1915584 (Refugee)

[2021] AATA 2244

1915584 (Refugee) [2021] AATA 2244 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915584

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:21 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 21 May 2021 at 10:37am

CATCHWORDS
REFUGEE – protection visa – cancellation – Iran – incorrect information – false claims of being stateless Faili Kurd – Iranian citizen since birth – Australian citizen children – husband’s visa cancellation – medical condition – deliberate and intentional breach – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101-107, 109(1)
Migration Regulations 1994, Schedule 2

CASES

MIAC v Khadgi (2010) 190 FCR 248

Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant was born in [date]. She was granted the Class XA Protection visa in November 2009. The applicant was issued Notices of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she may not have complied with s. 101 of the Act. The applicant provided her responses to the NOICC and the visa was cancelled on 11 June 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant entered Australia as an irregular maritime arrival [in] September 2009. She was assessed as a person to whom protection obligations applied and on 27 November 2009 the applicant made the application for a Class XA protection visa. The applicant completed Form 866, which she signed on 16 November 2009, and in that form she gave her personal details, including name, date and place of birth. Further,

   a.at Question 12, the applicant stated she was of Kurdish-Faili ethnic group,

   b.at Question 13 the applicant stated she was a Muslim Shi’a,

   c.at Question 14 the applicant stated she married in Iran in January 2008,

   d.at Question 19 the applicant was asked about her citizenship at birth and she stated ‘stateless’,

   e.at Question 20 the applicant did not answer the question about her current citizenship,

   f.at Question 21, asking her about any other citizenship, the applicant stated ‘no’,

   g.at Question 22 the applicant stated that her parents lost the citizenship in 1980,

   h.at Question 23 the applicant stated that she left her home country in September 2009,

   i.at Question 41 the applicant stated that she was seeking protection so that she did not have to return to Iran and Iraq,

   j.at Questions 42 – 46, seeking details about the harm she feared, the applicant referred to her statement (outlined below),

   k.at Question 65 the applicant signed a declaration that the information she had supplied in the application was complete, correct and up to date.

10. As part of her refugee status assessment, the applicant provided a statement dated 16 November 2009, to which she referred in the protection visa application form 866. In that statement, the applicant claimed to be a Faili Kurd and a Muslim Shia, stating that her parents were deported to Iran in 1980 because of their Faili Kurd ethnicity. The applicant stated that despite being born in Iran, she had no rights, she was not granted citizenship, was not permitted to attend public school and only received limited education. The applicant stated that her husband had no work rights and could only work illegally and they were at risk of being deported because they had no documents. The applicant stated that they could not go back to Iraq as they would be considered as Iranian spies and would not be permitted to enter the country and she may be executed or jailed and interrogated in Iran as a Faili Kurd and deported to Iraq. The applicant claimed she would be harmed as a Faili Kurd and a stateless person.

11. The applicant was granted the protection visa on 30 November 2009.

12. In January 2014 the applicant had formally changed her name and in August 2014 she made an application for the Australian citizenship. The primary decision record indicates that the Department conducted further checks of the applicant’s identity and it was concluded that the applicant was a citizen of Iran, either from birth or upon her marriage to an Iranian citizen husband in January 2008. The delegate refers to the Iranian Civil Code of Iran which provides that a woman marrying an Iranian husband becomes an Iranian citizen. The delegate refers to evidence indicating that the applicant’s husband was in Iranian citizen and the applicant must have therefore acquired the Iranian citizenship in January 2008 upon marriage.

13. In her response to the NOICC, her written submission to the Tribunal of 11 May 2021 and oral evidence, the applicant concedes that she was an Iranian citizen from birth and the applicant submitted her Iranian identity document to the delegate. In oral evidence to the Tribunal the applicant confirmed the information and stated she acted on advice of others who told her that she would not otherwise be granted the visa. The applicant expressed remorse for her actions.

