1918440 (Migration)

1918440 (Migration) [2020] AATA 829 (16 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918440
MEMBER:Brendan Darcy
DATE:16 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 16 March 2020 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa – ethnicity and citizenship – not stateless Faili Kurd but non-Kurdish Iranian citizen – documentation of applicant and relatives – religion – contrived claim of conversion to Christianity – two young children, one an Australian citizen – best interests of the children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
On 20 June 2019, the delegate cancelled the visa on the basis that the applicant was found to have provided incorrect answers in her application for a Protection visa, and the reasons for cancelling outweighed those against cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. Her husband also provided oral evidence via a teleconference facility.
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
Background of the applicant
The applicant arrived in Australia as an irregular maritime arrival (IMA) at Christmas Island [in] December 2011. She lodged a request for a Protection Obligations Evaluation on 18 March 2012, with an accompanying statutory declaration of claims (Dept ff. 16-17). On 2 May 2012, the Evaluation recommended the applicant be recognised as a refugee. On 11 July 2012, the applicant lodged a Form 866, Application for Protection visa, in which she claimed to be a stateless Faili Kurd, born [Date] in Tehran, Iran (Dept ff. 8-15). The applicant was granted a Protection visa on 19 July 2012.
Since the grant of this visa, Departmental records indicate the applicant has departed Australia twice. She departed Australia [in] September 2015, returning [later in] September 2015. On 17 September 2018, her Protection (XA-866) visa was converted to a Five Year Resident Return (BB-155) visa. The applicant departed Australia on this visa [in] January 2019, returning [later in] January 2019.
Was there non-compliance as described in the s.107 notice?
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 107A makes clear that the non-compliance particularised in the s.107 notice can include non-compliance with a previous visa. The s.107 notice notes that providing incorrect information on the application form for a Protection (XA-866) visa granted 19 July 2012 may result in the applicant’s Resident Return (BB-155) visa granted 17 September 2018 being liable for cancellation.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects.
The notice indicated that the applicant was recognised as a refugee on the basis of answers to questions in the Protection visa application form lodged 11 July 2012 and the earlier statutory declaration of protection claims, dated 18 March 2012, that the applicant relied on in certain answers in this form. The applicant claimed to be a stateless Faili Kurd, who had experienced discrimination including a lack of education and health access due to lack of documentation, and had been detained and assaulted by Basiji officers alongside her husband in January 2011. The applicant claimed to have left Iran illegally with her family, on a false passport. On the basis of these answers, and without any contrary information, the delegate accepted the applicant’s claim to be a stateless Faili Kurd who was owed protection.
The notice noted the applicant and [Mr A] both declared they are biological siblings with the same mother and father, [Ms B] and [Mr C], and that all the family are stateless. Further, that the applicant’s brother, [Mr A], has declared her father, [Mr C], to be the son of [Mr D] and the biological brother of [Ms E], who is the applicant’s aunt. [Ms E] submitted her Iranian birth certificate (shenesnameh) and her Iranian passport to the Department, confirming her Iranian citizenship. The notice stated [Ms E] acquired her Iranian citizenship at birth as both her parents, [Mr D] and [Ms F], are, according to her shenesnameh, Iranian citizens. The delegate considered this indicated the applicant’s father, [Mr C], acquired his Iranian citizenship at birth as Iranian citizenship descends from the paternal line and therefore she is an Iranian citizen.
The notice indicated that the applicant’s uncle, [Mr G], and father, [Mr C], are biological siblings, and that [Mr G]’s shenesnameh, submitted to the Department, shows she is an Iranian citizen by birth via his father, [Mr D], who is an Iranian citizen. [Mr G] declared in his visa application both his parents, [Mr D] and [Ms F], and his brother, [Mr C], are Iranian citizens. The notice stated this indicated Hossein and the applicant’s father share the same parents, indicating [Mr C] is also a citizen of Iran by birth via the paternal line.
In the notice, the delegate considered that, by taking family composition lists and evidence of citizenship submitted to the Department by the applicant’s family members, in conjunction with the acquisition of citizenship in Iranian nationality law, it is possible to establish which other family members automatically acquired Iranian citizenship. The delegate considers that the evidence indicates the applicant’s father’s siblings [Ms E] and [Mr G] and their father, [Mr D], are documented Iranian citizens. Given Iranian citizenship descends from the paternal line, the delegate finds the applicant’s grandfather and father, and by descent, the applicant, are Iranian citizens.
Given this, the notice outlined how the applicant did not comply with s. 101(b); the incorrect answers are particularised as such:
At question 20 of Part C of Form 866 it asked: "Your citizenship at birth", you answered:
"Stateless (Iran)". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen at the time of your birth.
