1928196 (Refugee)

[2021] AATA 3566

1928196 (Refugee) [2021] AATA 3566 (20 July 2021)

`

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928196

COUNTRY OF REFERENCE:                   Stateless/Iran

MEMBER:Michael Hawkins AM

DATE:20 July 2021

PLACE OF DECISION:  Brisbane

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 20 July 2021 at 9:03pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless/Iran – ground for cancellation – incorrect information in visa application – citizenship status – family composition – claimed adverse profile – undocumented, stateless Faili Kurd – consideration of discretion – deliberate and calculated for the purposes of enhancing protection claims – non-refoulement obligations – Faili Kurd who is a citizen of Iran – atheism – treatment of returnees – rights of the child and family unity obligations – best interests of the children – differences in lifestyle expectancy – compulsory military service – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 46, 46A, 48A, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

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 dependant.

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 delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) of the Act by stating that he is an undocumented, stateless Faili Kurd. The delegate found that the applicant is not an undocumented, stateless Faili Kurd; that the applicant obtained Iranian citizenship automatically at birth through his Iranian citizen father; and that he was an Iranian citizen at the time he submitted his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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 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 12 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the first applicant’s wife, who is also the other applicants’ mother. The hearing was, by written consent, jointly held with the first applicant’s wife case, as the delegate’s decision in both cases was made on the basis of similar information. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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.

8. 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. Extracts of the Act relevant to this case are attached to this decision.

   What are the issues before the Tribunal?

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.

10. Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?

11. Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). 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 applicant has not complied with one or more of the relevant provisions.

12. 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.

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

13. What were the particulars of the non-compliance set out in the notice?

14. On 4 April 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with section 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:

    Evidence of grounds for cancellation

    [In] July 2010 you arrived in Australia at Christmas Island as an illegal maritime arrival (IMA) with your wife, [Ms A] (DOB: [date]) and your two sons, [Child B] (DOB: [date]) and [Child C] (DOB: [date]). Upon arrival you claimed protection from Australia.

    On 3 September 2010 you completed an application for a Protection (subclass 866) visa, using  Forms 8668, 866C and 866D with the assistance of your Migration Agent.

    On Form 866 'Application for a Protection (Class XA) visa' you provided the following answer (in italics):

    Question 11. Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?
    'Yes - Please refer to attachment'

    An attachment entitled;  ' Details of the applicant's family" was supplied with your application forms; the following family members were included:

Family Name	Given Name	Place and country of birth	Citizenship	Relationship to applicant
[Surname 1]	[Given name 1]	Baghdad, IRAQ	IRAQ	Father
[Surname 2]	[Given name 2]	Baghdad, IRAQ	IRAQ	Mother
[Surname 1]	[Brother D]	-	-	Brother

On Form 866C 'Application for an applicant who wishes to submit their own claims to be a refugee' you provided the following answers (in italics):

Question 8. Place of Birth:
'Baghdad, IRAQ'

Question 12. Ethnic group you belong to:
'Faili Kurd'

Question 19. Your citizenship at birth:
'Stateless'
Question 23. If you are stateless, how, when and why did you lose your citizenship?
'Stateless by birth'

Question 41. I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)
'Iran and Iraq'

In response to questions 42 to 46 you stated 'Please refer to my Statutory Declaration' which you completed on 3 September 201O with the assistance of a Farsi interpreter. The relevant passages from your statutory declaration have been transcribed beneath the corresponding question.

In the beginning of that statement you stated the following (in part):
' I am stateless'
'I do not have a right to Iranian citizenship nor citizenship of another country' 'I was born in Baghdad IRAQ'
'I am Kurdish Faily .. .'

Question 42. Why did you leave that country?
'As stateless we had no documents and we had problems with Iranian Authorities, and other agencies. I left Iran because I had no citizenship, I was stateless. My 2 sons had no documents and were not able to go to school to get education. I was not able to get proper work, to assist my family. I had a white card but is was no use to me. Because of the lack of proper documentation was not move to travel interstate in Iran. You need documentation to do everything from work, education and health. If you do not have documentation you cannot exist. You are no body. I had problems with Basej many times I was stopped and body searched with no reason ... .I left Iran because was future for me and my family. My family got deported from Baghdad 30 years ago and we went to Elam IRAN, after 6-7 months we moved to Tehran.

Question 43. What do you fear may happen to you if you go back to that country?
'If I return back to Iran I will be facing death penalty'
'The way I left the country was illegal with fake passport, it I try to return back they will execute me. If I return to IRAN the Authorities will see me as a foreign spy and they will ask me why I left Iran with a false passport because as a stateless I had no passport'

Question 44. Who do you think may harm/mistreat you if you go back?
'I again re-iterate my personal fears from my and my family's safety that if I return there to Iran our lives will clearly end with my death.

Question 45. Why do you think this will happen to you if you go back?
The way I left the country was illegal with fake passport, if I try to return back they will execute me If I return to Iran the authorities will see me as a foreign spy and they will ask me why I left Iran with a false passport because a stateless I had no passport.'

Question 46. Do you think the authorities of that country can and will protect you if you go back? If not why not?
' No, as stateless it is impossible to live a normal life.'

Question 50. Did you have difficulties obtaining a travel document (such as a passport) in your home country?
'Yes -Stateless Faili Kurds are not recognised by the Iranian government and as such are not entitled to formal travel documents'

On 19 January 2011 the Refugee Status Assessment (RSA) determined that you, your wife and sons were refugees, as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

This assessment was based upon the information that you and your wife provided during interviews on 21 July 2010 and 6 September 2010. During these interviews you made the following claims:

·You were stripped of your Iraqi citizenship under the Saddam Hussein regime and expelled from Iraq in 1980. You have since resided in Iran.

·You do not have Iraqi citizenship and have no legal right to enter or reside in either Iraq or Iran.

·You are an undocumented, stateless Faili Kurd.

·You fear returning to Iran for fear of being killed or seriously harmed because you are a stateless Faili Kurd who departed Iran illegally.

·You fear being killed or seriously harmed if you returned to Iran.

·You and your family were discriminated against in accessing basic essential public services such as health and hospital care, education, insurance and housing.

·You undertook electrical labouring jobs, however obtaining employment was extremely difficult and wages were extremely low for Faili Kurds and that you were unable to provide for your family.

·You were in constant fear of being identified, searched and harmed by the Basij and/or other government agencies.

·You and your family were often verbally abused and discriminated against by the authorities nd Iranian citizens because you are stateless Faili Kurds.

On 30 April 2011 the Minister lifted the bar and you lodged your Protection visa application, including the application forms that you had completed on 3 September 2010.

On 4 May 2011 based on the above information you provided, as well as meeting other relevant criteria you were granted a Protection (subclass 866) visa. Additionally, your wife and sons were granted Protection (subclass 866) visas as dependent visa holders.

On 24 June 2015 you lodged an application for Australian citizenship. As part of that application process you, your wife, [Ms A] and your eldest son, [Child B] were required to undergo an Identity Assessment.

On 17 February 2017 you, your wife and your eldest son where simultaneously interviewed by Identity Officers. Information was disclosed by you and your family in the interview which has brought into question your claims that you are an undocumented and stateless Faili Kurd, and as such you appear to have not complied with s101(b) of the act.

Since arriving in Australia you had consistently maintained that you only have one brother, [Brother D], whom you stated resides in [Country 1]. During the interview you declared your siblings as follows:

Name	Relationship	Location
[Brother E]	Brother	Iran
[Brother D]	Brother	[Country 1]
[Brother F]	Brother	Iran
[Sister G]	Sister	Iran
[Sister H]	Sister	Iran

When you were questioned why you had neglected to disclose your other siblings you stated that you were 'trying to keep things simple'.