14. Having regard to the applicant’s admission, as well as the information set out in the primary decision record, the Tribunal finds that the applicant’s answers given on the application form concerning her citizenship were incorrect. In particular, the Tribunal finds that the applicant gave incorrect answers on the application form, as set out above, when stating she was a stateless Faili Kurd, had no other citizenship, and feared discrimination as a stateless Faili Kurd without state protection. The Tribunal finds that the applicant had completed the application form in a way that incorrect answers were given. The Tribunal finds there was non-compliance with s. 101 in a way described in the Notice.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

17. The correct information is that the applicant has been an Iranian citizen from birth. She was not stateless because her parents lost the citizenship in 1980. The applicant confirms in her submission of 11 May 2021 and oral evidence to the Tribunal that she was born in Iran and is an Iranian citizen. The applicant told the Tribunal that her parents were Iranian citizens and she acquired Iranian citizenship from them.

    The content of the genuine document (if any)

18. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

19. An assessment of whether protection obligations are owed by Australia is based on the applicant’s country of nationality. A country of nationality is central to any such determination. Further, the applicant’s claims were made expressly on the basis that she was a stateless Faili Kurd. The applicant claimed that because of her stateless status, she was not permitted to attend public school and had only limited education while her husband had no work rights. The applicant claimed she would be perceived as a spy and either executed or detained and deported because of her status as a stateless Faili Kurd. The applicant’s status as a stateless person in Iran formed the basis of her claims. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant extent, on incorrect information. In oral evidence, the applicant concedes that the information she gave in her protection visa and which formed the basis of the decision was untrue and expressed remorse for her actions.

    The circumstances in which the non-compliance occurred

20. The applicant explains in her response to the NOICC and evidence to the Tribunal that she provided incorrect answers on advice of a people smuggler. The applicant told the Tribunal that she was pregnant at the time and scared of everything. Others told her that unless she gave the false information, she would not be granted the visa. She was told that nobody would ever find out and there would be no consequences. That is, the applicant knew the information she was providing was incorrect and that the basis of her application was fraudulent, but she nevertheless gave incorrect answers in order to improve her chances of obtaining the visa.

21. In her oral evidence to the Tribunal the applicant claimed that she ‘had to’ lie because of her children and her daughter. The applicant states that she has not been able to see her family for many years for the sake of her children and she has been living with that lie all that time. The applicant states that at the time, the economic situation in Iran was bad and they had nothing. When asked what specific problems they had in Iran, the applicant told the Tribunal that they had nothing in Iran and were supported by parents and everyone around them was leaving, so they also decided to leave. She wanted to bring her child to Australia to have better opportunities. That is, the applicant’s desire to live in Australia appears to be purely for economic reasons and better opportunities and not because the applicant was attempting to avoid harm or persecution.

22. The Tribunal finds that the applicant gave incorrect answers knowingly and intentionally. She also believed there would be no consequences, and the applicant appears to believe that if she was not caught, that justified the provision of incorrect answers that formed the very basis on which the visa was granted. The applicant’s evidence indicates that she travelled to Australia and made the application for economic reasons and in order to seek better opportunities and not as a means of avoiding harm or persecution. In the Tribunal’s view, the circumstances in which the applicant gave incorrect information and the circumstances in which the non-compliance occurred weigh very heavily in favour of the cancellation.

    The present circumstances of the visa holder

23. The applicant has two children born in Australia in [years] respectively. Both are Australian citizens.

24. The applicant states she has completed a Diploma in Australia and she provided evidence of her employment [between] 2015 and October [2018]. The applicant states she has been unable to work due to her deteriorating health condition. The applicant submits that she has been living in Australia for many years and has embraced the Australian culture. The Tribunal is prepared to accept that evidence.

25. The applicant claims she has been diagnosed with [a medical condition] in 2014 and has been undergoing treatment. The applicant provided evidence of undergoing treatment for [the medical condition] and other evidence about her condition, including a copy of her NDIS plan. The Tribunal accepts that evidence. The applicant presented to the Tribunal a report from a psychologist. The Tribunal accepts the professional opinions set out in that report and accepts that the applicant has been diagnosed with post-traumatic stress disorder and is receiving treatment. However, the Tribunal is not satisfied on the evidence before it that adequate treatment would not be available to the applicant in Iran.

