is [Surname A]. Neither of the applicant’s parents were Iranian citizens when he made the visa application, and they did not have any documents attesting to their citizenship; he did not have Iranian citizenship or documents which in itself led to discrimination; he essentially had no reason to believe that he or his parents or siblings were citizens of Iran; the applicant lacked a substantial amount of information and paperwork, and that he did not have any documents relating to his family members’ citizenship and provided information to the best of his ability, and that he is not close to his siblings so does not know how they obtained documents (implying that if his siblings had official documents, these must have been obtained through bribery/fraud); records of his family were non-existent; his parents never held formal documentation nor do they have any entitlement to the privileges of citizenship; his immediate family faced the same difficulties he had concerning a lack of documentation and a lack of citizenship; and there is an incorrect assumption being made by the Department based on country information as to the entitlement to citizenship just because there is a law. Iranian citizenship laws are more complicated. The applicant and his family, including his parents, were unable to own a home, study higher education, or obtain proper employment as they were not considered to be Iranian citizens. The applicant and his family faced discrimination and segregation due to being Feyli Kurds and were not considered Iranians.
The submission states, somewhat confusingly, that although the applicant and his family “may have had Iranian citizenship, they were unable to derive any benefit from the citizenship to the extent that none of [Mr A]’s family members were able to obtain citizenship documentation whilst he was in Iran due to the prolific corruption. We submit that, in these circumstances, it was not unreasonable for [Mr A] to consider that he and his family had lost any Iranian nationality or citizenship”. The Tribunal does not consider this to be a concession in the response to the NOICC that the applicant or his family ever had citizenship documents, especially noting the applicant’s response maintains that his parents and consequently he, and his children, were not entitled to citizenship and that despite living many years in Iran neither he nor his family were ever able to gain Iranian identity. He also claimed that he tried but could not obtain citizenship for his children.
The applicant’s changed assertion about the “correct information”: The information provided to the Tribunal in the pre-hearing submissions and statement, just prior to the hearing, represented an about-face. While maintaining that the applicant (and his family) are Feyli Kurds, it is stated that the applicant, his wife, and children have Iranian citizenship, and copies of their shenasnameh and their National ID with translations were provided. It was conceded that the applicant and his family members were not stateless as claimed. He confirmed that he was an Iranian national and that his family had Iranian documents.
He claimed that he had had “no reason” to shorten his surname to “[Surname A]” from [Surname C] when applying through UNHCR, other than he did not like his surname, in Iran he had been questioned about it as it was not common, and people would comment that it is a Jewish name.
The reason he did not declare all his siblings is that people in the camp would tell them that it is better not to mention all the family members as they may not be accepted if our family was too big.
It is correct that he gave the information at the interview to the delegate as recorded in the NOICC; he felt that he could not change the story that the agent told him to say about having no identity.
He declares 9 siblings and he provided their corrected details as follows:
·     [Sibling 8] (brother) lives in Tehran
·     [Sibling 1] (brother) lives in Tehran
·     [Sibling 9] (brother) lives in [Country 2]
·     [Sibling 6] (brother) lives in Melbourne, Australia (at hearing he told the Tribunal that this sibling is the same as the sibling listed in the NOICC as [Sibling 10])
·     [Sibling 2] (brother) lives in [Country 3]
·     [Sibling 3] (sister) lives in [Country 3]
·     [Sibling 4] (brother) lives in Iran (at hearing he told the Tribunal that this sibling is the same as the sibling listed in the NOICC as [Sibling 11])
·     [Sibling 7] (sister) lives in Melbourne, Australia
·     [Sibling 5] (sister) lives in [Country 3]
As noted above, in his statement he made no reference to the 11 half siblings referred to in the NOICC.
Concerns as to the applicant’s changing evidence as to what is the correct information
At hearing the Tribunal discussed with the applicant its concerns with the changes in his evidence, over time, as to what was the correct information.
