1918440 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of an applicant. The dispute arose from the applicant providing incorrect information regarding her ethnicity and citizenship, claiming to be a Faili Kurd and stateless, when she was in fact a non-Kurdish Iranian citizen. The applicant also made a contrived claim of conversion to Christianity. The Tribunal considered the best interests of the applicant's two young children, one of whom is an Australian citizen.

The primary legal issues before the Tribunal were whether the applicant had established grounds for protection under the Refugees Convention or complementary protection provisions, and whether the cancellation of her visa was appropriate given the circumstances, including the potential impact on her children. Specifically, the Tribunal had to determine if the applicant faced a real chance of serious harm if returned to Iran due to her ethnicity, political opinion, religion, or as a woman or failed asylum seeker.

The Tribunal found that the applicant had not established that she was Kurdish or Faili Kurdish, nor that she had been politically active or was a person of interest to the authorities. It also did not accept her claims of statelessness or conversion to Christianity. While acknowledging discrimination against women in Iran, the Tribunal concluded it did not amount to serious harm. Similarly, the Tribunal found the risk of serious harm as a failed asylum seeker, or due to her brother's past imprisonment, to be remote and insubstantial. However, the Tribunal placed considerable weight on the fact that cancellation would prevent the applicant from applying for another visa in Australia, leading to a strong possibility of detention and removal, and would make it extremely difficult for her children to maintain a relationship with her.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa, substituting a decision not to cancel it. The Tribunal noted that this decision was reached marginally in favour of the applicant and her family.