At question 21 of Part C of Form 866 it asked: "Your current citizenship (if different to at birth)", you answered: "N/A". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen at the time of your birth.
At question 22 of Part C of Form 866 it asked: for "Do you hold any other citizenship or are you a national of any other country", you answered: "No". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen at the time of your birth.
At question 43 of Part C of Form 866, it asked: "Why did you leave that country?" You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC". In a statement submitted for the POE request, dated 18 March 2012, you stated that you were a stateless and undocumented Faili Kurd who was persecuted for this reason. You stated that you were harassed and persecuted by the Iranian authorities, did not have the right to work or access to education. You stated that you could not obtain documents that would help you access any of the rights extended to Iranian citizens. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. As an Iranian citizen you would have had access to the government services, social services, benefits and protections available to all Iranian citizens.
At question 44 of Part C of Form 866, it asked: "Have you experienced harm in that country?" You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC". In a statement submitted for the POE request, dated 18 March 2012, you stated that you were arrested by the Basij in January 2011, and that they assaulted you and destroyed your marriage certificate because they knew of your status as a stateless Faili Kurd. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. You attributed the harm you received directly to being stateless, however as you are an Iranian citizen, I consider your claim is incorrect.
At question 45 of Part C of Form 866, where it asked "What do you fear may happen to you if you go back to that country? " You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC". In your statement of protection claims dated 18 March 2012, you stated that you feared a real chance of harm because you left Iran illegally using a bogus passport. I consider it is unlikely you would have left Iranian illegally, as the evidence indicates you are an Iranian Citizen and therefore it is likely you departed using a legitimately issued Iranian passport. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. As a documented Iranian citizen you would not be of interest to the Iranian authorities and security agencies, as claimed, if you returned to Iran.
At question 46 of Part C of Form 866, where it asked "Who do you think may harm/mistreat you if you go back?" You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC ". In a statement submitted for the POE request, dated 18 March 2012, you stated that you claimed you would be harmed by the Iranian authorities because you are Faili Kurd who left Iran illegally. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. As a documented Iranian citizen you would not be of interest to the Iranian authorities and security agencies for the reason of being a stateless and undocumented person.
At question 47 of Part C of the Form 866, where it asked "Why do you think this will happen to you if you go back?" You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC ". In a statement submitted for the POE request, dated 18 March 2012, you claimed you would be harmed by the Iranian authorities because you are Faili Kurd who left Iran illegally. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. As a documented Iranian citizen you would not be of interest to the Iranian authorities and security agencies for the reason of being a stateless and undocumented person.
At question 48 of Part C of the Form 866, where it asked "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" You answered: "Please refer to any documents which form part of the previous protection request and held by DIAC". In a statement submitted for the POE request, dated 18 March 2012, you stated that you claimed you would be harmed by the Iranian authorities because you are Faili Kurd who left Iran illegally. I consider this answer to be incorrect as the evidence before the Department indicates that you were an Iranian citizen at the time of your Protection visa application, having acquired Iranian citizenship at birth by virtue of your father being an Iranian citizen. As a documented Iranian citizen you would not be of interest to the Iranian authorities and security agencies for the reason of being a stateless and undocumented person.
The s.107 notice, dated 7 March 2019 and sent by registered post, requested a response within the statutory timeframe. The applicant disputed that she had provided incorrect answers in her responses to the NOICC, by a letter dated 22 March 2019 and an email dated 15 May 2019, the latter attaching a statutory declaration, declared on 15 May 2019, and two Iranian documents in Farsi with English translations.
·The applicant stated she did not provide incorrect answers on her Protection application as she believes any right to Iranian citizenship she may have is not automatic and she has not initiated any processes to acquire such.
·She stated that when her father became an adult, she separated from his parent family unit and did not have any contact with her father after this time. She stated her father could not have acquired Iranian citizenship without his father’s support.
·She stated her father was invited by the Iranian Ministry of Foreign Affairs to have his status determined at least twice, but he did not attend. Copies of invitations issued by the Ministry to the applicant’s father in 1970 and 1975 were submitted with the response. Based on this, the applicant maintained her father did not register himself as an Iranian citizen and therefore she is not an Iranian citizen, but rather an undocumented Faili Kurd.
·The applicant also noted she is now aware her brother has declared their father was born in Ilam, Iran but that she doesn’t know if that information is correct and is unable to confirm whether her father was born in Iraq or Iran. She stated her father’s memory was poor and so she is unable to verify details of his birthplace.