The surname of the applicant: The applicant had informed UNHCR in his claim to be a refugee, and the Department in his application for a subclass 200 refugee visa that his name was [Mr A]. He maintained this claim not only with UNHCR and with the Department in his offshore visa application, but even when the Department put to him in the NOICC that his name was actually, [Mr C, with Surname C] or [Surname C – alternative spelling], and not [Surname A], he still did not admit to what he now claims is his actual name. He maintained a false name throughout the visa application process, and the cancellation process, right up until just before the Tribunal hearing.
At hearing the applicant admitted the surname [Surname A] is incorrect. He then said that his family name was originally [Surname A]. His father changed it from [Surname A] to [Surname C], which is their tribal name. He thinks this occurred in about 1980; he accepted that this occurred well before he came to [Country 1] and Australia.
Citizenship/stateless/ green card holder/ possession of shenasnameh and passport: The applicant had informed UNHCR in his claim to be a refugee, and the Department in his application for a subclass 200 refugee visa that he, and his family members, were stateless Feyli Kurds who were not citizens or nationals of Iran, and that after having held a green card in Iran until 2002/2003, he was undocumented for 9 years until about 2012. This was maintained in his response to the NOICC and he even went to the extent of claiming that, if his siblings had obtained identity documents, this was probably through bribery.
The prehearing Tribunal submissions attached copies of shenasnameh for the applicant and his family, and the national ID cards for the applicant and his wife, with translations:
·     Iranian birth certificate for the applicant’s son [Child 1] issued [Date] stating he was born on [Date] in Tehran, and his parents are the applicant and the applicant’s wife (national ID numbers are provided);
·     Iranian birth certificate for the applicant’s son [Child 2] issued [Date], stating he was born on [Date] in Tehran, and his parents are the applicant and the applicant’s wife (national ID numbers are provided);
·     Iranian birth certificate for the applicant’s son [Child 3] (date of issue not provided), stating he was born on [Date] in Tehran, and his parents are the applicant and the applicant’s wife (national ID numbers are provided);
·     The applicant’s wife’s Iranian “Identity card/birth certificate”, stating she was born on [Date] in Ilam, that she is married to [Mr C] born [Date] (ID card issued in Baghdad), that they have three children born [Year], [Year], [Year], and that they married on [Date]. There is a concern with this document as it is stated to have been issued on [Date] however if this was the case, it could not have referred to later events (her marriage and birth of her 3 children);
·     Iranian National Identity card for the applicant’s wife (no date of issue);
·     Iranian identity card/birth certificate for the applicant ([Mr C]) stating he was born on [Date] in Baghdad, that he is married to [Ms D] born [Date], that they have three children born [Year], [Year], [Year], and that they married on [Date]. There is a concern with this document as it is stated to have been issued on [Date] however if this was the case, it could not have referred to later events (her marriage and birth of her 3 children);
·     Iranian identity card for the applicant ([Mr C]).
In the applicant’s pre-hearing statement he said that when the family left Iran they travelled on genuine passports.
The Tribunal put to the applicant his earlier claim that Iran would not issue any identity documentation was untrue and he agreed. The Tribunal put to him that he provided a story about a green card which could not have been correct because at the time, he was an Iranian citizen. The applicant said that initially when they entered Iran they got a green card for some time, but later on his father claimed citizenship. There were 2 instances when refugees were allowed to claim citizenship (1971) and (1980); his father obtained citizenship during the Shah regime. The Tribunal asked again whether his story about the green card relating to him was incorrect and he agreed. The Tribunal put to him that it was incorrect because he was actually an Iranian citizen and he agreed and said yes but still a second-class citizen and this did not change the situation for them. The Tribunal asked whether he was suggesting there was no change in entitlements between people who were citizens and those who were unregistered. He responded that yes there is, one can register something in your name however when you go and submit the document, your card still shows that you were born in Iraq.

