1917470 (Refugee)

[2021] AATA 4392

1917470 (Refugee) [2021] AATA 4392 (30 August 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917470

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE OF DECISION:  30 August 2021

DATE CORRIGENDUM

SIGNED:24 September 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On page 2, paragraph 4 of the Decision Record, it incorrectly reads that the ‘applicant’s visa should be affirmed’. This should read as ‘applicant’s visa should be set aside’.

Kira Raif
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917470

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:30 August 2021

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 866 (Protection) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 August 2021 at 8:54pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – nationality – stateless – race – Faili Kurd – Iranian citizenship – identity documents – employment – best interests of the children – military service – non-refoulement obligations – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41; Schedule 2

CASES

Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

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 first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) was born in Iran in [year]. He was granted the protection visa in August 2012. In April 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. It is recorded that the applicant did not respond to the NOICC and his visa was cancelled on 25 June 2019. The visas held by the applicant’s spouse and two children have also been cancelled and they seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 30 August 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 applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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?

7. 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.

8. 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?

9. 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.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant, his wife and two children arrived in Australia [in] December 2010 as Irregular Maritime Arrivals. The applicant completed a biodata form and stated that he held a national ID card, a document confirming completion of military service and a driver license. In an entry interview conducted on 2 January 2011 the applicant denied having these documents and stated that he had only referred to these documents because he feared being deported without any documents.

11. The applicant made an application for the Protection Obligations evaluation in which he provided a statement dated 5 March 2011. In that statement, the applicant claimed to be a stateless Faili Kurd from Iran. He claimed that his parents were born in Iraq and were expelled to Iran. The applicant stated that neither he nor his siblings had been to Iraq and his parents had not returned to Iraq. The applicant stated that his father was deceased and his mother was living in Iran. His family was never issued with a Green card of any identity documents, his marriage was not recognised and the authorities refused to register the births of his children. His father could not register his own birth. The applicant claimed to have departed Iran using a false Iranian passport.

12. In April 2012 the applicant was found to have met the definition of a refugee. He made the application for the Class XA protection visa on 1 August 2012. In that application the applicant completed Form 866 and provided the following answers:

    -At question 20 the applicant was asked about his citizenship at birth and he stated “stateless / Iran”

    -At question 21 the applicant was asked his current citizenship and he did not provide a response

    -At Question 42 - 46  the applicant referred to the statement of 5 March 2011 in which he referred to being stateless in Iran, after his parents were expelled from Iraq. He claimed that  as a stateless Faili Kurd he was unable to register the births of his children, and had access to very limited education for which his father had to pay. The applicant stated that he was unable to obtain health insurance and had to pay for medical expenses privately. He did not have permission to work and was forced to break the law to survive and he could not find regular work and was not paid as much as Iranian citizens. The applicant refers to the constant risk from Basij and other authorities. The applicant stated that he would be killed if returned to Iran by the Basij because he has no permission to live in Iran and would be accused of being a terrorist because he had been to a Western country. The applicant claimed that he cannot relocate due to his stateless status.

13. The applicant was granted the protection visa in August 2012.

14. The primary decision record indicates that the applicant’s nephew [Mr A], who arrived in Australia in June 2013, is a documented Iranian citizen. The primary decision record indicates that [Mr A] identified his father as [Mr B] while the applicant referred to his brother [Mr B] in his own application. The delegate notes that [social media] profiles for the applicant and [Mr A] show that they are known to each other. The delegate concluded that [Mr B] and his father are Iranian citizens. The delegate referred to the Iranian laws which indicate that Iranian citizenship is derived through parental lines and since the applicant and his brother [Mr B] share the same father, it would indicate that the applicant was also an Iranian citizen, as his father was a citizen.

15. The primary decision record indicates that the brother, half brother and nephew of the applicant’s spouse [named] are confirmed Iranian citizens, contrary to the applicant’s claim in his protection visa application that his wife was also stateless.