The delegate did not accept the claims made in the applicant’s responses, finding that:
·The applicant provided incorrect information in her Protection application in regard to being a stateless Faili Kurd; she is an Iranian citizen by birth and was so at the time of her Protection application.
·Article 976 of the Civil Code of Iran states Iranian citizenship descends from the paternal line by operation of law and that a person born to an Iranian father is considered an Iranian citizen regardless of whether documentation has been issued.
·The applicant and [Mr A] are declared siblings. [Mr A] has declared [Ms E] and [Mr G], who are documented Iranian citizens, are his father [Mr C]’s siblings. Further, [Mr C] has declared his grandfather, [Mr D], is also a documented Iranian citizen. Accordingly, the applicant’s father and therefore the applicant are Iranian citizens.
·The copies of invitations for status determination addressed to her father do not confirm whether he attended these events or not. Further, he did not have to attend such to obtain citizenship as he is a citizen by operation of law given his own father’s Iranian citizenship.
The delegate found the visa was liable to cancellation and having regard to the information before them, they considered the prescribed circumstances and other relevant matters and concluded that the visa should be cancelled.
The applicant did not provide a copy of the delegate’s decision to the Tribunal.
Non-disclosure certificates and adverse information
On the Department file in relation to the current cancellation, BCC2018/4403587, is a certificate dated 22 July 2019 that purports to protect certain information under s.375A. The Tribunal wrote to the Department on 30 August 2019, noting concerns that the certificate appeared invalid due to a missing signature and requesting the Department’s advice. The Department responded to the Tribunal on 3 September 2019 with a reissued and signed certificate, now contained on the Department file.
On 25 October 2019, the Tribunal wrote to the applicant under s.359(2), inviting her to comment on the validity of the certificate, a copy of which was attached to the invitation. The same letter also invited her to comment on potentially adverse information under s.359A, some of which was excluded from disclosure through this certificate. The invitation noted that pertinent information contained within the Department folios excluded from disclosure is covered in the Department’s record of decision to cancel the visa dated 20 June 2019.
In relation to potentially adverse information, the invitation noted the following:
Some of the information that was excluded from disclosure under the above‑mentioned certificate relates to your identity and compliance with migration law.
The particulars of the information are:
·The excluded document contains an assessment by an officer of the Department of the identity and claim to be stateless of your brother, [Mr A], that was prompted by his application for Australian citizenship. The assessment takes into account information she provided at an identity interview with the Department and throughout his dealings with the Department.
·The assessment finds that your brother is not stateless as claimed in his application for a Protection visa.
·One reason is in regards to his (and by extension, your) relatives. The assessment finds that two of his paternal relatives arrived in Australia as documented Iranian citizens and information on their identity documents confirms that his grandfather, [Mr D], is also an Iranian citizen. Additionally, two other paternal relatives, residing in [Country], declared dual Iranian and [Country] citizenship on visa applications to enter Australia. Given Iranian citizenship descends from the paternal line, the assessment finds if your brother’s (and by extension, your) grandfather is an Iranian citizen then both your brother’s (and by extension, your) father, [Mr C], and your brother are Iranian citizens.
·The assessing officer concludes that your brother is an Iranian citizen, that she intentionally misled the Department in claiming to be stateless, and that she withheld his true nationality in an attempt to gain a Protection visa in Australia.
·The assessment recommends that you also be considered for visa cancellation based on these findings.
This information is relevant to the review because, if taken in tandem with the established fact, declared to the Department, that you are the sister of [Mr A] and daughter of [Mr C], it indicates you may have provided incorrect answers to multiple questions relating to your identity and citizenship in your application for a Protection visa granted 19 July 2012. It also indicates that you are not stateless as claimed in your Protection application but an Iranian citizen. This information would also be relevant to considering whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. It would also be relevant to any other mandatory and/or discretionary considerations in this matter.
If we rely on this information in making our decision, depending on your comments or response, we may find that you have provided false information to the Department in your application for Protection that constitutes non-compliance with subsection 101(b) of the Act. This subsection provides that a non-citizen must complete a visa
application form in such a way that no incorrect answers are given or provided. Section 107A of the Act provides that failure to comply with subsection 101(b) of the Act in connection with a previous visa application may be grounds for cancelling a visa holder’s current visa, that is your Resident Return visa granted on 24 September 2018. Furthermore, we may find that you have demonstrated a disregard for Australia’s migration laws and intentionally misled the Department.
As such, this information would be the reason, or a part of the reason, for affirming the decision that is under review.