100. The applicant admitted that his parents held a shenasnameh contrary to what he had claimed in his response to the NOICC. He confirmed that the submissions made in response to the NOICC on his behalf about the nationality law, to the effect that he had no nationality which was a reason he could not live in Iran, were incorrect.
101. The Tribunal put to him that his claims about not being able to get citizenship for his children was also not true. He did not disagree.
102. The Tribunal put to him that he presented a whole story to UNHCR and to the Department which is not true; he responded by saying he did tell them that he was a Feyli Kurd however the difference is that he was a documented Feyli Kurd.
103. Concerns as to the change in details about his siblings: Similarly, the applicant had informed UNHCR in his claim to be a refugee, and the Department in his application for a subclass 200 Refugee visa that his only siblings were three brothers and two sisters. His response to the NOICC was that he did not intend to mislead the Department about his siblings; due to poor communication and a lack of contact and a lack of physical records he didn’t have the information before the Department, and he said that he didn’t know why his siblings had used a different surname. He did not take the opportunity to declare what was and was not true and correct about his siblings and half-siblings. He clearly could have done so because later, he did. It was not until a few days before the Tribunal’s hearing that the applicant admitted, for the first time, that he had 9 siblings (6 brothers and 3 sisters):
·     He corrected the names of those he had previously declared in his offshore visa application: [Sibling 1] (he lives in Tehran); [Sibling 2] (he lives in [Country 3]); [Sibling 3] (she lives in [Country 3]); [Sibling 4] (he lives in Iran); and [Sibling 5] (she lives in [Country 3]).
·     He declared the remaining siblings: [Sibling 6] (brother who lives in Melbourne Australia); [Sibling 7] (sister who lives in Melbourne Australia); [Sibling 8] (brother who lives in Tehran); [Sibling 9] (brother who lives in [Country 2]).
104. At hearing the applicant admitted that his earlier claims about the details of his parents/siblings were not true in a number of respects. The Tribunal noted that he had previously maintained that his father and siblings’ surname was [Surname A], and that his mother and siblings were all living in Iran and all are refugees. The Tribunal asked how many relatives were not included in the information he provided in support of his offshore visa application. He said there are 10 siblings (including himself) with the same mother and father. He had declared 5 (as well as himself); the following siblings were not declared in his offshore application:
·     [Sibling 6] (his brother who is in Australia). He has 3 children: 1 in Iran and 2 in Australia.
·     [Sibling 7] (his sister who is in Australia). She has 2 children and a partner in Australia.
·     [Sibling 8].
·     [Sibling 9].
105. He said that in addition, there are 11 half siblings (same father, different mother). He stated that 2 of these step-siblings are in Australia:
·   Stepsister [Half-sibling 1] – 1 child – she divorced in Iran and she ran away so does not have a partner here.
·   Stepsister [Half-sibling 2] – 2 children and a partner; he thinks they may have separated here.
106. He gave corrected information as to the siblings he had previously declared in his offshore visa application:
·     [Sibling 1] (the applicant had previously provided this name as [Surname A]). He has left Iran to visit [Country 4] and then he returned to Iran, where he works as [an Occupation 3].
·     [Sibling 2] (the applicant had provided this name as [Surname A]). He was educated in [Country 5] and then went to [Country 3] about 40 years ago. He travelled to Australia about 3 years ago. The Tribunal put to the applicant that his evidence indicated that when he made his offshore visa application, claiming that [Sibling 2] was living in Iran (having the status of “asylum”) this was not true and the applicant agreed.
·     [Sibling 3] (the applicant had provided this name as [Surname A]). She went to [Country 3] about 25 years ago. The Tribunal put to the applicant that his evidence indicated that when he made his offshore visa application, claiming that [Sibling 3] was living in Iran (having the status of “asylum”), this was not true and the applicant agreed.
·     [Sibling 4] (the applicant had provided this name as [Surname A]). He resides in Tehran however he studied [Occupation 4] in [Country 6], finished and returned to Iran.