You stated that your brother, [Brother F] is an Iranian citizen and most likely acquired his citizenship through marriage. However country information states a non-Iranian man cannot acquire Iranian citizenship through marrying an Iranian woman. Iranian citizenship is acquired through paternal descent.¹ This suggests that your brother was likely entitled to Iranian citizenship on his own merits, passed through his father. As such, taking into account this information and family information you disclosed, it would appear that you also hold or are entitled to Iranian citizenship.

You further stated during the interview that all of your siblings 'must have their Iranian citizenship by now' and are living 'a normal life' in Tehran.

It appears highly unlikely that you failed to declare all of your siblings who are Iranian citizens to 'keep things simple', rather it appears you knowingly provided false information regarding your family composition to conceal your own citizenship status in Iran and increase the likelihood of being granted a Protection visa.

During the identity interview you maintained that you departed Tehran Imam Khomeini International Airport using a false Iranian passport that the people smuggler had arranged for you. However you, your wife and son provided contrasting accounts regarding your departure from Iran where you have stated that the person who made your passport, '[same name as Brother F]' drove you to the airport and facilitated your departure through security. Whereas your wife and son indicated that no one named '[same name as Brother F]' travelled with you to the airport.

These differing accounts bring into question the legitimacy of your claim that you departed Iran using a false passport. Furthermore according to official reports it would be extremely difficult or impossible for a stateless Faili Kurd to depart Iran through any of the country's airports². Due to sophisticated security features, computerised cross-checking and multiple layers of physical security and document checking, numerous sources report that it would be difficult or impossible to pass through Imam Khomeini International Airport with a fraudulent passport³.

Given this information it would appear that it is highly likely that you and your family departed Iran using your genuine passports.

During your interview you initially stated that you and your family did not hold Iraqi citizenship when you were living in Iraq. However, upon further questioning you retracted this statement. You then stated that you were citizens of Iraq and that you had an Iraqi birth certificate, which has since been lost. These disclosures suggest you were likely a citizen of Iraq by birth prior to your family's expulsion from Iraq. According to Article 18 of Iraqi Nationality Law, any Iraqi who was denaturalised on political, religious, racist or sectarian grounds, shall have the right to restore their Iraqi nationality, subject to an application or a submission.4 In view of the above information, it appears you may be eligible to Iraqi citizenship.

From the information obtained from the identity interview it appears that you are an Iranian citizen and not stateless as you maintained in your Protection visa application. There is also indication that you are eligible to acquire Iraqi citizenship, based on information you provided at the interview. Given that being stateless formed the basis of your Protection claims it appears that you have provided incorrect answers/information in your protection visa application regarding your adverse ethnic profile and fears of death upon returning to Iran or Iraq on the basis of your statelessness.

Therefore it appears you have not complied with s101(b) of the Migration Act 1958 at Questions 41, 42, 43, 44, 45 and 46 in Form 866C of your Protection visa application as follows:

·In response to question 41 of Form 866C, you stated you were seeking protection in Australia so that you did not have to go back to 'Iran and Iraq.' I consider this is incorrect because on 17 February 2017, you informed Department officers at interview of family composition information that had previously not been disclosed, specifically that you had five siblings, four of whom live in Iran, and that they all likely hold Iranian citizenship. Based on country information regarding how Iranian citizenship is acquired through paternal descent, it appears that you likely are a citizen of Iran and were so at the time of departing from Iran, therefore would have had the legal right to reside in Iran and likely did not hold the adverse profile claimed in your application for Protection visa.

·In response to question 42 of Form 866C, which asks you why you left Iran and Iraq, you stated that as an undocumented and stateless Faili Kurd, you and your family were unable to access education and medical services, nor obtain proper employment. You and your wife were issued white cards, but they were of no use and you were often questioned and sometimes threatened by the Basij. You also stated your family was forcefully removed from Iraq 30 years prior and relocated to Iran. I consider this answer is incorrect because you informed Department officers at an interview on 17 February 2017 of family composition information that had not previously been disclosed, specifically that you in fact have five siblings, four of whom live in Iran, and that they all likely hold Iranian citizenship. Based on country information regarding how Iranian citizenship is acquired through paternal descent it appears that you likely are a citizen of Iran and were so at the time of your Protection visa application therefore would have had the legal right to reside in Iran and likely did not hold the adverse profile claimed. There is also indication that you may be eligible to acquire Iraqi citizenship, based on information you provided at the interview, stating that you and your family were citizens of Iraq and that you had an Iraqi birth certificate.

·In response to question 43 of Form 866C, you stated that if you return to Iran you would face execution as you would be seen by the Iranian authorities as a foreign spy because you departed from Iran using a false passport. I consider this answer is incorrect because it is unlikely you departed from Iran using a false passport as an undocumented and stateless person because information provided by yourself at interview suggests you are likely a citizen of Iran and were so at the time you departed Iran. This is based on immediate family composition information you disclosed regarding your siblings, including that most of them reside in Iran and that they all likely hold Iranian citizenship. Taking into account country information regarding how Iranian citizenship is acquired through paternal descent, this suggests that you are also a citizen of Iran.

·In response to question 44 of Form 866C, you stated that you held fears for yours and your family 's safety because "our lives will clearly end with my death." I consider this answer is incorrect because based on information you disclosed at interview on 17 February 2017, it appears you were not stateless or undocumented as claimed in your application for Protection visa and were likely a citizen of Iran at the time you departed Iran. Therefore it appears you did not hold the adverse profile as claimed and likely did not hold a real fear of serious harm or death upon return to Iran or Iraq.

·In response to question 45 of Form 866C, you stated that you would face execution by the Iranian authorities because you left Iran using a false passport and if you made an attempt to return, you would be considered a foreign spy. You would also be subject to questioning as to why you left Iran with a false passport as a stateless person. I consider this answer to be incorrect because it appears, based on information disclosed by yourself to the Department at interview, that you are not stateless as claimed in your Protection visa application and, given family composition information disclosed, you are likely a citizen of Iran and rather departed from Iran using a genuine Iranian passport.

·In response to question 46 of Form 866C, you stated that the authorities of Iran would not be able to protect you upon return because as a stateless person it is impossible for you to have a normal life. I consider this answer is incorrect because it appears you are likely a citizen of Iran. This is based on family composition information you provided during your interview specifically that you had five siblings, four of whom live in Iran. You further stated that all of your siblings 'must have their Iranian citizenship by now' and are living 'a normal life' in Tehran. You also stated that your brother, [Brother F] (who was disclosed as your only sibling in your Protection visa application) is an Iranian citizen. As Iranian citizenship is acquired through paternal descent, this suggests that you also hold Iranian citizenship.

Additionally it also appears that you have not complied with s101(b) of the Migration Act 1958 at Question 11 in Form 866B of your Protection visa application, by failing to disclose the details of all of your siblings, including two sisters and two brothers, who you stated at the interview on 17 February 2017 all reside in Iran and likely are citizens of Iran.

If you have not complied with section 101(b) of the Migration Act 1958, your Protection (subclass 866) visa is liable for cancellation consideration.

1. The delegate notes in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to question 11 in Form 866B and questions 41, 42, 43, 44, 45 and 46 in Form 866C of his application for a protection visa.

2. If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided, his visa may be cancelled. The NOICC notes that by failing to comply with section 101(b) of the Act, the applicants’ Class XA, Subclass 866 (Protection) visa is liable for cancellation under s.109 of the Act.

   Response to the NOICC

3. The applicant and his wife jointly responded to the NOICC through their representative in May 2019. The delegate summarised the applicant’s response as follows:

   In his statutory declaration, dated 8 May 2019, the visa holder states the following:

   ·“…First of all, the real purpose of the interview was not explained to me by anyone. In the room, I was interrogated about many things. It was not a simple questioning or interview, it was really like an interrogation.