16. In October 2018 the Department received advice from [a state authority] that the applicant provided his Iranian driver license as evidence of his driving experience, when applying for the driver license in [Australia] in 2012. This would contradict the information the applicant gave in his entry interview that he had no identity documents and that his initial advice that he did have identity documents was incorrect.

17. In August 2021 the applicant provided to the Tribunal his Iranian national ID card, birth certificate and the identity documents for his family members. In his submission to the Tribunal of 23 August 2021 the applicants concede that they have been Iranian citizens from birth and admit that there was non-compliance with s. 101.

18. The Tribunal finds that the applicant gave incorrect answers on the form when claiming in his application that he was stateless and did not have permission to live in Iran. The Tribunal finds that the applicant gave incorrect answers on the form when he claimed that as a stateless person in Iran, he had no access to employment and healthcare and was paid less than others. The applicant gave incorrect answers when claiming he could not register his marriage and the births of his children or that his own birth could not be registered. The Tribunal finds that the applicant gave an incorrect answer when claiming he left Iran on a false passport. The applicant gave incorrect answer when stating he was fearful of returning to Iran because Basij would harm him due to his stateless status. The Tribunal further finds that the applicant gave incorrect answer in his interview on 2 January 2011 when stating that he had no identity documents and an answer at an interview is taken to be an answer on the application form. The Tribunal finds that  the applicant completed his form in a way that incorrect answers were given or provided. The Tribunal finds there was non-compliance with s. 101 of the Act in a way described in the Notice.

    Should the visa be cancelled?

19. 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).

20. 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

21. The correct information is that the visa applicant (and his family) were citizens of Iran from birth. That means that the applicant was not discriminated against due to his stateless status and was able to have access to health care and employment and was able to register his marriage and the births of his children. The correct information is that the applicant was able to leave Iran lawfully. The correct information is that the applicant would not have been fearful of the Basij due to his unlawful status.

    The content of the genuine document (if any)

22. This is not relevant to the present review.

    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

23. 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. The correct information is that the applicant was not stateless but was a citizen of Iran. The applicant concedes that to be the case in his evidence to the Tribunal, and his country of nationality should have been assessed as Iran.

24. The applicant also confirmed in oral evidence to the Tribunal that his parents were not expelled from Iran and that he is not a Faili Kurd, although he is of Kurdish ethnicity. The applicant told the Tribunal that he was not sure where his parents were born but thought they were born in Iran as they had the Iranian national certificates and were Iranian nationals.

25. The information in the primary decision indicates that the applicant’s claimed statelessness was central to his protection claims. The applicant claimed that as a result of his stateless status, he could not obtain employment at the same pay as citizens and was denied equal access to other services such as healthcare. The applicant stated that as a result of being stateless, he faced discrimination in various aspects of his life and was fearful of the Basij as he had no right to live in the country. The applicant’s status as a stateless person in Iran formed the very basis of his claims and was significant, if not central to the decision to grant him the visa. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

26. In his oral evidence, the applicant states that when he arrived in Australia, everyone else on the boat was of Kurdish ethnicity and wanted to make claims of being stateless and he followed their advice. In his initial interview he did refer to having identity documents but everyone blamed him for jeopardising their situation and he was afraid as there were fights in the camp. The applicant told the Tribunal that his brother in law came to Australia a few months earlier and he also provided incorrect answers. When his brother in law heard from the applicant that he claimed to have Iranian documents, he also told the applicant that it would jeopardise his own situation because his brother in law claimed to be stateless. The applicant states that  his children were still young at the time he was afraid of everything, so he did what was suggested.

27. The applicant’s wife (the second named applicant) who also gave oral evidence to the Tribunal stated that they did so to help her brother, who claimed to be a Faili Kurd, and because there were many other Kurds in the detention centre who gave them the same advice.