·     [Sibling 5]. He thinks that by 2014/2015 she had already changed her name to [Surname A]. The Tribunal asked why she wanted to change her name to [Surname A]. He said this was because their surname [Surname C] is long and they were mocked for it. He said she went to [Country 3] about 40 years ago, as [Surname C] and then she changed her name to [Surname A]. She later married a [Country 3] national and has kept her husband’s surname. She visited Australia 3-4 years ago when the applicant was here. She returned to [Country 3].
Summary of the correct information:
107. The correct information is that, at the time he applied for his refugee visa on 18 August 2014:
·     The applicant’s name is [Mr C], not [Mr A];
·     He is a citizen of Iran by birth and was not stateless/without nationality;
·     As a citizen of Iran he had never needed to be, and never was, in possession of a green card
·     As a citizen of Iran he would have (and did) hold a shenasnameh/identity document and would not have lived approximately 9 years without any ID from 2004;
·     As he was a citizen of Iran when his children were born, his children would have been issued with shenasnameh around the time of their birth (and they were)
·     As Iranian citizens the children would have had the right to enrol in schools in Iran and the eldest son (the only child old enough to attend school at the time) did attend school
·     The applicant has 9 sibling and 11 half-siblings (despite his declaration of only declared 5 siblings).
·     The applicant’s parents and siblings were citizens of Iran and thus did not have “asylum status”.
108. The Tribunal acknowledges the documents produced by the applicant and his family. It was acknowledged by the previous agent, in terms of the documents, that the genuineness of the documents cannot be attested to, as the originals remain in Iran. It is submitted that while these are only copies, the shenasnameh ID numbers are similar to those described in the NOICC (and slight discrepancies may have occurred due to interpretation errors). It was stated that the applicant wants to provide correct information and has taken action to ensure copies of his identity documents are provided to the Tribunal.
109. The Tribunal put to the applicant that it has to weigh everything up to see whether it will accept that the copy documents provided now are true and correct. The Tribunal notes that they contain further inconsistent information, namely that the applicant and the dates of birth of his 3 children are inconsistent with everything he had previously claimed until the prehearing Tribunal submissions, and that as noted above the documents of the applicant and his wife could not have been issued on the date stated as they contain information about events that occurred after that date.
110. The Tribunal is not prepared to accept that the copy identity documents provided by the applicant for himself and his family are true and correct, given the significant credibility concerns with the applicant. The Tribunal nevertheless accepts that the applicants do have shenasnameh, Iranian passports and identity cards, and that they aways have.
111. The Tribunal considers that the significance and extent of the correct information weighs significantly in favour of the cancellation of the applicant’s visa.
The content of the genuine document (if any)
112. This prescribed matter is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
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
113. In the November 2020 pre-hearing Tribunal submissions it was noted that the delegate granted the subclass 200 refugee visa after 2 refugee status determination processes:
·     the applicant was a mandated refugee by UNHCR; and
·     the applicant met the criteria for the grant of a subclass 200 refugee visa.
114. The agent sought a copy of the Departmental cancellation file (but not the offshore grant file) and stated that they received a “heavily-redacted copy of the Department file” which made it difficult to determine the decision-making process for the 2 processes above. The agent contacted UNHCR to obtain a copy of the applicant’s file, and in response they received a summary of the applicant’s claims and basis for UNHCR recognition in an email dated 2 September 2020. It was submitted that the applicant was recognised by the UNHCR on the basis of his ethnicity as a Feyli Kurd, and that he was assessed as stateless based on the applicant’s information.