   ·I felt that I was not treated with respect, officer’s tone of voice were intimidating to me; I was bombarded with questions and was confused.

   ·I believe the interviewing officers also influenced my responses by the way they asked the questions, sometimes asking double negative questions which confused me even more because I was communicating through an interpreter.

   ·The interview lasted over three hours and I was asked many questions, some things I could not remember and I was under a lot of pressure to provide a response. At times I just answered the questions without thinking or understanding them properly because I was tired and stressed and wanted the interview to be over.

   ·Prior to my arrival in Australia, we were advised by the people smuggler to keep things simple and not disclose all family members and we followed his instructions out of fear. We repeatedly heard from others that we could not change any of the information we have provided upon arrival or else would be deported so again out of fear, we did not correct this information.

   ·During the identity assessment interview, when I was asked about the citizenship of my siblings, I truly did not know the answer and my responses were only guesses. As I said I just wanted the interview to be over as quickly as possible.

   ·I am not in regular contact with my siblings. I talk to them probably not more than once a year and at the time of the interview I had not spoken to them for a long time.

   ·In the interview when I was asked about my brother [Brother F]’s citizenship status, I only guessed that [Brother F] was an Iranian citizen. The last time I spoke with him many months earlier, I knew he was trying to register his Iranian citizenship and I only assumed that with his efforts and the amount of time that had passed, he had been successful in acquiring Iranian citizenship through his wife who was an Iranian citizen.

   ·I later checked with him and he advised that although he had been trying very hard, he had not been successful in obtaining Iranian citizenship through his wife because the law had not allowed it.

   ·[Brother F] told me that he still had a lot of difficulty with his work and had to get referrals for work through an Iranian citizen.

   ·This is the case with the rest of my siblings. Both my sisters are married to Faili Kurds and have not been able to obtain Iranian citizenship.

   ·I wish to confirm once more that the only reason I failed to declare all of my siblings is the reason I have stated above. There is no other reason. My siblings are not Iranian citizens and I have not knowingly provided false information regarding my family composition to conceal my own citizenship status in Iran and increase the likelihood of being granted a Protection visa.

   ·Having said all the above reason, I still regret that I did provide false information about my family composition. I have regretted over the last few years and I still do, but I cannot change the past. I can only build the future. Please also remember that when I first arrived in Australia, I had come from a country that the authorities could not be trusted. We had to conceal some truth to be safe and it was only out of fear that I trusted the smugglers at that time but regardless of that I do regret it.

   ·The NOICC also refers to conflicting information provided by my wife and son and me in relation to our departure from Iran. The only reason for this conflict is that when we were leaving Iran, I did not want my wife and children to know the details about [Brother F] and about the people smuggler. I was afraid that if they knew, they might be nervous and show some reaction at the airport or say something that would expose the whole thing. Only I knew the arrangements, as far as they were concerned, [Brother F] was just a strange driver, which was all they needed to know.

   ·The NOICC also refers to the possibility that I may be eligible to Iraqi citizenship because I have provided conflicting information during the interview. Again, the only reason that I may have provided conflicting information would have been because I was very stressed and tired at that stage and did not understand the questions properly. Or perhaps I had misunderstood the question through the interpreter and then clarified my answer later. I am waiting to receive a copy of the audio recording of that interview and when I listen to it, I will be able to explain where the confusion has taken place, at the moment I cannot comment on what has taken place but I do confidently know that I did not and do not have Iraqi citizenship.”

4. The applicant submitted the following reasons why the visa should not be cancelled (as summarised by the delegate):

   In his statutory declaration, dated 8 May 2019, the visa holder stated the following:

   ·“I do not want my visa cancelled because my family and I have lived in Australia for about 10 years now and consider ourselves part of this wonderful community. My children have grown up here and have gone to school. Although we do not have yet Australian citizenship papers, we, especially our children consider ourselves Australians. This is our home and our country.

   ·Since I have lived in Australia, I have learnt English and have worked very hard to integrate into the community and make positive changes as much as I can.

   ·I have completed many hours of voluntary work in the community over the years. I have also worked for the government and have contributed to the economy by paying taxes.

   ·I have never committed a crime in Australia (or anywhere else in the world) and will not do so in the future.

   ·I have never breached any of my visa conditions whilst in Australia and will not do so in the future.

   ·I do not want my visa cancelled and I cannot go back to Iran, it is not my country and I am not welcomed there.

   ·We have been away from Iran for 10 years now. My family and I have established our lives here. We have a home and a job. In Iran I will not be able to support my family because I have nothing. We are hearing in the news that many people have lost their jobs and there is a crisis with housing, employment and even food because of the sanctions against Iran.

   ·It is suggested that I may have Iraqi citizenship. As I said this suggestion is wrong but in any case, I would not be able to live in Iraq for the above reasons as well and Iraq would be even worse because no one in our family speaks Arabic or is familiar with the Arabic culture.

   ·If we are returned to Iran or Iraq, we would not get any support from those governments and we would have to start our lives from the scratch. We would be discriminated against and persecuted.

   ·I believe that considering my current circumstances, under the 1951 Refugees Convention and the 1967 Protocol Relating to the Status of Refugees, Australia still has protection obligations towards my son and me and I do not believe that my protection visa should be cancelled under section 109 of the Migration Act.”

   ·The visa holder’s sons, [Child C] and [Child B], were children when they travelled to Australia. They did not have a choice in coming to Australia. They have lived their formative years and received their education in Australia and now consider themselves Australian. They feel no connection to Iran and its culture or people.

5. The applicant had submitted the following documents:

   ·Queensland driver’s licence for [the applicant] (DOB: [Date 1]), Licence No. [number];

   ·Queensland driver’s licence for [Ms A] (DOB: [date]), Licence No. [number];

   ·Queensland driver’s licence for [Child B] (DOB: [date]), Licence No. [number];

   ·Letter of support from [Ms J], dated 8 April 2019;

   ·Letter of support from [Ms K], Business Manager of [School 1], QLD, dated 23 April 2019;

   ·Reference letter for [Ms A], from [School 1], where she volunteered at the tuckshop, dated 5 August 2013;

   ·Income Tax Return Tax Estimate for [the applicant], for 2018;

   ·Statutory Declaration by [Child B], signed and dated 16 May 2019;

   ·Statutory Declaration by [Child C], signed and dated 16 May 2019; and

   ·Statutory Declaration by [Ms A], signed and dated 16 May 2019.

   Departmental decision to cancel the applicant’s visa under s.109 of the Act

6. The Department proceeded to cancel the applicants’ Class XA, Subclass 866 (Protection) visas in a decision made on 25 September 2019. The Department did not interview the applicants.

7. Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the first applicant insofar as the first applicant failed to give correct information regarding his identity and protection claims in Form 866B and Form 866C of his protection visa application. The Department made the following findings:

   ·     In his response to the Notice, the visa holder acknowledges that he did provide incorrect information to the Department in relation to his family composition in his application for Protection visa.

   ·     I do not accept the visa holder’s explanation that he did not understand the purpose of his interview and the questions he was asked. Upon listening to the interview recording, it was explained to the visa holder through an accredited Farsi interpreter the purpose of the interview. The interviewing officer also cautioned the visa holder that the provision of false or misleading information is a Commonwealth offence and will raise doubts about the credibility of any information he has provided previously. The visa holder was given the opportunity to respond to any concerns regarding the information he provided. The visa holder confirmed his understanding through the accredited Farsi interpreter, to whom he stated he had no objections or difficulty understanding.

   ·     I consider the visa holder did understand the nature of the interview by confirming his understanding at the beginning of the interview. I do not accept the visa holder provided the family information that contradicted the answers and information he provided in his application for Protection visa under duress or pressure as I find he understood his obligation to provide truthful answers, as per the cautions given by the interviewing officer.