The applicant’s migration agent responded to this invitation on 8 November 2019. In relation to the non-disclosure certificate, the agent submitted that, given the invitation indicated some of the information contained within the excluded folios, which relate to the applicant’s identity and citizenship, may form part of the reason for affirming the decision under review, that access to these underlying documents is essential. The representative cited court authority and the Evidence Act 1995 to argue that public interest immunity should not extend to the excluded documents and that disclosure of this information to the applicant was necessary to afford procedural fairness and would not be contrary to the public interest.
In relation to the potentially adverse information put the applicant, the representative submitted it is not possible for the applicant to adequately address these issues in this response; however, the applicant and her brother maintain they are stateless Faili Kurds and would face serious harm if returned to Iran. Regarding the identity and citizenship of her relatives, the representative noted the applicant was not provided copies of the Iranian documentation relied on by the Department, nor document evaluation reports or identity assessments the Department may have carried out in relation to family members. Accordingly, the representative submitted these concerns could not currently be adequately addressed and called for provision of these documents. In relation to the assessment that [Mr A] intentionally misled the Department, the representative submitted that the applicant should not be expected to comment on her brother’s intentions.
In relation to the non-disclosure certificate, the agent submitted that, given the invitation indicated some of the information contained within the excluded folios may form part of the basis for affirming the decision under review, that access to these underlying documents is important. The representative also noted that, given the Tribunal’s invitation noted the document indicated an investigation into migration fraud involving the applicant’s family, that findings from such may have formed part of the basis for cancelling the applicant’s visa. Further, given the visa is now cancelled and the certificate was issued over six months ago, these investigations have likely concluded and disclosure would therefore no longer prejudice the investigation. The representative asked the Tribunal to ascertain the applicability of the basis for the certificate and also made submissions that non-disclosure of this material to the applicant may constitute a denial of procedural fairness.
The Tribunal is satisfied that the non-disclosure certificate dated 10 May 2019 had been validly issued and that it has taken the appropriate means to disclose the appropriate gist of the information in accordance with the Act’s adverse information provisions and relevant case law.
Section 109
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. This s. 107 notice is also known as a Notice of a Intention to Consider Cancellation (NOICC). Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Prior to the hearing, no submissions were received by the Tribunal other than a statutory declaration from [Mr G] claiming to be the uncle of the review applicant. It was dated 25 November 2019. It states that [Mr G], born in Baghdad in 1955, is Faili Kurd as are all his family members. It further claimed that he separated from his brother, [Mr C] (father of the applicant) in 1970 when [Mr G] was expelled from Iraq and that his brother became estranged from their parents. [Mr G] claimed that he fraudulently obtained Iranian citizenship and then an Iranian passport after military service on the advice of his father (the applicant’s claimed paternal grandfather). The statement then states that [Mr G] is not aware of the documentation of his brother, [Mr C], because of his estrangement from the applicant’s grandfather and siblings.
The Tribunal provided the applicant and her representative until 25 January 2020 for any post-hearing submissions. The representative requested a further extension until 29 February 2020 which was granted. On 29 February 2020, the representative provided a written submission maintaining that the grounds for cancellation for breaching s.101 (providing incorrect information) did not exist and that she applicant is and remains a stateless Faili Kurd whose country of usual residence at the time of application for a protection visa was Iran.
Although more than three months passed, the Tribunal requested the applicant to provide some evidence of this ethnicity. However, she did not.
When cumulatively considering the evidence, the Tribunal finds that the applicant has not provided it with a genuine or credible account about her background as a Faili Kurd who was stateless at the time of non-compliance in 2011.
Despite being given ample opportunity, the Tribunal has not received a compelling explanation as to the reason the applicant’s paternal aunt, [Ms E], and paternal uncle, [Mr G], provided Iranian birth certificates and Iranian passports to the Department. The Department alleges that these documents show that [Ms E] and [Mr G] acquired Iranian citizenship at birth because their father, [Mr A], the applicant’s paternal grandfather, was an Iranian citizen. Neither was there any compelling explanation that two other paternal relatives, residing in [Country], declared dual Iranian and [Country] citizenship on visa applications to enter Australia. She has provided claims that her father and other family members from whom she is estranged for various reasons are stateless yet have not provided any written statements to support the applicant’s claims. Given their willingness to support her departure from Iran using fraudulently obtained travel and other documents this is not only curious but implausible.