26. The applicant explained to the Tribunal that she received monthly [treatment] and now she sees the specialist every three months and visits a hospital to receive treatment every six months. In her written submissions to the Tribunal the applicant refers to the cost of her treatment and states that the treatment will be life-long and she claims she is unlikely to receive appropriate treatment in Iran as she would not be in a financial position to receive treatment. The applicant explained that in Iran people get medication from the market and it may be inappropriate or expired and people lose their lives. The applicant provided with her written submission a newspaper article about access to medication in Iran which she claims is too high and in her post-hearing submission of 20 May the applicant provided further general evidence about the cost of treatment and the effect that the lack of funds would have on the treatment. The applicant states that she would be unable to work and her husband’s income would be insufficient to cover her medical needs. As noted during the hearing, the Tribunal finds the applicant’s evidence inadequate. The applicant has not presented evidence of the actual cost of the treatment she requires, and whether there may be any subsidies from the health system, or whether she may be able to obtain health insurance or other forms of support. Even if the treatment in Iran would be different to what she has been receiving in Australia, the applicant has not satisfied the Tribunal that she would be unable to receive adequate treatment in Iran. The applicant told the Tribunal that there is no NDIS in Iran and no support or therapy and the same treatment would not be available. Even if that is the case, the applicant has not satisfied the Tribunal that she would not be able to receive adequate treatment in Iran, whether it is the same or different to the treatment she receives in Australia.

27. Overall, the Tribunal has found the applicant’s evidence concerning the availability of treatment in Iran inadequate. However, the Tribunal accepts that the applicant may not have access to the same level of support that she receives in Australia (the Tribunal is mindful that the applicant receives support funded through the NDIS and has regular visits to various health practitioners). While the Tribunal does not accept on the basis of the presented evidence that the applicant will not receive adequate treatment in Iran, the Tribunal is prepared to accept, on balance, that significant hardship would be caused to the applicant and her family by the cancellation because of the issues arising from access to healthcare, as well as other matters outlined elsewhere in this decision.

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

28. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act. While the applicant concedes she provided incorrect information in her citizenship application, the Tribunal is mindful that such a breach would not be under the Migration Act but rather the Citizenship Act.

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

29. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

30. The applicant made the application for the protection visa in 2009 and over eleven years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

31. There are no known breaches of the law.

    Any contribution made by the holder to the community.

32. The applicant refers to her voluntary activities assisting people with disabilities. She claims she had worked as a volunteer before commencing formal study. The applicant states that she has been active in the Iranian community and helping others. The Tribunal accepts the applicant has made a contribution to the community.

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

    Whether there would be consequential cancellations under s.140.

34. The applicant told the Tribunal that her husband’s visa has been cancelled through a separate process and not as a result of her visa being cancelled. Both of the applicant’s children are Australian citizens. There are thus no persons whose visas would be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living   in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

1. The applicant states that her two children were born in Australia in [years] respectively and she told the Tribunal that both are Australian citizens. The applicant told the Tribunal that they had been living happily but now they are constantly worried and that is affecting her ability to look after the children. The applicant submits the children had learned English and would have difficultly learning Farsi and adjusting to life in Iran and assimilating to the Iranian culture. The Tribunal does not accept that  evidence, given the children’s exposure to the Iranian culture and Farsi at home.

2. The applicant states that the children would have better prospects in Australia than in Iran and their return to Iran would be detrimental to the children. The applicant states that the children would have better prospects for their lives in Australia and not in Iran. The Tribunal is not satisfied that it is necessarily so. The Tribunal does not accept it as an assailable assumption that life in Australia would be better or offer more opportunities than life in any other country and in this case, the applicant has not established that would be the case. In her submission to the Tribunal of 11 May 2021 the applicant refers to her children’s safety, freedom, education and healthcare. The Tribunal considers such statements very broad and vague. It is not readily apparent why the children would have better freedoms and education and healthcare in Iran and the applicant has not presented any probative evidence to support her assertions. The Tribunal does not accept these claims.

3. The Tribunal is of the view that, given their young ages, the children would be able to adapt to the new environment and learn a new language (if there is a need for it, given their communication with parents in Farsi). The Tribunal is not satisfied the children would be denied opportunities in Iran and even if such opportunities are not the same as in Australia, the Tribunal is not satisfied the children would be denied basic rights and opportunities.