   ·     The visa holder claims the information he provided in regards to his siblings’ citizenship status in Iran during the interview was based on assumptions he had made which he has since learned to be incorrect. I do not accept that the visa holder would volunteer such information to the Department if he was not certain of its accuracy.

   ·     I find the visa holder is claiming the interview was carried out in a manner that confused him and made him feel stressed as a way to explain or excuse the answers he provided. His wife, who was interviewed separately, also provided similar information to that of the visa holder. I find it highly unlikely that the visa holder and his wife would both provide the same purportedly incorrect information.

   ·     I find the information provided by the visa holder at his identity interview on 17 February 2017, specifically in relation to his family composition and status in Iran, his parents’ place of birth and his possible Iraqi citizenship, is the correct information. I find this because there is no reasonable explanation or motivation as to why he would have presented the information that differed from his Protection visa application. I also find that the same or similar information was provided by the visa holder’s wife in her separate identity interview, which further supports the finding of non-compliance.

   ·     In his response to the Notice, the visa holder claimed the people smugglers told him to provide limited information regarding his family for fear of being deported. I find this admission places the credibility of all other information and claims provided in his Protection visa application into doubt, which further supports the view that his claims of statelessness are also incorrect.

   ·     Prior to being issued the Notice, the visa holder never lodged a complaint or raised any concerns with the Department regarding the conduct of the interview in February 2017. I find he is only making such claims now as an attempt to discredit the information and answers he provided at the interview.

   Decision

   The visa holder was found to have engaged Australia’s international protection obligations on the basis of him being a stateless person of Faili Kurdish ethnicity. His wife also made similar claims of statelessness. In the absence of information to the contrary, these claims were accepted by the Department in good faith and a decision was made to grant the visa holder his Protection visa.

   Through later interactions between the visa holder and the Department, this information - which was material to the grant of his Protection visa – has been found to be incorrect.

   Upon being presented with the non-compliance, the visa holder has provided explanations for the variances in information he provided regarding his parents’ birthplace and his immediately family’s Iranian citizenship status. I find the visa holder’s explanations are not sufficient to satisfy me that it was the result of confusion or genuine misunderstandings.

   I find the visa holder knowingly disclosed incorrect information in his application for a Protection visa for the purpose of achieving a favourable immigration outcome. I find the visa holder fabricated his claims of being a stateless Faili Kurd and provided limited family information in order to avoid any possible scrutiny that could jeopardise the success of his visa application.

   I have given consideration to the visa holder and his sons’ present circumstances and the length of time they have resided in Australia. However, I find the significance of the visa holder’s misconduct, through the misuse of Australia’s refugee and humanitarian visa program far outweighs these considerations.

   In view of the findings and assessment above, I have decided to cancel [the applicant]’s Protection (subclass 866) visa.

   Statutory declaration from the first-named applicant, sworn on 5 July 2021

8. The applicant provided a statutory declaration, sworn on 5 July 2021.

   The incorrect information

9. The applicant states that he agrees that he provided some incorrect information in his protection visa application. He states that he agrees that he is an Iranian citizen and that he incorrectly advised the Department of Home Affairs that he is stateless.

10. The applicant claims he provided the incorrect information upon arrival in Australia out of fear. He claims that prior to his arrival, he was told by a smuggler and many others that if he and his family had their passports, they would be returned to Iran. He claims to have been advised to say that he and his family had no identity, education or employment in Iran. He claims to regret taking their advice.

11. The applicant claims that over the years, he has thought about telling the truth, but he has always been afraid. He claims that at the identity assessment interview, he very briefly considered telling the truth, but the interviewers were not welcoming. He claims he felt like he was being interrogated and he was fearful of being sent back to Iran.

1. The applicant claims that prior to the cancellation of his visa, he again contemplated to tell the truth, but fear was a strong preventative. He claims that he and his wife were afraid of the consequences so they did not disclose that they had identity documents in Iran in response to the visa cancellation notice.

2. The applicant states that he wishes to apologise to the Australian authorities for providing false information and that he is sorry for not coming forward with the truth earlier. He claims a heavy burden has been taken off his chest and he is now speaking with nothing to hide.

   Identity

3. The applicant claims his name is ‘[applicant name]’. He claims that when he was born, his first name was spelt ‘[variant of applicant’s given name]’, which is an Arabic name. He claims he changed his first name to the Persian version of his name, ‘[applicant given name]’ when he grew up. He claims this change of name is reflected on the last page of his birth certificate.

4. The applicant claims his correct date of birth is [Date 2]. He claims he is a Faili Kurd and he was born in Iran. He claims his father was born in Iraq, but he does not know where his mother was born.

   Why he left Iran

5. The applicant claims the real reason he left Iran was because he was sick and tired of being discriminated against for being a Kurd. He claims he did not have the same employment rights as others, and he was paid less and less frequently.

6. The applicant claims the other reason he left Iran was because he no longer wanted to follow Islam and he was afraid to stop practising Islam in Iran. He claims to have been born and raised as a Muslim. He claims he left Iran because he did not want his children to be forced to follow Islam as he was. He claims he wanted his children to grow up in a democratic country where they can freely express their opinion and believe what they want to believe.

   Why he believes his visa should not be cancelled

7. The applicant provided the following reasons why his visa should not be cancelled:

8. The applicant claims he and his family have lived in Australia for over 11 years and they consider themselves to be part of the Australian community.

9. The applicant claims the cancellation of their visas has caused his family significant hardship and his children have been prevented from continuing their studies.

10. The applicant claims his children were kids when they arrived in Australia. He claims they are now young men and Australia is their home. He claims they dislike Islam and they would not be able to survive in an Islamic country like Iran.

11. The applicant claims he and his family are good people of good character. He claims they have always abided by Australian laws and that they have never breached any Australian laws.

12. The applicant claims he has learned English, built a good life and supported his family in every way in Australia.

13. The applicant claims he has made a positive contribution to the Australian community. He claims that in 2014, he volunteered at [a charitable organisation] for about seven months and since then he has worked legally and paid taxes. He claims that in 2013 he started working at [School 1] and he has spent over $3,000 of his own money on buying equipment for the school.

14. The applicant claims that he is an atheist, even though he was born and raised a Muslim. He claims to dislike Islamic practices and the Iranian authorities. He claims to openly talk to people about his religious and political opinions and he does not want to have to pretend otherwise.

15. The applicant claims Australia is his home and that he will continue to make a difference and play a positive role in the Australian society.

16. The applicant claims he strongly believes that he and his family will be harmed because of their religious beliefs if their visas are cancelled and they are returned to Iran. He claims they will not get any support from their extended families in Iran, because they are against our religious beliefs and would not want to associate with us.

    Statutory declaration from the second-named applicant, sworn on 5 July 2021

17. The second-named applicant claims he arrived in Australia in 2010 when he was about [age] years old and started school in grade [level] in Australia. He claims his upbringing in Australia has defined him as a person. He claims to have made lifelong friends in Australia and that he has fully integrated into the culture. He claims to hold values similar to your average Aussie.

18. The second-named applicant claims he was recently told by his parents that he is an Iranian citizen. He claims that he, his brother and their representative encouraged his parents to come out with the truth about their Iranian citizenship status. He claims his parents were terrified that they would be returned to Iran if they disclosed to Australian authorities that they are Iranian citizens.

19. The second-named applicant claims that if he were returned to Iran, he would no longer be welcomed as a citizen and he would have trouble fitting in, mainly due to his lack of faith in God. He claims to have conversed many times with family and friends, especially his younger brother about the existence of God.