The statutory declaration from the applicant’s paternal uncle, [Mr G], implied that the applicant’s father became estranged from the applicant’s grandfather and siblings and that he was only aware of arrangements to become Iranian citizens by him and his own siblings living and not by the applicant’s father. The Tribunal, as discussed in the hearing, found it difficult to understand that if the applicant’s uncle was able to fraudulently obtain Iranian citizenship then it would not be difficult to for his father to do so. Overall, the Tribunal found it difficult to reconcile the fact that one or more limbs of the applicant’s grandfather’s family were not stateless while the limb to which the applicant and his father belonged was stateless. This invited the Tribunal to consider the adjunct arguments to be far-fetched.
For instance, the Tribunal found that there being a fear of conscription as an unlikely reason for the applicant’s statelessness. Compulsory military service for Iranian males is eligible between the age of 18 and 49.[1] Given the applicant’s father was born in 1947, he was not eligible for such service since 1997, inviting the Tribunal to consider there were not meaningful obstacles in the applicant gaining Iranian citizenship. With this credibility concern in mind, the applicant was unable to provide any plausible or credible arguments that his father avoided citizenship when doing so denied educational and health services to himself and other family members. Overall the Tribunal found these arguments weak and implausible when the material advantages in acquiring citizenship were so significant for the applicant’s father.
[1] Iran – Military Conscription, GlobalSecurity.org >
Furthermore, the country information indicates that there are many ways in which stateless Faili Kurds can acquire legal citizenship through the proper channels, further undermining the credibility of the applicant’s plausibility of her claims to be, at least, stateless. In this regard, the Tribunal refers to the DFAT Thematic Report on Faili Kurds in Iraq and Iran issued in 3 December 2014.
With regard to being Faili Kurd or even Kurdish, the applicant used a Persian interpreter. She insisted her family were exiled from Iraq because they were Faili Kurds and the Iranian state never provided citizenship. The applicant claimed to be brought up in Tehran and that she did not know any Fail Kurdish and claimed to be raised speaking Kurdish while her father encouraged her to speak Farsi or Persian in public. She could not identify which language she was more proficient, adding her education to a few years in a Muslim school. (The Tribunal notes the applicant’s brother inconsistently claimed to be brought up in Ilam, not Tehran)
The applicant claimed that she did not know if she was a Sunni or Shia Muslim as her parents never discussed it. She was also unable to identify which branch of Islam most Faili Kurds belonged. Noting the applicant claimed to attend a Muslim school, these answers were curious as most Faili Kurds are Shia Muslims while most Kurds belong to Sunni Islam, further inviting the Tribunal to consider the applicant was not a Fail Kurd.
The Tribunal also found a credibility concern in the applicant’s claim that she was not aware she was Faili Kurd until she arrived in Australia, insisting her parents did not tell her anything about her family history because the misfortunes on the family were great. The Tribunal finds this claim to be so far=-fetched as to to be fanciful. It is also not reconcilable given she provided statements about her experiences with discrimination as a Faili Kurd.
Later in the hearing, the applicant attempted to reconcile her earlier testimony arguing that she used a Farsi or Persian interpreter for no particular reason and insisted that she is Kurdish and believes she is Kurdish. This was followed by a peculiar outburst that she hated everything about being Kurdish ethnicity and she hated using the language. The Tribunal enquired if that was the truth then why did the applicant marry a Faili Kurd and that it would be expected she would speak to him in their shared language. She claimed she did not know how to prove to the Tribunal about her ethnicity as Kurdish. The Tribunal suggested she provide a letter from a community member.
It is extraordinarily lacking in credibility that the applicant would fancifully claim to have discovered her ethnicity only after arriving in Australia, despite claiming to have lived through much privation based on the same ethnicity in numerous statements. It is even more extraordinary she would declare her deep contempt for her own claimed culture even though it was principally the reason she had been granted a permanent residency in Australia.
The representative of the applicant had argued the applicant’s demeanour and oral evidence was affected by the anxiety arising from the environment in which she provided evidence, the significant of the outcome and past trauma. The Tribunal does not accept this. The applicant ineptly provided oral evidence which was not mutually supportive because she had long set out to deceive Australian decision makers over a long period of time in order to gain and maintain a migration outcome for her and her family.
In the post hearing submission, the applicant provided low quality copies (with translations) of temporary residency cards for his deceased brother and his mother. Noting that the applicant admits that fraudulent documents are obtainable in Iran and in the context of the earlier testimony that his family did not have any at the scheduled hearing, the Tribunal places no weight on these documents as being credible documentary evidence that the applicant or any of these family members were not stateless at any time in the past.
Furthermore, there was no evidence of the applicant being recognised by a third party or a community organisation to vouch for him being a Faili Kurd or for being a member of the wider Kurdish community in Australia. This was despite having the opportunity to do so in a post-hearing submission or at any time since the issuing of the NOICC. This further invited credibility concerns about correct information not being provided at the time of alleged non‑compliance.
The credibility concerns about the applicant’s claimed ethnicity and statelessness are so deep that that they do not just raise a single doubt or even a few suspicions. The available evidence and the applicant’s otherwise fanciful and inconsistent responses have invited multiple reasons, when cumulatively considered, to reasonably assess that the applicant belonged to a family of Iranian citizens, that she was an Iranian citizen since birth and that they did not share any Kurdish, let along Faili Kurdish ethnic heritage.
Based on these cumulative adverse credibility concerns, and not least the information raised in the section 107 letter with the applicant, the Tribunal finds that the applicant has not been a reliable or credible witness of truth regarding his ethnicity as Faili Kurdish or even as Kurdish and her citizenship status as stateless usually residing in the Islamic Republic of Iran at the time of his lodgement of a Class XA Subclass 866 protection visa in 2011 which was later granted in 2012.
In short, the applicant was non-compliant with section 101 because the information he provided at the time of the lodgement of her protection visa was not only incorrect, but a deliberate contrivance.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with section 101 by the applicant in the way described in the section107 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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the 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
·     any contribution made by the holder to the community.
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 applicant responded to the NOICC. In this response, she continued to maintain that she was stateless, and that if her visa were cancelled it would have serious consequences for her, including being stripped of her Australian residence and the possibility of indefinite detainment. She stated she does not have any Iranian documentation and that, as a Faili Kurd, she does not have a return to return to Iran or any other country. She stated if she were forced to return to Iran, she would face a real risk of harm as outlined in her Protection claims. Further, that her husband is extremely unwell, unable to work or care for their two children, [Age 1] and [Age 2] years old, who would also face hardship as they cannot be left behind in Australia or taken to Iran.
the correct information
In this matter, there was considerable incorrect information provided to the Department by the review applicant at the time of application, as outlined above in the Tribunal’s adverse credibility findings. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled.
the content of the genuine document (if any)
This case involves the applicant having provided incorrect answers on her visa application. Therefore this factor is not relevant in this case and I give it no weight.
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
In this matter, the grant of the visa to the review applicant was based wholly on incorrect information about the applicant’s ethnicity and statelessness. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled
the circumstances in which the non-compliance occurred
When the applicant applied for a protection visa in 2011, she left the Islamic Republic of Iran as her country of origin and nationality at a time of some political turmoil and economic downturn. This includes the 2008/09 green movement protests and subsequent crackdown against dissenters by Iranian authorities. The Islamic Republic was and remains ruled by a largely unaccountable government which has a shocking human rights record, deeply resistant to international criticism. Income and wealth inequality was and remains pronounced; while the country has seen the growth of a consumerist culture since the early 2010s, reflected in increased consumption of high-end luxury items, the cost of living for ordinary Iranians has steadily increased over the last decade. An estimated 40 per cent of Iranians live below the World Bank defined moderate poverty line of less than US$3.10 per day.
The Tribunal does not accept the applicant is either stateless or is ethnically Kurdish or that she belongs to a religious minority subject to any systematic and discriminatory persecution. There is no credible evidence to suggest the applicant was involved in any political protests or was a person of interest to the authorities for any reasons at the time of non-compliance.
Nonetheless, the applicant does appear to have lodged her protection visa application on the basis that Iran’s economic deterioration offered him few employment and other material opportunities. In this regard the Tribunal places some amount of weight in which the non‑compliance occurred in favour of having this visa not remaining cancelled.
the present circumstances of the visa holder

The Tribunal does not accept the applicant’s present circumstances include ever being stateless or a Faili Kurd. Indeed the Tribunal found it to be a contrivance. Accordingly it places no weight on this factor in favour of the applicant’s visa being cancelled.
The applicant attempted to advance that she had had been attending Christian churches since May 219; that her [child] attends church for the last two years; and that the applicant is a practicing and baptised Christian. On Tribunal’s file is a baptism certificate dated [December] 2019 – after the scheduled hearing. The applicant claims she fears returning to Iran based on this apostasy from Islam to Christianity.
However the Tribunal does not accept this claim and places no credible significance on the applicant providing a baptism certificate as evidence of a genuine conversion. In the context of the applicant’s contrivances about her ethnicity and statelessness, the applicant invited the Tribunal to conclude the late date of the baptism certificate and the lack of any meaningful advancement of this apostasy claim during the hearing as indicating a lack of overall evidence of any conversion to Christianity. Indeed the applicant said in the hearing that ‘I just want to stay that I could change my religion to Christianity to Islam’ indicating that the applicant considered such claims as a means to augment her visa not being cancelled. The Tribunal does not accept the applicant’s contrived claims to be an apostate from Islam to any other religion to be a credible part of her present circumstances and according it places no weight on this in her favour.
The applicant first arrived in Australia on 14 December 2011 as an irregular maritime arrival. Since being granted a protection visa on 19 July 2012, she has resided in the community for around eight years. Her immediate family includes her husband and two [children], [Child 1] and [Child 2]. [Child 2] left Iran when [s/he] was [age] old, while [Child 2] was born in Australia and is an Australian citizen. The applicant claimed that they did not have disabilities. Her husband, [Mr H], it was claimed, was also Faili Kurdish and that he has post-traumatic stress disorder and suffers debilitating migraines. Submitted to the Tribunal are a number of medical documents indicating the applicant’s husband takes medication for his mental health conditions and that his daily functioning is compromised by physical and mental health symptoms. The applicant added that she and her husband also have a [amount] dollar mortgage.
It is argued that the [children] are young, vulnerable and rely on the applicant for emotional and material support, especially in the context of her husband’s health conditions. During the hearing, the applicant provided oral evidence of her intention to all her children to remain in Australia if she had to depart, noting they had not experienced life in Iran. It is relatedly argued that the impact on the children this visa remaining cancelled will significantly suffer if they remain in the sole care of their father.
With particular emphasis on the applicant’s maternal and spousal care responsibilities, the Tribunal finds that those factors in her current situation, when considered cumulatively, do amount to being compelling and compassionate reasons in favour not having her visa remain cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
While the applicant has maintained that she has continued to provide correct information to the Department and the Tribunal, including in relation to her identity as a stateless Faili Kurd, the Tribunal has not accepted this. At no time did applicant seek to correct the false information. Indeed the Tribunal notes the applicant’s continue to wilfully advance further contrivances, fraudulent documents and submit declarations with false statements to augment her falsehoods since the time of non-compliance and/or not have her visa remain cancelled. As the applicant has maintained these contrivances, the Tribunal places considerable weight on this factor in favour of the visa remaining cancelled.
any other instances of non-compliance by the visa holder known to the Minister
According to the Department, there are no further instances of non-compliance by the visa holder. The Tribunal places no weight on this factor in favour of the visa remaining cancelled.
the time that has elapsed since the non-compliance
The non-compliance occurred when the visa holder lodged her Class XA Subclass 866 protection visa application on 2011. It is now 2020. This is a considerable amount of time.
Therefore, this factor should be given significant weight in favour of the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law by the applicant and the Tribunal, therefore, gives this factor no weight towards the visa being cancelled.
any contribution made by the holder to the community
The applicant has largely relied on Centrelink benefits since her arrival. Although she is completing a [Qualification] in [Subject] care, she has not worked in any related sector. The applicant claimed to have volunteered for [an Organisation] and as a school at [Suburb]. The Tribunal accepts the applicant makes a small but meaningful contribution to society. The Tribunal places a negligible amount of weight on this factor in favour of the visa not remaining cancelled.
The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.
Discretionary considerations
The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.
whether there would be consequential cancellations of other persons’ visas under s.140
There are no other persons whose visas may be cancelled as a consequence of the applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Should the applicant’s subclass 155 visa remain cancelled, she would not be eligible to apply for another visa in Australia and face the strong possibility of being detained and then removed from Australia. She also faces a more remote risk of indefinite detention. Should the applicant be returned to Iran, it would be extremely difficult for her children to maintain a personal relationship with her. It is open to him to apply for an offshore partner visa but with no guarantee of success. The Tribunal places considerable weight on these factors in her favour.
Refoulement considerations
Refugees Convention and complementary protection provisions
As outlined above, the Tribunal does not accept the applicant’s ethnicity to be Kurdish or Faili Kurdish. Neither has she advanced to have been politically active in the past or to be a person of interest to the authorities based on her political opinion. Nor does the Tribunal accept the applicant was stateless at the time of application or that the applicant was not an Iranian citizen. It does not accept she is an apostate from Shia Islam or a Christian convert. During the hearing, the applicant did not advance she would express any anti-government political opinion into the future.
The applicant also argued that she will face a real chance of serious harm as a woman. The Tribunal accepts that there is considerable discrimination towards woman in Iran, both officially and from society more generally. Nonetheless, women are able to meaningfully participate in education and employment, albeit not without gender-based barriers. For this reason, the Tribunal does not accept the degree of harm from this discrimination will amount to being serious harm. Accordingly the Tribunal finds that the applicant has a real chance of harm, that will be systematic and discriminatory, but it will not amount to being a real chance of serious harm for a Convention reason, if the applicant were to return to Iran.