232. Although it is not suggested that these children proselytise, the evidence before the Tribunal does not indicate the children practise their faith in isolation; rather they are engaged with the life of the congregation and have been for a number of years. The Tribunal accepts that should they return to Iran, they would wish to participate in their faith in a similar way. The Tribunal considers, however, that if these Westernised children return to Iran and openly practised their Christian faith, there would be a real risk of drawing adverse attention to themselves by the community and the Iranian authorities. It is likely that their parents would insist that the children not practice or openly refer to their religion due to fear of harm. This would be difficult for the children.
233. When weighing all of this, and considering that the young children are not at all responsible for the actions and untruths of their father (or mother), they left their home in Iran and spent years in [Country 1], and then moved to Australia where they have now spent their formative years, and the Tribunal accepts that they are integrated into their schools, community, church, and life in Australia and that they have adopted the Australian way of life, the Tribunal accepts that a return to Iran is not in the best interests of these 2 young children. The Tribunal finds that the best interests of both of these children would be served by not cancelling the applicant’s visa (which would mean that their visas were also not consequentially cancelled and that they could remain in Australia). The Tribunal accepts that this is a primary consideration in exercising the discretion to cancel, and gives this significant weight against the applicant’s visa being cancelled.
International obligations: non-refoulement obligations relating to the applicant and his family members
234. The evidence and submissions raise a potential breach of Australia's non‑refoulement obligations in relation to the issue of Christianity, including a sur place claim of the use of [Social media] and religion, former anti-government protestor who has previously come to the adverse attention of the authorities and been detained in a toilet, westernisation of the adults, return to Iran given the current security situation, being Kurdish, and the mental health consequences of return for the wife, as well as the children under 18 years, discussed in part above. The Tribunal has concerns about a number of the non-refoulement claims raised, for example:
·     There is inconsistent evidence as to when Christianity became a relevant factor, with some of the evidence indicating this occurred in [Country 1] before they lodged their applications with the Department. However, if this was the case, the question arises as to why such a significant claim was omitted from the offshore humanitarian visa application. Further, the Tribunal considered that the applicant’s inability to discuss his religion in detail at the hearing caused concern about his devotion and motivation to be involved in Christianity.
·     The wife has given inconsistent evidence about harm faced by her brother; she claimed that her conversion to Christianity led to a death threat from her eldest brother (and a letter from [Organisation 1] dated 9 January 2019 states that she had an anxiety attack when recounting this), however this claim was not referred to in her statutory declaration on 14 March 2023; she makes no mention of any death threat from her brother; instead she claims simply that “My brother, [named], has stopped talking to me since he found out that I am Christian. He told me it would put him and our family in danger if we returned and he did not approve of my decision”.
·     The DFAT report notes: DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities. Concerning Feyli Kurds who are citizens of Iran, DFAT states that they enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Feyli Kurds for mistreatment, regardless of the category to which they belong. This country information further undermined the late claims of the applicant and his wife[26] of more significant instances of harm experienced in Iran.
[26] She claimed that she had been hit by a guard when she was younger.
235. However, the Tribunal considers it is unnecessary to determine whether non-refoulement obligations are owed in respect of the applicant (and his family members). As put to the applicant, Departmental records indicate that neither he nor his family members have previously made an application for a protection visa in Australia and there does not appear to be any bar preventing them from lodging applications for protection visas in Australia. They are able to make an application for a protection visa, "in which case the existence or otherwise of non‑refoulement obligations would be fully considered in the course of processing that application", and they are not liable for removal pending assessment of any protection visa application as per the process provided for in the legislation for determination of such matters. The making of a protection visa application is the key mechanism provided for by the Act for considering claims by a non‑citizen that they would suffer harm if returned to their home country: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
236. The Tribunal thus considers that if a decision was made to cancel the applicant’s visa, the applicant (and his family members) could lodge a protection visa application where their claims would be considered. This entitlement weighs in favour of cancellation, however the Tribunal notes that this would lead to a further delay in determining the family’s status. While the Tribunal considers that the applicant and his wife, who obtained visas they were probably not entitled to, should properly have to wait their turn for the consideration of a protection visa application, the situation is different when considering the consequences for the three children, who were not involved in their parents’ plans. The Tribunal considers that the additional delay and uncertainty for the applicant’s three children in determining status would have a significant impact on [Child 3], who is affected by his lack of status in the cost of his studies, and it is reasonable to accept that such uncertainty would have an effect on his ability to obtain work commensurate with his skills upon the completion of his studies. The uncertainty and delay will also, to a lesser extent, have an impact on the 2 younger children. When balancing these matters, the Tribunal considers that this factor should be given some weight against the cancellation of the applicant’s visa.
Mandatory legal consequences