20. The second-named applicant claims that as he is an atheist, he would have to take great measures to conceal his beliefs and identity. He claims that if he was found to be an atheist, he would most likely face death as a punishment for apostasy and his lack of faith in God, as Iranian society expects everyone to follow the Islamic rules and Sharia law and no one is allowed to express opposing views. He states he understands that as Iranian authorities are religious, anyone who speaks against Islam would also be considered to be against the Iranian regime.

21. The second-named applicant claims to strongly resent Islam and that he disagrees with its instructions, particularly acts of violence in the name of God. He claims that he does not hide his religious views from anyone in Australia and Iran, because he is entitled to his opinion.

22. The second-named applicant claims he was planning to study business at university, but he is currently prevented from doing this as he is unable to afford the international student fees.

23. The second-named applicant claims that he attended the identity assessment interview in 2017. He claims he provided all of his answers truthfully, however he now knows that some of the answers he provided were incorrect and he regrets providing incorrect information to the Department. He claims one of his strong beliefs in life is honesty.

24. The second-named applicant claims his father made all of the arrangements for his family to leave Iran and he did not understand the paperwork back then as he was a child, so he believed everything his parents told him.

25. The second-named applicant claims that he would be forced to complete two years compulsory military service in Iran if he was returned. He claims that although he is an Iranian citizen, his true loyalties lie in Australia.

26. The second-named applicant claims that he rarely speaks to his relatives in Iran, because his main language is English. He claims to have limited language skills in Farsi and Kurdish. He also claims to have limited emotional connections to his relatives in Iran and other cultures in Iran. He claims Australia is his home and Australian culture is his culture. He claims he cannot imagine life anywhere else but Australia as he has spent a significant portion of his life here.

27. The second-named applicant claims he will be treated as a total alien in Iran and he could not survive there.

    Statutory declaration from the third-named applicant, sworn on 5 July 2021

28. The third-named applicant claims he arrived in Australia in 2010 when he was about [age] years old. He claims he has spent a significant portion of his life in Australia and that he has integrated into Australian and western culture.

29. The third-named applicant claims he started school in grade [level] in Australia and he has since graduated from high school. He claims that during year 12 despite the COVID-19 pandemic and visa cancellation, he made significant efforts to be the best version of himself and studied hard, participated in school activities, continued holding his secretary and treasurer positions in the student council and became a [School 2] Prefect. He claims he has qualified to study [subjects] at university, but he is unable to afford the international student fees. He claims the years of schooling in Australia and general exposure to different cultures has shaped his personality, morals and beliefs.

30. The third-named applicant claims to have been born a Muslim. He claims he has memories of being shouted at school in Iran because he could not properly recite the Quran.

31. The third-named applicant claims he began to question his faith and belief in God in 2017. He claims to have read books such as ‘1984’ by George Orwell and ‘Brave New World’ by Aldous Huxley, which although not strictly about God, question aspects of religions and the dark paths blind faith can lead to. He claims to have regular debates and discussions with family and friends about the existence of a God.

32. The third-named applicant claims he is a believer of free speech and human rights, and that he has become a fan of history, particularly American history. He claims to have an American flag hanging in his room along with vintage World War II Americana posters. He claims to have memories of having to shout “death to America” during schooling in Iran when he was a child.

33. The third-named applicant claims he is an atheist and that he does not believe in a higher power. He claims that atheism is a crime which is punishable by death in Iran.

34. The third-named applicant claims he has spent the most important years of the development of his personality in Australia, which he believes is incompatible with the culture, government and laws of Iran.

35. The third-named applicant claims that up until a few weeks before writing this statutory declaration, he was unaware that he was an Iranian citizen and his parents disclosed this information to him.

36. The third-named applicant claims that as he is an Iranian citizen, he would be forced to complete two years of compulsory military service if he is returned to Iran. He claims that although he is an Iranian citizen, his true loyalties lie in Australia.

37. The third-named applicant claims he can no longer speak Farsi or Kurdish fluently, which are the languages of Iran.

38. The third-named applicant claims to believe he should have the right to express his opinions. He claims Australia is his home and that he sees a future in Australia, not Iran.

39. The third-named applicant claims that living in Iran would conflict with his fundamental characteristics, namely his atheism and important aspects of his identity. He claims he would be required to take drastic actions to conceal his identity in order to avoid raising suspicions in Iran. He claims to fear for his safety and that of his family’s should they be returned to Iran.

    Pre-hearing submissions dated 9 July 2021

40. The Tribunal received pre-hearing submissions from the applicants’ representative dated 15 July 2021.

41. The applicants’ representative acknowledged that the first-named applicant has provided incorrect information in his protection visa application and that the first-named applicant accepts there was non-compliance in the way described in the NOICC.

42. The applicants’ representative noted that the applicant’s sons’ interests would be affected by cancellation as their visas would be subject to consequential cancellation. She submitted that cancellation of the first-named applicant’s visa would not be in the best interest of his children.

43. The applicants’ representative submitted that the first-named applicant and members of his family unit would suffer a very high degree of hardship as a result of the cancellation of his visa.

44. The applicants’ representative requested the Tribunal to exercise its discretion in favour of the applicant due to concerns for the welfare and safety of the applicant’s children if they were returned to Iran. She further submitted that the applicants’ children fear harm if returned to Iran.

    Post-hearing submissions dated 15 July 2021

45. The Tribunal received post-hearing submissions from the applicants’ representative dated 15 July 2021.

46. The applicants’ representative submits that the secondary visa applicants fear persecution and/or serious harm by the state of Iran during their compulsory military service and their refusal to participate in Islamic practices and/or their desertion from their compulsory military service duties.

47. The third-named applicant also claims to fear persecution and/or serious harm arising from his activities on social media. The representative states the third-named applicant fears he will be questioned, arrested and harmed by the Iranian authorities on return to Iran, because he has freely expressed his opinion against the Islamic religion and the Iranian government on social media. The representative submits that the third-named applicant would be seen as someone who is anti-regime and actively trying to bring down the regime, and on that basis, he will suffer persecution by the Iranian authorities amounting to serious harm.

48. The applicants’ representative submitted country information from various sources on compulsory military service in Iran and threat of harm for actual and imputed religious opinion faced by social media activists in support of the secondary visa applicants’ claims.

49. The applicants’ representative submits that the third-named applicant has rejected Islam at a fundamental level and has spoken against god, religion and the Iranian authorities in many social media forums. She submits that the abandonment of an Islamic leader is the abandonment of Islam, which is considered apostasy, which encompasses acts of conversion or atheism. She submits that such persons are reported to be ostracised or harmed by their community and suffer severe punishment by Iranian authorities. She submits such persons are required to hide their religious views to avoid persecution. She submits that it is a well-established legal principle that decision makers must consider the threat of serious harm and not the applicant’s ability to avoid that harm.

50. The applicants’ representative submits that the third-named applicant will not hide his political and religious opinions in Iran, and he desires to continue to share his beliefs actively and openly. Referring to s.5J(3) of the Act, she submits that the third-named applicant cannot be expected to take reasonable steps to modify his behaviour so as to avoid a real chance of persecution, as that modification would conflict with a characteristic that is fundamental to his identity or conscience; or conceal an innate or immutable characteristic; or conceal or alter his true political beliefs.

    Evidence

51. The Tribunal has before it a range of material, including, relevantly:

    a.The applicant’s protection visa application form (visa application). The relevant protection visa was granted to the applicant on 4 May 2011;

    b.The applicant’s identity documents being a copy of his Queensland driver licence provided to the Department;

    c.The Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 dated 4 April 2019 (NOICC);

    d.The Notification of Cancellation under Section 109 of the Migration Act 1958 dated 25 September 2019 (delegate’s decision record);

    e.The application for review form dated 6 October 2019, which did include a copy of the delegate’s decision record;

    f.Department file [number] concerning the cancellation of the applicants’ protection visa;

    g.All documents submitted to the Department of Immigration and Border Protection (the Department) in support of the applicant’s protection visa application and NOICC response, including:

    ·    Queensland driver licences of the applicant, his wife and his eldest child;

    ·    Three letters of support from friends and community associates;

    ·    Income tax return tax estimate for 2018;

    ·    A statutory declaration from the applicant’s wife, sworn on 16 May 2019;

    ·    Statutory declarations from the applicant, both sworn on 3 September 2010 and 8 May 2019; and

    ·    Statutory declarations from his two children, both sworn on 16 May 2019.

    h.All documents submitted to the Tribunal in support of the applicant’s application for review, including:

    ·Pre-hearing submissions from the applicants’ representative dated 9 July 2021;

    ·A statutory declaration from the applicant, sworn on 5 July 2021;

    ·A statutory declaration from the applicant’s wife, sworn on 5 July 2021;

    ·Statutory declarations from the other applicants, both sworn on 5 July 2021;

    ·A support letter from [Mr L];

    ·Screenshots of one of the other applicant’s [posts] posted on [Social media 1], [Social media 2] page and private messages on [Social media 2];

    ·Photographs of one of the other applicant’s bedroom;

    ·Copies of the original Iranian birth certificates of the applicant, other applicants and the applicant’s wife, each accompanied by an English translation; and

    ·Post-hearing submissions from the applicants’ representative dated 15 July 2021.

    i.Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 12 July 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Iran, published on 14 April 2020 (DFAT Report on Iran).

    Hearing:

52. The Tribunal conducted an in-person hearing on 12 July 2021. The hearing was, by written consent, jointly held with his wife’s case, as the delegate’s decision in both cases was made on the basis of similar information. The applicants attended the hearing with their representative. The Tribunal also received oral evidence from the first applicant’s wife, who is the other applicants’ mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.

53. At the outset of the hearing the Tribunal advised the applicants that it was conducting a review of a decision of the Department of Home Affairs (the Department) to cancel their protection visas under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the first-named applicant had provided incorrect information in his application for a protection visa. As a result of this, the first-named applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds.

54. The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of section 101(b) of the Act, referring amongst other things to the answers the applicants had provided in their application for a protection visa regarding their identity and protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicants had provided incorrect information in their protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.

55. The Tribunal explained to the applicants that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicants in their protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicants at the review hearing. The Tribunal explained to the applicants that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicants’ benefit.

1. The Tribunal noted that the applicants were granted a Class XA, Subclass 866 (Protection) visa on 4 May 2011. The Tribunal noted that the applicants had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicants and their representative that the Tribunal might take the applicants’ claims for protection in their protection visa application lodged with the Department of Home Affairs on 3 September 2010 as having been read. It sufficed for these purposes to note that the applicant’s claims related to him being a stateless Faili Kurd and to claims of harm arising therefrom.

   Section 438 Certificate:

2. A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that the material contained in folios 60-65 of Department file [number] should not be disclosed to the applicant because the disclosure of these documents would be contrary to the public interest. The certificate further states that the disclosure of these documents would be contrary to the public interest, because disclosure of these folios may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of these methods.

3. The Tribunal noted that it had provided to the applicant and her representative a copy of the certificate prior to the hearing and they both confirmed having received it.

4. The Tribunal considered the validity of the Certificate. It determined that the certificate is valid. The Tribunal is satisfied that in weighing the public interest aspects against the interest of the applicant being provided natural justice, the relevant information from these folios which is relevant to the decision had already been disclosed to the applicant in the delegate’s decision record. The Tribunal considers there are compelling public interest reasons for not disclosing the information in the folios, and the applicant’s interest of having access to the documents does not outweigh the potential harm to the public interest in the event the documents are disclosed.

5. Notwithstanding, the Tribunal had advised the applicant and representative that the information was contained in an Identity Assessment Report and the information had effectively been summarised in the NOICC and then covered in the delegate’s decision. The Tribunal advised that it would be giving the material contained in the document weight only to the extent that its contents had been referenced in the NOICC and the delegate’s decision.

   Conclusion on non-compliance

6. 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.

7. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]

   [1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)

8. In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5].  In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. …  A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]

   [2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.

   [3] Briginshaw v Briginshaw (1938) 60 CLR 336

   [4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383

   [5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.

   [6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]

9. This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7]  and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:

   ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

   [7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

   [8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

10. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in Form 866B and 866C of his application for a protection visa are serious.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that he gave incorrect answers to question 11 in Form 866B and questions 41, 42, 43, 44, 45 and 46 in Form 866C of his application for a protection visa. In summary, the applicant did not hold the claimed profile of an undocumented, stateless Faili Kurd who lived in Iran.

12. The Tribunal noted the very recent Statutory Declarations of the applicant and his wife wherein each agreed they had provided incorrect information in their Protection visa applications.  They each stated that they were Iranian citizens and they each agreed they had incorrectly advised the Department of Home Affairs that they were stateless.

13. This was further confirmed by the applicants’ Representative in a submission dated 9 July 2021 wherein the Representative acknowledged that the applicant and his wife had provided incorrect information in their Protection visa applications and that the applicant and his wife accept there was non-compliance in the way described in the NOICC.

14. The Tribunal acknowledged the newfound honesty of the applicant and his wife but noted that both had had numerous opportunities in which to make an honest statement, from the time of making their Protection visa application, through to the response to the NOICC.  The Tribunal further noted the statements of the applicant and his wife that they had often thought of making an honest statement to correct the record.  The Tribunal explained to the applicant and his wife that it needed to balance the fact that they have ultimately decided to be honest about their claims against the time in which it has taken them to do so.

15. The Tribunal considered the claims of the applicants, noting that they related to them being stateless Faili Kurds.  The Tribunal explained that the delegate had accepted and relied upon the information provided by the applicants in their Protection visa applications in making the decision to grant the applicants Protection Visas.  The Tribunal explained further that had the Delegate been aware of the correct information at the time of making the decision, the Protection visa applications would have been subject to further scrutiny, and it is possible that the applicants would not have been granted Protection Visas.

16. The applicant accepts that he provided incorrect information in his Protection Visa application and further accepts that there is non-compliance with s.101(b) of the Act as identified by the delegate in the NOICC.

17. The applicant states that he is remorseful and apologetic to the Government of Australia.

18. The applicant states in his Statutory Declaration that he was influenced by people smugglers to lie about his background, and coupled with his fear of authorities, the Tribunal should weight this in favour of the applicant. The Tribunal acknowledges supporting country information that people smugglers recommend identities to be adopted by refugees.

19. Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that he did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.

    Should the visa be cancelled?

100. 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).

101. 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.

102.   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.

103.   The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:

·whether there would be consequential cancellations under s.140.

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

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

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

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

The correct information

104.   The applicant claimed in his Protection visa application that he was a stateless Faili Kurd from Iran, and have not been able to live a normal life where he could access basic essential public services such as  health and hospital care, education, insurance and housing. He claimed that he undertook electrical labouring jobs, however obtaining employment was extremely difficult and wages were extremely low for Faili Kurds and he was unable to provide for his family. He claimed that as he had never been issued with any identification, he was regularly harassed, searched and harmed by the Basij. The applicant also claimed he feared being identified, searched and harmed by the Basij and other Iranian authorities. He claimed his two sons had been unable to obtain an education. He also claimed that the authorities would think he was a spy if he returned to Iran and that a person in his situation would be executed. He claimed the Iranian authorities would capture him at the airport if he returned and that he left the country using a false passport.

105.   The correct information is that the applicant is an Iranian citizen and would have access to the benefits and rights accruing to Iranian citizenship including education and medical services. 

106.   The correct information is that the applicant’s siblings and two children are Iranian citizens.

107.   The correct information is that the applicant departed Iran using his own validly issued Iranian passport.

The content of the genuine document (if any)

108.   The prescribed circumstance is not relevant in the present case.

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

109.   The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.

110.   As has been explained in the delegate’s decision, the Tribunal considers that the applicant may not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.

111.   The applicant, in his statutory declaration of 5 July 2021, has provided new claims or grounds on which the applicant believes he may be entitled to protection, including as to his atheism and political views.

112.   As these new claims were not before the delegate when making the decision to grant a visa, they could not have been considered by the delegate.

The circumstances in which the non-compliance occurred

113.   The incorrect information was provided at the time that the applicants made their Protection visa applications.

114.   At an Identity Interview participated in by the applicant, his wife and eldest son, with the Department on 17 February 2017, inconsistent information was received from the three of them, causing the Department to scrutinise the authenticity of their protection claims.

115.   The Tribunal discussed with the applicant’s wife their departure from Iran.  The applicant’s wife advised that they flew from Iran to [Country 2] where they boarded a boat to Australia.  The Tribunal asked how many people were aboard the boat and the applicant’s wife, after consultation with the applicant, advised that there were about 45 people aboard the boat.

116.   The Tribunal discussed the circumstances by which the applicant came to make the claims he did. The Tribunal has referenced the explanation about the applicant’s fears of authorities and the role of people smugglers above.

117.   The Tribunal queried the applicant’s wife as to the advice they received about withholding their true identity to the Australian authorities.  The applicant’s wife replied that the people smugglers told them they ought not say they were Iranian or they would be sent home.  The Tribunal asked the applicant’s wife whether they had been threatened by the people smugglers, or anyone else, for example, had a gun been held against their head.  The applicant’s wife replied that that was not the case and that the people smugglers had only offered them advice.  The Tribunal notes the applicants’ Statutory Declarations wherein they regret having relied upon that advice.  The Tribunal confirmed with the applicant’s wife that the decision to provide incorrect information about their citizenship was their own decision.  The applicant’s wife confirmed that.

118.   The Tribunal has considered that explanation, but is satisfied that the applicant acted upon the advice of the people smugglers of his own free will. He was an adult at the time of making his application for a protection visa. He formed the view that the advice of the people smugglers to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa.

119.   The Tribunal is completely satisfied that the applicants fabricated their claims at the time of making their Protection visa applications, in order to achieve a favourable immigration outcome.  They relied upon the advice of people smugglers which they agreed was in the form of advice only and they agreed that the decision to provide claims based on them being stateless Faili Kurds was a decision made by them.

120.   The Tribunal gives this considerable weight in favour of cancelling the visas.

The present circumstances of the visa holder

121.   The Tribunal discussed with the applicant and his wife their present circumstances.

122.   The Tribunal noted that the applicants had arrived in Australia in July of 2010.  Therefore, they have been in Australia now for 11 years.

123.   The Tribunal discussed their living arrangements since they had arrived.  The applicant’s wife advised that they had been living at [Suburb 1] for four years, then at [Suburb 2] for four years, and most recently at [Suburb 3].  She advised that the children had attended [School 2].

124.   The Tribunal asked the applicant’s wife whether she and her husband had made many friends.  She replied that they did not have many friends.

125.   The Tribunal inquired of the applicants about their work activities.

126.   The applicant’s wife advised that she did not work and was responsible for raising the family.  She had participated in voluntary work at the children’s school doing tuckshop for about two years.

127.   The Tribunal then asked the applicant about his work history. 

128.   The applicant explained that he had spent the first two years in Australia learning English.  In 2013, he worked as a volunteer for [a charitable organisation] sorting [goods]. 

129.   In 2013 to 2014, the applicant worked in a casual capacity at a local school performing cleaning duties.

130.   In 2014 to 2015, the applicant worked at a kebab shop at [a shopping centre], commuting from Brisbane to [City 1] daily.

131.   In 2016, the applicant took a position as a Cleaner at [School 1].  He continues to work there to this day.

132.   The Tribunal noted references from people that confirmed the nature of voluntary work, the fact of home ownership and that they were honest, hardworking people.

133.   The Tribunal is satisfied that it was evident that the applicant was hardworking and had maintained employment virtually from his arrival.  He had saved sufficient money to put a deposit on a home and so the family enjoyed home ownership.

185.   The Tribunal engaged in discussions with both sons at length.

186.   The elder son, [Child B], confirmed that he believed he was also an atheist.  He said that when he attended school in Iran, he only ever pretended to pray during religious observances.

187.   He said that he was [age] years old when the family travelled to Australia.  He stated that he could only follow his parents.  He also stated that he was not aware of his Iranian citizenship until very recently.

188.   [Child B] stated that he had been educated in Australia from the age of [age].

189.   He stated that he completed high school in 2016.

190.   In 2017, he commenced a Certificate I in [Discipline 1] but conceded that that did not work out for him.

191.   In 2018, he commenced an [Discipline 1] course, again conceding that that did not work out after seven months.

192.   [Child B] stated that he has worked casually in retail shops.

193.   He stated that he has an ambition to study Business at university.  The Tribunal queried how he might do that, and [Child B] advised that he would need to go back to school or to TAFE to improve his ATAR.

194.   [Child B] advised that he attends a gym regularly and has a wide circle of friends.

195.   The Tribunal spoke with the applicants’ second son, [Child C].

196.   References provided to the Tribunal suggest that [Child C] is a high achiever.  He was appointed to his school’s Student Council in Grade 11 and in Grade 12 he became the Treasurer of the Student Council and, in addition, was elected a Prefect.

197.   [Child C] came across to the Tribunal as being a confident young man.  He stated that he had a wide circle of friends.

198.   The Tribunal noted the reference from [Child C]’s best friend, [Mr L].

199.   [Child C] completed high school at the end of 2020, attaining an ATAR of [deleted].  He had aspirations of studying [subject], which had an entry ATAR of [deleted].

200.   [Child C] stated that his plans have been derailed somewhat by the visa cancellation process.  He now seeks to obtain a degree in Justice.

201.   At the urging of his mother, he was invited to explain his recent interest in Justice.  He then explained that as a consequence of the cancellation process, he has become aware of the processes of the Tribunal, reading many of the public decisions.  As a consequence, he has developed an interest in wanting to assist refugees.

202.   In addition to the reference from his friend, the Tribunal noted the attachments to [Child C]’s statement, which included photographs of his bedroom and a number of [social media posts], and [Social media 2] private messages and posts.

203.   The Tribunal asked [Child C] what it was that he wanted the Tribunal to understand from the photographs of his bedroom which were of a desk and a wall with an American flag hung upon it.

204.   [Child C] explained that he wanted the Tribunal to understand that he had strong pro-American views and values.  [Child C] also explained that he admired America’s involvement in World War II and its views against fascism.  He stated that he was fascinated by the Battle for Normandy. 

205.   The Tribunal turned its attention then to the [social media posts] that [Child C] had made on social media.  It noted that the [social media posts] referenced his atheism and his criticisms of the government.

206.   The Tribunal asked [Child C] whether he had made any posts in the past 12 months. The Tribunal advised that it had viewed and considered his [Social media 1] account. He agreed that he had not.

207.   The Tribunal noted that [Child C] had only commenced [posting] his political views and religious views after he had received notification of the cancellation of his visa.

208.   The Tribunal suggested that [Child C]’s intentions in doing so may have been with the intention of enhancing his arguments against cancellation of his visa.  [Child C] rejected that suggestion, claiming that his [Social media 2] private messages with his friend, [Mr L], had commenced in August of 2019, before the family had received notice of the cancellation of their visas.

209.   The Tribunal viewed some [Social media 2] private messages made on 13 May 2019 and noted that such exchanges with [Mr L] were of a private nature.

210.   The Tribunal noted that the representative had made a detailed submission about the posting activities of [Child C], identifying the risks he had undertaken in such public activities.

211.   The Tribunal has considered those public [posts]. It particular, it noted those made on 13 January 2020 tendered to the Tribunal. It noted there had been very minimal engagement with them – in fact one [post] had just a single “like”, another had two “likes” and a third had none at all. The Tribunal is of the view that such engagement is most unlikely to create any profile for [Child C] in Iran, especially when coupled with country information cited above and below – Iranian authorities having little interest in the posting of social media comments critical of the government. 

212.   Both [Child B] and [Child C] queried the Country Information that had been discussed with their parents.

213.   [Child B] queried the use of alcohol, in that if alcohol was drunk in public, the offenders would most likely be arrested.

214.   [Child C] noted that the Revolutionary Guard had killed 1,500 people after a protest.  The Tribunal noted that that had not been cited in the 2020 DFAT Report.

215.   The Tribunal noted again that 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).

216.   [Child B] and [Child C] spoke to their concerns of their atheism in relation to the compulsory military service that they will be required to undertake upon their return to Iran.

217.   Both accept that they will need to undertake two years of compulsory military service.

218.   However, each then maintained that they would be required to participate in Muslim religious practices, including attending prayer every day.

219.   They argued that as atheists, this will be completely against their beliefs.

220.   They both also mentioned that they now struggle to speak Farsi as they had been speaking in English since their arrival in Australia.  They stated that they speak Farsi less and less.

221.   The Tribunal, noting that their parents did not speak English, inquired as to how the boys communicated with their parents at home.  They replied that they spoke with their parents in a type of broken English/Farsi language.

222.   The Tribunal considered the representative’s extensive post hearing submission in relation to the compulsory military service.

Article 151 of the constitution commits the government to providing a program of military training for all of its citizens to ensure they will be able to engage in the defence of the country. Military service is compulsory for men aged between 18 and 40, and usually lasts between 18 and 24 months. One cannot choose in which force and geographic location to undertake military service. The government does not recognise conscientious objection. The UK Home Office, citing media sources, reported in 2016 that conditions for conscripts were often poor, with low pay, poor living conditions, malnutrition, and frequent physical and psychological abuse by senior officers contributing to low morale.[11]

[11] Home Office, Country Policy and Information Note Iran: Military Service, Version 2.0 April 2020

Article 144 of the constitution states that the military must be Islamic, must be committed to Islamic ideals and must recruit individuals who are committed to the objectives of the Islamic Revolution.

…The UK Home Office cites reports of harassment and abuse of conscripts due to their faith, leading to suicide or self-harm in some cases. The law does not provide for exemptions for religious minorities.[12]

[12] Home Office, Country Policy and Information Note Iran: Military Service, Version 2.0 April 2020, p.25

Those seeking to avoid military service are likely to face arrest and restricted access to a wide range of social benefits and civic rights, which may impact their ability to leave the country.[13]

[13] DFAT Country Information Report Iran April 2020’, Department of Foreign Affairs and Trade, 14 April 2020, p.56

The US Department of State (USSD) stated in its 2018 International Religious Freedom Report: ‘The constitution states the military must be Islamic, must be committed to Islamic ideals, and must recruit individuals who are committed to the objectives of the Islamic revolution. In addition to the regular military, the IRGC [Islamic Revolutionary Guard Corps] is charged with upholding the Islamic nature of the revolution at home and abroad. The law does not provide for exemptions from military service based on religious affiliation.

A report published in August 2018 by Kayhan Life reported that ‘Abolfazl Abutorabi, a member of the Majlis (Iranian Parliament) Committee on Council and Internal Affairs, has described the Iranian military service program as the worst in the world. […] Abutorabi said some conscripted soldiers developed psychological and emotional problems that could lead to suicide.[14]

[14]  Unlike their parents, the two boys have made some pronouncement as to their religious beliefs. [Child C], in particular, has made written statements as to his atheism, albeit in a forum that the Tribunal would dispute is public.

224.   The Tribunal is troubled by the two boys having to fulfil military service in circumstances where they can not be committed to Islamic ideals.

225.   Again, the Tribunal has not been overwhelmed by evidence in support of their anti-Islam views. A photo of an American flag and a couple of private [messages] is not compelling.

226.   But coupled with their lengthy Australian education, their movement away from the Farsi language, and the Islam religion, the Tribunal concedes that in a military service environment, they would likely become targets for attention.

227.   Again, the Tribunal would concede that it is likely that s.5J(3) would be enlivened, as they might be required to modify their behaviour in order to give effect to the requirement to be committed to the Islamic revolution. It would be said that they are altering their religious beliefs, including by renouncing a religious conversion from Islam, or concealing their true religious beliefs - atheism.

228.   In such circumstances, the Tribunal accepts that there is a real risk that either of the sons may face serious or significant harm whilst performing the compulsory military service.

Conclusion

229.   Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa, notwithstanding his present, though late, apology and remorse.

230.   The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on his return.

231.   The Tribunal has also considered country information relating to returnees to Iran, noting that the IOM runs a program to assist voluntary returnees to Iran and provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.[15]

[15] DFAT Report, paragraph 5.27 – 5.28

232.   The Tribunal also notes that the applicant is of means, and upon the sale of his house, will have some proceeds by which to re-establish himself and family back in Iran.

233.   The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[16]

[16] DFAT Report, paragraph 5.29 – 5.31

234.   The DFAT Report also notes that authorities pay little attention to, and that it is not aware of prosecutions for, atheism or proselytising while abroad.[17]

[17] Ibid

235.   As decisions go, this one is line ball, and the Tribunal acknowledges that finding the right balance in this case has been a complex one. The Tribunal has not rushed into this decision and has revisited it regularly. On the one hand, it is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) his claims for advantage. It is mindful that each of his “new” claims have failed to persuade the Tribunal, either individually or cumulatively, that he will be persecuted now, or in the reasonably foreseeable future, if he returns to Iran.

236.   However, the Tribunal notes that the applicant has resided in Australia for around eleven years and this is a very substantial period of time. It also notes that the applicant has made connections with the community. The Tribunal also notes that he has enjoyed the benefits of the health and employment systems, benefits which the Tribunal has not been persuaded he could not obtain in Iran.

237.   The Tribunal notes that the applicant has maintained very regular employment and has accumulated a number of supporters of his hard work and ethics.

238.   The Tribunal is very mindful of the impact return to Iran will have on his two sons.

239.   The Tribunal is mindful that the sons have made connections within the community, have a wide circle of friends in Australia and no connections at all with anyone in Iran.

240.   The Tribunal is mindful that both sons have made academic endeavours, albeit with mixed success, but each have ambition.

241.   The Tribunal is also very aware of the differences in lifestyle expectancy should the sons be required to return to Iran.

242.   But that which swings the balance is the requirement for the two sons to undertake compulsory military service and to have allegiance to a military that must be Islamic, and which must be committed to Islamic ideals. That military must recruit individuals who are committed to the objectives of the Islamic revolution and uphold the Islamic nature of the revolution at home and abroad. The Tribunal accepts that the two sons may be atheists, or non-practicing Muslims at worst, and that for them to participate in the military service, they will be required to participate in a religious observance that would require them to alter their own religious beliefs.

243.   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.

244.   Having had long and due regard to all the relevant circumstances, as discussed above, but particularly to the risk of harm to the applicant’s children, the Tribunal concludes that the visa should be not be cancelled.

Overall conclusion

245.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

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

Michael Hawkins AM
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.