The applicant further argued that she will face harm as a failed asylum seeker. The Tribunal accepts there is a chance of serious harm to the applicant as a failed asylum seeker and because her brother had been imprisoned when was deported from Indonesia about ten years ago. However, the Tribunal does not accept she has never been a person of interest to the authorities in the past. Nor does the Tribunal accept the applicant is a credible person when advancing claims for protection. While the applicant has a real chance of being questioned on arrival, the Tribunal does not accept this will lead to a real chance of arbitrary arrest, forceful interrogation, serious physical maltreatment, medium to long term detention or any other serious harm. Accordingly the chances of serious harm as a failed asylum seeker or forced returned or any other related Convention reasons is assessed to be remote and insubstantial and do not amount to being a real chance of serious harm, if she were to returned to Iran into the reasonably foreseeable future.
The Tribunal finds the applicant has a real chance of being released into the community and be subject to surveillance and monitoring. However, this surveillance will not lead to a real chance of serious harm as he will not long remain a person of interest to the authorities. Moreover he will have the same access to health services, including mental health services, as other Iranian citizens as he is not stateless. While she will face challenges in finding work and resettling in Iran, she will not be returning to her family and she will not face a real chance of serious harm for a Convention reasons arising from her economic circumstances.
Having considered the applicant’s Convention claims both individually and cumulatively, the Tribunal accordingly finds the applicant does not have a well-founded fear of persecution from any Convention reasons if he were to return to Iran.
Noting the Tribunal’s adverse credibility findings in the applicant facing a real chance of serious harm for a Convention reasons, the Tribunal also finds there are no substantial reasons to believe the applicant will face a real risk of significant harm arising from her religion, political opinion, ethnicity, nationality or membership of a particular social group.
The Tribunal also finds the risk of significant harm arising from being a forced returnee or arising from her economic circumstances and mental health symptoms to be remote and not to be a real risk, as a necessary and foreseeable consequence of the review applicant being removed from Australia to Iran.
The Tribunal also finds the real risk of harm arising from being as a woman. However it does not accept the harm will amount to any of the significant harm listed in section 36(2A) to, as a necessary and foreseeable consequence of this review applicant being removed from Australia to Iran.
Having considered the applicant’s accepted circumstances, both individually and cumulatively, the Tribunal accordingly finds the applicant does not satisfy the Act’s complementary protection provision as required by s.36(2)(aa).
The Tribunal places very little weight in Australia’s obligations of non-refoulement in favour of the review applicant.
Rights of the Child
One of these principles is that officers consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. The PAM states that “if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children”.
One of her children affected in this matter is an Australian citizen.
Based on the available evidence before it, the Tribunal can confidently assess that it is in the best interests of the applicant’s biological children not to have this visa cancelled. Whilst they may be able to contact each other online, this is not an adequate substitute for physical contact and interaction. whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. The permanent, or at least, long term separation of the applicant from her children would have serious and long-lasting detrimental effects on her children. In line with the PAM’s requirements to treat the best interests of the children as a primary consideration, the Tribunal places significant weight in favour of not cancelling the applicant’s visa.
any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
When considering the applicant’s overall situation, the Tribunal, however, does concede that there is a degree of emotional, psychological and financial hardship that will be caused to the applicant if her visa remains cancelled. The Tribunal is not least concerned with a high degree of hardship to be faced the applicant’s partner and their children in the context of her partner’s mental health challenges and the applicant’s separation from her children. In this regard, the Tribunal places a significant amount of weight on the degree of hardship to be faced by the applicant and other family members in favour of this visa not remaining cancelled.
Conclusions
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.
Carefully weighing the information before the Tribunal has been difficult in this matter. The non-compliance that led to the grounds for this visa being cancelled by the Department was very serious and significant.
During this review, the applicant continued to clumsily maintain her contrivances that the non-compliance had not occurred. Her disregard for the integrity of Australia’s migration and humanitarian programmes strongly mitigated against her.
Nonetheless, on assessing the factors and with particular emphasis on the wellbeing of the applicant’s family members and the significant amount of time since the non-compliance, the Tribunal finds that the factors against having this visa remain cancelled outweigh those otherwise serious countervailing factors in favour of the visa remaining cancelled.
Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
The applicant should be aware that the Tribunal has reached this decision only marginally in favour of him and her family members.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Brendan Darcy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 829

16 March 2020

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