4. The Tribunal is of the view that the best interests of the children require their residence with, and the care of, their parents. However, that need not necessarily be in Australia, even though they are Australian citizens. The Tribunal accepts that life in Iran may be different and not what the children are used to but the Tribunal is not satisfied the children will be denied basic rights and opportunities. In the Tribunal’s view, the children will be able to adapt to the new life, given their young age, even if that is not what they are used to. The presence of both parents would ensure their best interests are met.

5. The applicant states that she has been receiving support in Australia and she may be in hospital for some time and she does not know how it would affect her children. For the reasons stated above, the Tribunal is not satisfied the applicant will not receive adequate health care in Iran, even if the treatment she receives is different to the treatment she has been receiving in Australia.

6. The Tribunal is not satisfied the best interests of the two children will be adversely affected by the cancellation of the visa because the children will retain the opportunity to live with their parents (noting that  their father’s visa has also been cancelled), even if their lives would be different upon relocation to Iran.

7. However, if the Tribunal is wrong in this finding, the Tribunal would accept that the best interests of the children would require their presence in Australia. The Tribunal acknowledges that this is a primary consideration, however, the Tribunal notes that it is not determinative. For the reasons stated elsewhere in this decision, the Tribunal has decided to place greater weight on other factors.

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

8. The applicant states that Iran is unpredictable and there is no guarantee as to what may happen to her. She cannot guarantee that she would not be persecuted for living overseas and nobody lives in safety or security in that country. The applicant states that many people in Iran are harmed or killed and she is frightened as she does not know what would happen to her. The Tribunal finds such broad claims unhelpful. Essentially, the applicant states that something may happen to her because things may happen. There is no evidence and the Tribunal does not accept that the applicant is or has been of any adverse interests to the authorities or that she would otherwise be targeted for any reason. The Tribunal does not consider that there is a real chance or a real risk of the applicant facing any form of harm upon return to Iran. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

9. The applicant’s mother and two siblings are in Iran and the applicant told the Tribunal she has contact with one of her siblings and mother and less frequently with the other brother. The applicant’s children are Australian citizens but would accompany her if she is required to leave Australia and her husband’s visa has also been cancelled. The family unity obligations require the applicant’s presence in Australia to be with the children (although given their ages, the children would accompany the applicant to Iran) but also the fact that her husband no longer holds an Australian visa may require the applicant’s presence in Iran.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

10. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and would be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia (which includes a Medical Treatment visa) but she would have limited opportunities to do so without Ministerial intervention. The applicant may also be eligible to seek other visas offshore but she may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing any benefits that she had acquired and may have been entitled to as a permanent resident of Australia.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

11. The applicant claims that she has been suffering from [the medical condition] from 2014 and has been undergoing treatment to manage the condition which would not be available to her. This submission has been addressed above.

12. The applicant refers to the hardship that her children would experience if they were required to move to Iran. This issue has also been addressed above and the Tribunal generally accepts that considerable hardship may be caused to the family if the visa is cancelled.

13. The applicant states that if her visa is cancelled, she may be subject to indefinite detention. It is not clear to the Tribunal why that would be the case, as there does not appear to be anything preventing the applicant from returning to Iran, even if she has no desire to do so. The applicant’s claims for protection, on the basis of which she was granted the visa, were entirely untrue and the Tribunal has formed the view that Australia’s protection obligations do not arise in this case.

14. The applicant states that she may be questioned at the airport because of her absence from the country and even if that is the case, there does not seem to be a reason why that would be problematic, given that the applicant had a legitimate visa to remain in Australia. The applicant also states that her children do not have Iranian papers and it may be difficult to prove their parentage, so the children may be taken away. The Tribunal rejects that submission. The children’s parents are both Iranian nationals and their names would appear on the children’s birth certificates. The Tribunal does not consider there is any likelihood of the children being ‘taken away’ and the applicant has not provided any probative evidence to show that the children will be unable to either acquire Iranian ‘papers’ because of their parentage or live in Iran as Australian citizens.