If the applicant’s visa is cancelled, he would be without a visa after any bridging visa expired. Section 189 leaves the applicant liable to be detained. However, as noted above, the applicant (and his family) is able to lodge a protection visa application, and there are no factors before the Tribunal indicating that he (or his family) would not be granted a bridging visa to remain in the community while his protection visa application was pending.
It is submitted in the latest submissions that there is no guarantee that a protection visa would be granted; the Tribunal agrees with this assertion. The Tribunal considers that if the protection visa application were unsuccessful, the applicant would refuse 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, which applies to the applicant because he arrived in Australia in 2015.

239. This could indicate the applicant may be in detention for an extended period. The Tribunal places some weight on this as a factor against cancellation for the reason that the applicant may remain in indefinite detention.
Any other relevant matters
240. The Tribunal has considered all relevant matters including hardship to the family. The Tribunal accepts that leaving Australia after a significant period of residence here, to return to Iran, would lead to hardship for the applicant and his family members. In particular, it notes the security situation in Iran, referred to above when considering the best interests of the children. The Tribunal accepts that the country information above refers to generalised violence, crime and crackdowns in the wake of the protests. Although this may fall outside of the scope of the protection visa framework, when considering this factor in relation to the applicant (and his wife and the eldest child), the Tribunal considers that the current country conditions carry moderate weight against the cancellation of the applicant’s visa.
Conclusion
241. In the present case, the nature and extent of the correct information, the circumstances in which the non-compliance occurred, the other instances of non-compliance and the subsequent behaviour of the applicant strongly weigh in favour of cancellation. The Tribunal has found that the applicant engaged in deliberate deception and migration fraud, and remained untruthful when his deception was put to him. He has continued to give evasive and untruthful responses.
242. The Tribunal has noted, but will not consider, the non-refoulement obligations in relation to the applicant and his wife.
243. There are however significant reasons against cancellation of the applicant’s visa. The Tribunal gives weight to the applicant’s present circumstances (which include those circumstances of his family members for whom he has been responsible), the fact that there are 4 consequential cancellations based upon the cancellation of the applicant’s visa, the time that has elapsed and the general hardship that would be experienced by the applicant, his wife and his children if the visas were cancelled, including the possibility of prolonged detention of the applicant, and the very volatile country conditions in Iran, and which could lead to adverse attention of the authorities being directed to the applicant and his family if their visas were cancelled and they were to be returned. If not for the primary consideration of the young children under 18 years, who are Christian, westernised, settled in their school and community, and who have lived much of their young lives in Australia, and who would face significant difficulties in Iran, and the consideration of the eldest child [Child 3] who is trying to make the most of his life and is responsibly paying for his tertiary education tuition while holding down a number of jobs, the Tribunal considers that the extent of the deception engaged in by the applicant and his wife would have led to the cancellation of the applicant’s visa. However, when weighing the strong reasons for cancellation against the matters noted in this paragraph, including the best interests of the two young children as a primary consideration, and the hardship that would be suffered by [Child 3] if the applicant’s visa was to be cancelled, the Tribunal concludes that it should not exercise the discretion to cancel the applicant’s visa.
244. Accordingly, the decision to cancel the applicant’s visa is set aside and substituted with a decision that the visa should not be cancelled.
Procedural matters
245. Prior to setting out its conclusion and decision, the Tribunal notes that there were some procedural matters raised.
246. Non-disclosure certificates
247. The Tribunal noted at the first hearing that the agent had raised that the (Departmental cancellation) file received from the Department was heavily redacted[27]. The Tribunal requested that the agent provide the redacted version so it could ascertain what the applicants did and did not have access to, and so that it could properly comply with its s.359A obligations. At the hearing the Tribunal put to the applicant that there were two non-disclosure certificates, one appeared to be valid and one appeared invalid.
[27] The Tribunal initially thought that the applicant had also requested the offshore grant file but it was confirmed after the hearing that this was not the case.
248. The Tribunal initially assumed that the agent would have sought both the Departmental cancellation file as well as the original Departmental offshore file in their FOI request. It was confirmed after the hearing that this was not the case. The only file containing a non-disclosure certificate is the Department’s cancellation file.
249. The Tribunal wrote to the Department noting that it appeared that the certificate(s) may be invalid. The Department considered that earlier certificates were invalid and issued a new certificate under s.376 on 1 March 2023. Under this certificate it was stated that certain folios should not be disclosed as s.376(1)(a) applies and that disclosure of this material would be contrary to the public interest because it discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. Further, additional folios contained information that had been given in confidence: s.376(1)(b). A copy of the certificate was sent to the agent noting that the Tribunal considered that the certificate appears to be valid, subject to any comments they may wish to make, and that the Tribunal considered that, in relation to the material not available to the applicant, it has put to the applicant pursuant to s.359A of the Act any relevant information for comment and/or response.
250. The agent may have misread the Tribunal’s letter as she asserted that the Tribunal had already made a finding on the validity of the certificate by the time it asked for submissions on the validity of the certificate and had issued the s.359A letter. Nevertheless, the Tribunal considered the submissions made concerning the validity of the certificate. The applicant appears to have engaged in further correspondence with the Department relating to the release of documents under FOI and although it is asserted that some of the documents covered by the certificate have been released to the applicant, the applicant has not provided copies of the correspondence with the Department to the Tribunal.
251. The Tribunal considers that the folios the subject of the non-disclosure certificate meet the descriptions given in the certificate: being against the public interest to disclose and containing information given in confidence. The Tribunal is satisfied that the certificate specifies a public interest reason for non-disclosure of the information, and that the documents specified are consistent with that reason. The certificate is signed and dated and identifies the documents to which it applies. As a result, the Tribunal considers the certificate validly issued under s.376 of the Act. The Tribunal decided not to exercise its discretion to release the folios as it considers this would disclose methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and information given in confidence.
Other matters
252. The Tribunal notes that the at no time after the hearing (at which the Tribunal raised serious credibility concerns) was it suggested by the applicant that the hearing involved issues of procedural unfairness. It was only after the Tribunal sent its s.359A letter containing serious written allegations about the applicant relating to immigration fraud that a request was made for the member to recuse herself, along with allegations of procedural unfairness.
253. The Tribunal carefully considered the allegations but did not consider it appropriate to recuse herself. The Tribunal does not intend to respond to all of the allegations in this decision; however, it does make some comments. The Tribunal did not accept the assertions as to inadequate translating, as the agent was invited to provide evidence showing that what was translated was incorrectly translated, but failed to do so. Further, as put to the agent, the Tribunal did not agree that the transcript she had provided was correct; it contained serious errors. Further, it appeared clear that the agent relied upon the transcript (only) to suggest that the Tribunal had interrupted the applicant when giving evidence; however, listening to the actual recording, it was apparent that, on numerous occasions, the applicant had answered the question and then the Tribunal had asked another question (rather than an interruption). It was also suggested that the Tribunal had interrupted the applicant and his wife on other occasions; with which the Tribunal agrees, noting that this was to ask the applicant (or his wife) to answer the question that had been asked.
254. The submissions complained that the Tribunal had put to the applicant its concerns during the hearing; indicating that perhaps the agent did not understand that the inquisitorial nature of the proceedings before the Tribunal. The submissions incorrectly asserted that the Tribunal member had made up her mind, at both the hearing, and in the s.359A letter (despite the Tribunal having prefaced its s.359A letter as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.