28. The applicant’s evidence indicates that the applicant provided the incorrect information deliberately and knowingly in order to improve his (and others’) chances of obtaining the visas. The Tribunal finds that the breach was deliberate.

    The present circumstances of the visa holder

29. In his evidence to the Tribunal the applicant states that he and his family reside in [a named town] and had lived in Australia since their first arrival in December 2010. The applicant states that he works as [an Occupation 1] and his wife is a housewife. Their [son], who is [age], completed [grade] and holds a [qualification] and works [in a related occupation] in a very good company. His daughter is [age] years of age, is currently in [grade] and is considered to be one of the top students at school. She will be completing her [schooling] and intends to enter [university] to study medicine. The applicant states that his elder children were young ([specified ages]) when they came to Australia and have little Persian, their English is the first language. The applicant claims that his daughter’s first language is English and she would not be able to study in Iran. His daughter does not wear hijab and would find it difficult to live there. The applicant told the Tribunal that he has not  considered other visa options. The youngest child was born in [year] and is an Australian citizen. The Tribunal accepts the applicant’s evidence and accepts that the family is well settled in Australia and has formed strong ties to this country.

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

30. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act. The applicant confirmed in his evidence to the Tribunal that he did not respond to the NOICC because ‘he had nothing to say’ and was afraid to tell the truth.

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

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

    The time that has elapsed since the non-compliance

32. The application for the protection was visa was made in August 2012 and nine years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period and that the family have settled in Australia in that time.

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

33. There are no known breaches of the law.

    Any contribution made by the holder to the community

34. The applicant states that his daughter is involved in a tutoring program and assists with tutoring primary school students with migrant and refugee background. The Tribunal accepts that evidence and also accepts that the family have contributed through employment and the payment of taxes.

35. 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.

36. The visas held by the applicant’s spouse and two children 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

37. The applicant’s two elder children are over the age of 18 and are no longer considered to be children. Their circumstances are addressed elsewhere in this decision. The youngest child was born in [year] and is an Australian citizen.

38. In his written submission to the Tribunal the applicant states that his children would have better prospects in Australia than in Iran. The applicant refers to the children’s safety, freedom and education in Australia. In the Tribunal’s view, these claims are very generalised and lack probative supporting evidence. It is not clear why the youngest child (who is the only minor child in this family) would have better prospects in Australia than Iran or better education and safety and the Tribunal is not prepared to accept such claims unquestioningly.

1. The applicant submits that the children have spent most of their lives in Australia, have their friends and acquaintances here and have limited writing and reading skills to get jobs in Iran. As noted above, for purpose of this consideration, the Tribunal is only concerned with the minor child and not the elder children and the effect of the visa cancellation on the other  children is address below. The Tribunal acknowledges that the youngest child is an Australian citizen. However, in the Tribunal’s view, that does not necessarily mean that it is in the best interests of that child to live in Australia. It is not uncommon for children to move to a different country where their parents’ circumstances require it, and indeed this is what happened with the two elder children in this case, when the family moved from Iran to Australia. The Tribunal is of the view that it is in the best interest of the child to be cared for by both parents but given the child’s young age, the Tribunal is of the view that this can happen in any country and not only in Australia. The Tribunal is not satisfied that the child will be disadvantaged if she were to live in Iran and the applicant’s written evidence to the Tribunal is that she would be able to acquire the Iranian citizenship, despite being an Australian citizen. (The applicant told the Tribunal that he is not familiar with the process but his representative confirmed that the child is entitled to the Iranian citizenship from birth and needs to complete some forms to confirm the citizenship.)

2. The applicant states that when his younger daughter grows up, she may regret that despite being born in Australia and being an Australia citizen, she was forced to live in Iran and she would blame him for what he has done and the effect it has had on her. The Tribunal considers it purely speculative that the applicant’s daughter may prefer life in Australia to life in Iran and that she would be unhappy living in Iran and blame the applicant for it. The Tribunal is also mindful that as an Australian citizen, the youngest child will have an option of returning to, and living in Australia when she is able to live independently.

3. The applicant submits that it would be in the best interests of the child to remain in Australia as part of an integral family unit with her parents and siblings. As noted above, the Tribunal accepts that it would be in the best interests of the child to be with her parents and siblings btu the Tribunal does not accept this must be in Australia. In the particular circumstances of this case, the Tribunal has formed the view that the best interests of the child would not be adversely affected by the cancellation of the visa.

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

4. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

5. The applicant told the Tribunal that if the family has to return to Iran, his son would have to do compulsory military service, otherwise he would not be able to do anything, such as get a passport or a driver license. The applicant states that his son does not wish to do the military service and serve the government that is hated by the international community. The son told him that he would not return to Iran where he would be detained for not performing his military service. The applicant’s son, who also gave oral evidence to the Tribunal, stated that the Iranian government is considered as terrorists by the international community and he did not wish to perform military service in Iran.

6. The applicant states that the authorities in Iran would not know where he was and he does not know what he could tell them. To the extent that the applicant claims he would be of adverse interest to the authorities as a failed asylum seeker, the Tribunal does not consider this would be the case. The April 2020 DFAT report on Iran relevantly states

   Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran.

   As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

7. The Tribunal notes that the applicant does not claim to have been involved in any political activities in Iran prior to his departure or to have had any political or other profile that would be of adverse interest to the authorities in Iran. Neither has the applicant claimed that he had any involvement in political or other activities since entering Australia that may bring him to the adverse attention of the Iranian authorities. The Tribunal has formed the view that the applicant would not be of any adverse interest to the authorities in Iran, if he were to return to Iran.

8. The applicant told the Tribunal that neither he nor his family wish to return to Iran. According to the DFAT report,

   5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.

   5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person's imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.

9. The applicant’s evidence to the Tribunal is that he had a genuine Iranian passport. As such, if the applicant was to return to Iran, he would do so using his legitimate passport and not temporary travel documents. The information cited above indicates that the applicant’s protection claims and the basis of the protection grant would be of little or no interest to the Iranian authorities. The Tribunal has formed the view that the applicant does not have an adverse profile in Iran and he would therefore be unlikely to attract an attention upon his return.

10. The Tribunal has also considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

11. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached with respect to the applicant as a result of the cancellation.

12. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee Convention or complementary protection obligations. The Tribunal has formed the view on the very limited evidence before it that such obligations would not arise in this case with respect to the applicant.

13. The Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations.

    Whether there are mandatory legal consequences

14. If the applicant’s visa is cancelled, and if he is not granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. The applicant can make applications for certain visas in Australia without the Ministerial intervention but he would have very limited opportunities to do so. (The Tribunal is mindful that many restrictions would arise due to the applicant’s mode of arrival in Australia rather than due to the cancellation of his visa.) The applicant can make applications for visas offshore and may be subject to an exclusion period in relation to some such applications. If the visa is cancelled and if the applicant refuses to return to Iran, the applicant may be subject to long (or even indefinite) detention. If the visa is cancelled, he may lose some of the benefits and entitlements he had 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).

15. The applicant states that his children grew up in a free democracy with Western values and would have difficulties to adjust to the Islamic norms and values in Iran. The applicant states that they have their friends and connections in Australia and have limited Persian to be able to obtain jobs in Iran. The elder children provided statutory declarations to the Tribunal outlining their circumstances and the Tribunal accepts their evidence. The Tribunal accepts that the elder children would prefer to remain in Australia and that they have strong ties to Australia and may have limited connections to, and knowledge of, the Iranian way of life. The Tribunal is also prepared to accept that they may find it difficult, at least initially, to adapt to life in Iran. The Tribunal is mindful, however, that when the family made the decision to migrate from Iran to Australia, the parents made the decision to uproot the children, to take them away from the familiarity of Iran where the children may have had social connections and friends and extended family and where they were used to the Iranian way of life. The parents made the decision that the children will be able to adapt to the new life in Australia and learn English and they appear to have done so successfully.

16. The applicant provided to the Tribunal a number of character references and supporting statements. The Tribunal accepts that those who presented these statements believe the applicants to be of good character and the Tribunal also accepts the applicants have community support. Both the applicant and his partner expressed regret about his conduct and the Tribunal acknowledges their expression of remorse, although the Tribunal is mindful that the remorse was only expressed in response to the cancellation of the visas and that prior to the NOICC being issued, the applicants had taken no steps to contact the Department and advise of the correct information.  

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant completed his application form in a way that incorrect answers were given or provided and that he did not comply with s. 101 of the Act. The Tribunal has found that there are grounds for cancelling his visa. The Tribunal acknowledges that the cancellation of the visa would cause significant hardship to his family. This is because the family has spent a lengthy period of time in Australia and are settled in this country. The applicant’s children are pursuing study or employment and are used to the Australian way of life. His youngest child is an Australian citizen and has lived her whole life in Australia. The Tribunal acknowledges that the entire family have settled in this country and have formed strong social, employment and other ties. The family has made contribution to the community. These factors weigh strongly against the cancellation.

18. The Tribunal also places weight on the applicant’s evidence that his [daughter] in particular would be affected by the cancellation of the visa as she would be unable to pursue study in Iran (at least in the immediate future), due to her lack of language skills and the time it may take to settle in Iran. The applicant states that his children are innocent victims and had no say in his own behaviour. The Tribunal acknowledges that evidence and accepts that the cancellation of the visa, and the consequential cancellation of the visas held by his wife and children, would cause significant hardship to the children who were not involved in, and had not contributed to the breach.

19. The Tribunal places significant weight on the fact that  the decision to grant the visa was based on incorrect information. The incorrect answers concerning the applicant’s country of nationality (statelessness) and the discrimination the applicant claims to have experienced as a result of his stateless status, were central to the assessment of his eligibility for the visa and to the decision to grant him the visa. The applicant and his partner chose to provide the incorrect answers knowingly and deliberately so as not to jeopardise a relative’s application which was in itself based on incorrect answers. Normally, the Tribunal would form the view that such matters, which strongly favour the cancellation, outweigh other considerations. This is particularly so as in this case, the Tribunal has determined that the best interests of the minor child would not be adversely affected by the cancellation of the visa.

20. However, in this case, the Tribunal is mindful that the cancellation of the applicant’s visa would also lead to the cancellation of the visas held by his two children, who had not been complicit in the provision of incorrect answers. This is not the case where the Tribunal is able to reach a different decision in relation to the main applicant and his children (as would be the case if, for example, the other cancellations were made under s. 140(2) of the Act). In this case, the cancellation of the applicant’s visa will necessarily lead to the cancellation of the visas held by the applicant’s children and the Tribunal accepts the parties’ evidence that the hardship to the elder children as a result of the cancellation would be significant, given their particular circumstances. In particular, the Tribunal accepts that if the family were to return to Iran, the son might have to leave his employment in Australia and he would have to complete military service which he is unwilling to do and the daughter may be unable to engage in tertiary study, at least in the immediate future. Such matters would pose significant limitations on the children’s future aspirations. If the family were unwilling to return to Iran, they may face lengthy or indefinite detention in Australia, unless they are granted other visas and the Tribunal cannot assume that they will be permitted to do so in Australia..

21. When considering the significant hardship that the cancellation would cause to the applicant’s two elder children, and the fact that they were not in any way complicit in the provision of incorrect answers, the Tribunal has determined that in the particular circumstances of this case, these considerations should be given greater weight. The Tribunal’s decision would have been different, if the cancellation only related to the applicant and his partner – who willingly gave the incorrect answers – and did not affect the interests of their two elder children. 

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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

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

24. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    

    Senior Member