15. In her evidence to the Tribunal the applicant states that she is remorseful and accepts liability for her wrong-doing. The Tribunal finds that submission problematic, as the applicant’s expression of remorse has only been stated in response to the NOICC. At no time prior to the applicant facing the possibility of her visa being cancelled did she approach the Department to advise of the incorrect answers and to correct the information. Indeed, in her written submission to the Tribunal and oral evidence the applicant confirms that she provided incorrect information in her application for the Australian citizenship. In the Tribunal’s view, if the applicant was genuinely remorseful for her actions, she would have corrected the information but also provided truthful information in her citizenship application, rather than continued the misinformation on the basis of which her visa was granted. The applicant told the Tribunal she relied on advice of community members who told her not to disclose the correct information. Such evidence is of concern to the Tribunal because the issue here does not relate to some legal construct or complex information. The incorrect information relates to the applicant’s Iranian citizenship and she would have been well aware that the information she was providing was incorrect, irrespective of what advice she received from others. That is, the applicant intentionally chose to provide incorrect information because it better suited her circumstances.

16. The applicant told the Tribunal that she has no savings and no income and has been relying on Centrelink benefits since her husband had been unable to work (the Tribunal warned the applicant about self-incriminating evidence in relation to the Centrelink payments). The Tribunal is mindful that the applicant has not been a permanent resident of Australia since her visa was cancelled nearly two years ago and the applicant’s evidence indicates that she has not informed Centrelink about the change in her residence status. The applicant states that she did not know she had to but the Tribunal is of the view that the applicant would be aware of the need to inform Centrelink about changes in her circumstances, particularly something so significant as the change in her residence status.

17. The applicant also confirmed in her oral evidence to the Tribunal that when applying for the Australian citizenship, she indicated that she was stateless. That is, the applicant intentionally gave incorrect answer in her citizenship application. The Tribunal finds that the applicant continued to be untruthful in her dealings with the Australian authorities.

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that  the applicant completed the application form in a way that incorrect answers were given and that she failed to comply with s. 101 of the Act. The Tribunal has found that there are grounds for cancelling her visa.

19. The Tribunal has formed the view that there are strong ground why the visa should not be cancelled. The applicant has been living in Australia for many years and is settled in this country and has contributed to the community. Importantly, her two children were born in Australia and are Australian citizens. The Tribunal has formed the view that their best interests would not be adversely affected by the cancellation of the visa because the children will continue to have the support of their parents irrespective of their country of residence, however, if the Tribunal is wrong in these findings, the Tribunal accepts that it may be in the best interests of the children to remain in Australia. The Tribunal also accepts that significant hardship would be caused to the applicant and her family if the visa is cancelled. The Tribunal gives these factors considerable weight against the cancellation.

20. The Tribunal has formed the view that cancellation of the visa would not breach Australia’s international obligations. The Tribunal accepts that considerable hardship would be caused to the applicant and her family if the visa is cancelled and Tribunal acknowledges, in particular, the applicant’s health condition and her evidence about treatment in Iran and the effect it would have on her and her family. Such factors also weigh very heavily against the cancellation of the visa.

21. However, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information. In her protection visa application the applicant made claims which were untrue and the incorrect answers that she gave on the application form formed the basis for the grant of the visa to the applicant, which ultimately permitted the applicant to live in Australia for a lengthy period and for her children to acquire the Australian citizenship. Not only was the decision to grant the visa based on incorrect information, such information was central to the assessment of the applicant’s eligibility for the visa. The Tribunal also places weight on the circumstances in which the non-compliance occurred. The applicant’s evidence to the Tribunal is that the family were poor after the marriage and everyone around them was leaving and they thought they would have better opportunities in another country. The applicant does not suggest they were fleeing persecution or escaping from harm. They were simply seeking better opportunities and, primarily, economic opportunities in another country. In order to obtain the visa, the applicant had deliberately falsified her claims by claiming to be stateless and to experience discrimination and harm as a stateless person in Iran. The applicant continued with the same misinformation in her citizenship application. The applicant would have been well aware that the information she relied on was incorrect and her evidence is that she acted on advice of others that providing incorrect information would improve her chances of obtaining the visa. The Tribunal finds that the breach was deliberate and intentional. It was calculated to improve the applicant’s chances of obtaining the residence in Australia. Given the significance of the incorrect answers to the decision to grant the visa to the applicant, the Tribunal has formed the view that his factor outweighs other considerations.

22. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Kira Raif
    Senior Member