255. As noted above, the s.359A response also appeared to take issue, for the first time, with the notes of the delegate’s interview held with the applicant back in 2015; the Tribunal has not accepted this late claim. The Tribunal considers that if the reliability of the interview was a concern, it would be expected that at least one of the 3 or 4 different agents representing the applicant over a period of time would have requested the notes or recording of the interview, as well as a copy of the Department’s offshore file containing the documents forming the basis of the grant of the subclass 200 (Refugee) visas.
Conclusion
256. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
257. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
258. The Tribunal has no jurisdiction with respect to the other applicant.
Christine Cody
Member

Annexure A – 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.

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Natural Justice
Jurisdiction
Statutory Construction
Remedies

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Citations

1914537 (Migration) [2023] AATA 823

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Zhao v MIMA [2000] FCA 1235

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Name	Sex	Birth date	Relationship Status	Place and Country of Birth	Relationship to main applicant	Country where they are now living	Status in country of residence
[Father’s Name]	M	[Date]	Married- Traditional	Ilam-Iran	Parent-Biological	Deceased	Asylum
[Mother]	F	[Date]	Married-Traditional	Ilam-Iran	Parent-Biological	Iran	Asylum
[Sibling 1]	M	[Date]	Married-Traditional	Baghdad-Iraq	Sibling-Brother	Iran	Asylum
[Sibling 2]	M	[Date]	Married-Traditional	Baghdad-Iraq	Sibling-Brother	Iran	Asylum
[Sibling 3]	F	[Date]	Married-Traditional	Baghdad-Iraq	Sibling-Brother	Iran	Asylum
[Sibling 4]	M	[Date]	Married-Traditional	Baghdad-Iraq	Sibling-Brother	Iran	Asylum
[Sibling 5]	F	[Date]	Married-Traditional	Baghdad-Iraq	Sibling-Brother	Iran	Asylum

[2023] AATA 823

31 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies