2000820 (Migration)

2000820 (Migration) [2022] AATA 3953 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mrs Roya Majd (MARN: 0701239)
CASE NUMBER: 2000820

MEMBER:Melissa McAdam
DATE:26 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 26 October 2022 at 3:58pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – nationality – stateless – Faili Kurd – family composition – Iranian citizenship – conversion to Christianity – non-refoulement obligations – prospect of indefinite detention – best interests of the child – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 101-105, 107-109, 116, 197
Migration Regulations 1994
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with his obligations under s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review.
Section 107 Notice, NOICC
On 9 September 2019 the department delegate issued a notice of intention to consider cancellation of the applicant’s resident return subclass 155 visa (the NOICC), under s.107 of the Act, to the applicant. In the NOICC the delegate set out the following:
… As a delegate of the Minister, I consider that you did not comply with section 101(b) of the Migration Act 1958.
…
Providing incorrect information on the application form for the Protection (subclass 866) visa granted on 6 July 2011 may result in the Resident Return (subclass 155) visa granted on 4 September 2018 being liable for cancellation.
…
Evidence of possible non-compliance:
[In] November 2009, you arrived as an undocumented irregular maritime arrival (IMA) to Christmas Island.
On 9 November 2009, you attended an Entry Interview with a departmental officer. During this interview you identified yourself as [the applicant’s name] born in Iraq on [DOB 1]. You stated you were a Faili Kurd who experienced discrimination in Iran and did not have effective protection in a safe third country.
On 17 March 2010, you were assessed as not meeting the criteria set out in Article 1A of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. The delegate was not satisfied that you faced harm amounting to persecution on account of your ethnicity or nationality upon your return to Iran.
On 21 March 2010, you requested your case to be referred to Independent Merits Review (IMR) for further assessment. The initial IMR determined that you were not someone to whom Australia owed protection obligations. On 4 April 2010, your authorised migration agent made additional submissions. Following a subsequent review the IMR recommended on 30 March 2011 that you were someone to whom Australia owes protection obligations.
On 11 April 2011, the Minister exercised his power under section 46A (2) of the Act to allow you to lodge a Protection visa application.
Evidence - Form 866 - Application for a Protection (Class XA) visa:
On 4 July 2011, you lodged a Protection (subclass 866) visa application. The Protection visa application Form 866 included the answers (in italics) to the following questions:
Form 866B Question 1
Give details of ALL persons included in this application (those claiming to be refugees and members of the same family unit)
[Applicant’s name]; Date of birth: [DOB 1]
Form 866B 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?
You ticked the box denoting Yes" and listed the following family members:
Family name; Given name; DOB; Place & country of birth; Citizenship; Relationship to applicant; Country of current residence
[Father A, DOB specified] Baghdad Iraq, Stateless Father Deceased
[Mother A, DOB specified] Baghdad Iraq, Stateless Mother Iran
[Brother A variant 1, DOB specified] Baghdad Iraq, Stateless Brother Iran
[Brother B] [DOB 2] Baghdad Iraq, Stateless Brother Iran
Form 866C Question I
What is your full name? Family [and Given names]: [Applicant’s names]
Form 866C Question 19
Your citizenship at birth: Stateless
Form 866C Question 20
Your current citizenship (if different at birth): N/A
Form 866C Question 21
Do you hold any other citizenship or are you a national of any other country?
You ticked the box denoting No"
Form 866C 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
Form 866C Question 42
Why did you leave that country? See statement already submitted with RSA request
In the statement of your protection claims dated 12 December 2009 you stated:
'I left Iran because I am stateless and am given no rights or protection by the Iranian government or authorities.”
Form 866C Question 43
What do you fear may happen to you if you go back to that country? See statement already submitted with RSA request
In the statement of your protection claims dated 12 December 2009 you stated:
‘I fear that if I am forced to return to Iran I will be persecuted, continue to live without citizenship, and continue to live with no civil and political rights. If I am forced to return to Iran after returning from a foreign country, the Iranian government will label me a spy. If I cannot show the authorities identity documents I fear I will be detained, questioned and killed.’
Form 866C Question 44
Who do you think may harm/mistreat you if you go back? See statement already submitted with RSA request
In the statement of your protection claims dated 12 December 2009 you stated:
‘I fear persecution from the Government and authorities of Iran and Iraq.’
Form 866C Question 45
Why do you think this will happen if you go back? See statement already submitted with RSA request
In the statement of your protection claims dated 12 December 2009 you stated:
‘I fear this will happen to me because I do not have any ID card am not a citizen of Iran or Iraq'
Form 866C Question 46
Do you think the authorities of that country can and will protect you if you go back? If not, why
not? See statement already submitted with RSA request
In the statement of your protection claims dated 12 December 2009 you stated:
'The authorities in Iran and Iraq cannot protect me because I am not a citizen of either country and therefore have no rights'
The Department holds the following evidence in regards to your identity:
Financial transactions:
The Department has financial information indicating you transferred funds on a number of occasions to individuals named [Person A], [Person B variant] and [Person C variant 1].
This financial information indicates you transferred funds to [Person C variant 2] on 31 July 2012 and 17 October 2012. The contact phone number… for [Person C variant 2] on this transaction matches the contact phone number on another funds transfer made to [Person C] by her partner on 15 February 2012.
Evidence - Iranian Identity documents and family composition:
[Person C] (DOB: [DOB 3]) applied for a Refugee and Offshore Humanitarian (subclass 202) visa for Australia on 29 June 2010. On this application, she declared that she was born in Iran and acquired Iranian citizenship by birth. [Person C] also submitted an Iranian shenasnameh (ID Card number …) which confirmed her parents' names as [Person A variant] and [Person B]. This document also confirmed that [Person C’s] parents were Iranian citizens and that her father [Person A variant’s] Iranian shenasnameh number as …. Following the refusal of her Refugee and Offshore Humanitarian (subclass 202) visa application, [Person C] (DOB: [DOB 3]) arrived in Australia [in] November 2012 and submitted an application for a Safe Haven Enterprise (subclass 790) visa on 29 June 2017. On this visa application, she declared she was born in Iran and acquired her Iranian citizenship by birth. On the application, she also declared the following family members:
Family name; Given name; DOB Place & country of birth; Citizenship; Relationship to applicant; Country of current residence
[Person B] N/A, Ilam Iran, Iranian Mother Iran
[Person A variant] N/A Ilam Iran, Iranian, Father Iran
[Brother A] N/A, Ilam Iran, Iranian Brother Iran
[Person C] also submitted the same Iranian shenasnameh (number …) with her Safe Haven Enterprise (subclass 790) visa application. Based on country information available, Iranian shenasnamehs are only issued to Iranian citizens. According to Article 976 of the Iranian Civil Code, Iranian citizenship is acquired through the father.
[Person C’s] shenasnameh confirmed that she acquired her Iranian citizenship at birth as both her parents [Person A variant] and [Person B] were Iranian citizens. This shenasnameh also confirmed her father [Person A variant’s] Iranian shenasnameh number as ….
Consideration of Evidence:
The grant of your Protection (subclass 866) visa was based on your satisfying the Minister you engaged Australia's protection obligations under the 1951 Refugees Convention and the 1967 Protocol Relating to the Status of Refugees. Your claims were based on the persecution and discrimination you experienced because you were a stateless Faili Kurd residing in Iran.
You claimed that due to your statelessness, you were denied the same rights afforded to Iranian citizens, such as access to Iranian health and education systems, identity documents and ability to own assets in Iran. You stated that you were not recognised as a citizen of Iran. You claimed that the Iranian authorities would not protect you if you were forced to return to Iran. You also claimed that your life would be in danger if you returned to Iran. These claims were fundamental to the determination made by the Department that you are a person to whom Australia has protection obligations.
I note that [Person C] declared [Brother A] as her brother on her Safe Haven Enterprise (subclass 790) visa application and this name is similar to the brother named [Brother A variant 1] who you declared on your Protection (subclass 866) visa application. I also note that you have been transferring funds to a person named [Person C variant 2] which appears to be an alias given the contact number provided for these transactions matches to transactions for [Person C].
Given this information, I consider that [Person C] is your sister and it therefore follows that your parents are [Person A variant] and [Person B]. As per the shenasnameh submitted by [Person C], it appears that your parents are Iranian citizens by birth.
Article 976 of the Civil Code of Iran defines who is an Iranian national. Children inherit citizenship through the father's bloodline. The official Iranian identity documentation referred to above appears to contain information about your father that is only listed on Iranian identity documentation if the holder is a citizen of Iran.
As it appears your father [Person A variant] is a documented Iranian citizen, this follows that you are an Iranian citizen by birth and not a stateless person as claimed on your Protection (subclass 866) visa application.
Based on the evidence currently before me, I consider you have not complied with section 101(b) in regard to the answers provided incorrectly in your Protection visa application:
Question 19 of Part C of Form 866, which stated: 'Your citizenship at birth" you answered "Stateless ". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
- Question 20 of Part C of Form 866, which stated "Your current citizenship (if different at birth)' you answered "N/A' I consider this to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth.
Question 21 of Part C of Form 866, which stated, Do you hold any other citizenship or are you a national of any other country?" you ticked the box denoting No ". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
Question 42 of Part C of Form 866, which stated Why did you leave that country?" you answered in the statement of your protection claims dated 12 December 2009 that you faced significant discrimination in Iran due to being stateless and unlawful in the country. You stated that you were denied access to services and protections of the Iranian state. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
As an Iranian you would have had access to the government services, social services, benefits and protections available to all Iranian citizens.
Question 43 of Part C of Form 866, which stated What do you fear may happen to you if you go back to that country?" you answered in the statement of your protection claims dated 12 December 2009 that due to not being a citizen of Iran you would be persecuted upon your return to Iran. You also stated that if you were unable to show identity documents to the authorities, you would be detained, questioned and killed. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. According to available country information, documented Iranian citizens who return to Iran, even after a long period away, are unlikely to be questioned about their absence. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities if you returned to Iran.
Question 44 of Part C of Form 866. which stated Who do you think may harm/mistreat you if you go back?" you answered in the statement of your protection claims dated 12 December 2009 that you would be harmed by the authorities in Iran and Iraq upon your return. I consider this answer to be incorrect as your claims were based on your status as a stateless person, whereas the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities and security agencies for the reason of being a stateless and undocumented person.
Question 45 of Part C of Form 866, which stated Why, do you think this will happen if you go back?" you answered in the statement of your protection claims dated 12 December 2009 that you would face consequences due to not being a citizen of Iran or Iraq. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen you would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person as stated in your Protection visa application.
Question 46 of Part C of Form 866. which stated "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" you answered in the statement of your protection claims dated 12 December 2009 that you would not be protected by the Iranian authorities because you not a citizen of Iran. I consider this answer to be incorrect because the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.
I consider you have not complied with section 101(b) of the Migration Act in relation to the incorrect answers given in your Protection visa application. I consider the answers given are incorrect because the evidence available to me indicates you are not a stateless person, but rather you are an Iranian citizen and were so at the time of the Protection visa application. As such, you would have had access to the government services, social services, benefits and protections available to all Iranian citizens.
Response to NOICC
On 23 September 2019 the applicant’s then Agent provided the following submission in response to the NOICC:
Our client's comment on the non-compliance issues:
Both at the time that he has arrived in Australia and now, he has been and still is a Faili Kurd.
He does not have a sister. [Person C variant 3] is his cousin with whom [the applicant] grew up. [The applicant] states that he, his mother and his only brother ([Brother B variant]) have all lived with and were looked after by his uncle "[Person A]"([Person C’s] father). As such [Person C] and our client have seen each other as sister and brother, but in reality they are cousins. Please find enclosed the translated birth certificate for [Person A] who is [Person C’s] father. As you would see in the children's name section, there is no mention of [the applicant’s name] or [Brother B].
[The applicant’s] both father and mother are of Iraqi Faili Kurds ethnicity. After their deportation to Iran (when the visa holder was only [age] years old), they have lived with [the applicant’s] paternal uncle ([Person A]). [Person A variant] has been in a better position financially mainly because of his wife who was an Iranian citizen. Thanks to his wife's parents' connections, [Person A variant] was able to receive Iranian citizenship for himself and his children. Please find attached a translated copy of [Person A’s] birth certificate.
As for the concerns raised about money transfer to [Person C], [the applicant] states that "while I was in Australian detention for nearly 2 years, my uncle's family were looking after my mother. Once I was released I started sending small amounts of money to my mother. Given that my mother did not have any identity, therefore, did not have any bank accounts, I had to use the details of a member of my uncle's family for bank transfers. [Person C] was the youngest and less busy compared to the rest of family members, I therefore asked her to do so while she was in Iran. When she came to Australia, I asked my uncle to assist me with it. Since my uncle's death in 2017, I have been transferring money to my mother via my uncle's wife."
As for the following concern raised by the delegate: "This financial information indicates you transferred funds to [Person C variant 2] on 31 July 2012 and 17 October 2012. The contact phone number… for [Person C variant 2] on this transaction matches the contact phone number on another funds transfer made to [Person C] by her partner on 15 February 2012.'
Our client states that [Person C variant 2] and [Person C] are both the same. The money exchange company has perhaps mistakenly misspelled [Person C’s] first name. As you would see from the bank account details, in both cases the same bank account details have been provided and used.
Our client admits to knowingly providing incorrect answer on Form 866B question 11 where he was asked about his non migrating family members. He has included [Brother A variant 2] as his brother, while in-fact [Brother A variant 2] is his cousin. Our client states that [this person] was and still is like a big brother to him, and since childhood he referred to him as his brother whenever and wherever he was introducing him. Our client further states that he had hoped that by providing [this person’s] name, he would be able to one day invite [Brother A variant 2] to Australia so he can repay what [this person] had done for him. Our client sincerely regrets doing this and apologises from the Australian government for providing this false information. Please find attached a translated copy of [Brother A variant 2’s] birth certificate.
…
SUBMISSIONS FOR DISCRETION
(1) The correct information
The correct information is that the applicant, [named]:
Is a stateless person who does not have any identity; Is a Faili Kurd; Does not have a sister; Has wrongfully given [Brother A variant 2’s] name as his brother while he is his cousin.
the content of the genuine document (if any):
As no travel document was provided there is no genuine document relevant to this 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:
[The applicant] is in fact an Iranian Faili Kurd, born to Kurdish parents who were a small minority of Kurds born in Iran. Although many of Faili Kurds were at later stages given Iranian citizenship, the visa holder ([the applicant]) has never received Iranian citizenship. His parents and brother did not receive Iranian citizenship either.
[The applicant] states that his uncle's family have received Iranian citizenship mainly because his uncle's wife was an Iranian citizen.
Given the information regarding the basis of the Applicant's protection visa grant, we submit that the decision to grant the applicant a protection visa was not based, wholly or partly, on incorrect information provided by the applicant regarding having a brother named [Brother A].
As such we submit that considerable weight be placed in favour of not exercising the discretion to cancel the visa.
the circumstances in which the non-compliance occurred:
We submit that the incorrect answer to question 11 on form 866B would have no effects on the application. The visa holder is extremely remorseful for providing such information.
the present circumstances of the visa holder:
The visa holder is a family man who works full time in his [occupation 1] company. He has married to [wife’s name] in 2016 and the couple have been blessed by having an Australian citizen daughter named [Daughter A].
Please find attached evidence of birth certificate and citizenship for [Daughter A], as well as the marriage certificate for 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
We are not aware of any breaches. We place no weight in favor of exercising the discretion to cancel the visa in regards to this matter.
any other instances of non-compliance by the visa holder known to the Minister:
There are no other known instances of non-compliance by the visa holder. We place no weight in favor of exercising the discretion to cancel the visa in regards to this matter
the time that has elapsed since the non-compliance:
[The applicant] has arrived in Australia in 2009 and been granted a protection visa in 2011. [The applicant] has integrated into Australian society through his work as [an occupation 1], attending community festivals and ceremonies and supporting his own family.
Living in Australia for over a decade has assisted [the applicant] to integrate well into the society. His record of good behavior over the past 10 years that he has been living in Australia proves his good character.
any breaches of the law since the non-compliance and the seriousness of those breaches:
Our client is of good character and has no criminal convictions recorded in Australia or otherwise.
We place little weight in favor of exercising the discretion to cancel the visa in regards to
this matter.
any contribution made by the holder to the community:
[The applicant] has been orientated and accustomed to the Australian way of life over the past 10 years. Since his arrival in Australia, [the applicant] has made every effort to contribute to the Australian society. Please find attached some supporting character letters confirming this statement.
As per The Department's Procedural Advice Manual (PAM3) we are required to consider the following four (4) matters:
Consequential Cancellation:
We submit that there is no other family member whose visa will be cancelled if [the applicant’s] visa is cancelled. However, [the applicant’s] spouse has applied for a partner visa since 2016 and the decision making on the application was awaiting the status [the applicant’s] citizenship as per direction 72 (currently direction 80) made by the Minister for home Affairs. Cancellation of [the applicant’s] visa will result in the refusal of his spouse's visa application.
International Obligations:
In taking into account Australia's international obligations, the cancellation of [the applicant’s] visa would lead to the applicant's removal in breach of Australia's non-refoulement.
Mandatory Legal consequences to a cancellation decision:
Our client has claimed and maintains that he is a stateless Faili kurd. He does not have the right to enter or to be forced to enter any country. The cancellation of his visa will result in his status to become illegal in Australia while has nowhere else to return to.
Any other relevant matters:
The degree of hardship that may be caused to the family members of the visa holder:
In the unfortunate event of [the applicant’s] visa cancellation and the forceful removal of him, the care and custody of his [age] daughter will be at significant risk. If he is deported to Iran, his daughter might have to go with him. His daughter's rights to live, grow, and educate in Australia would be negatively influenced.
His daughter will have to go to Iran, a country known for its continuous and repetitive violation of human rights at every level. Children's lives are mired in difficulty in Iran.
Each month, more than 100 children die as a result of famine, street fights, and illness. National authorities are searching for ways to check the flow of child trafficking and child labor. However, it is sometimes authorities who themselves violate the most fundamental of children's rights. Iran is one of the last countries in the world that allows the death penalty for those under the age of 18. For more information about the status of children in Iran we have attached a document called: Main problems faced by children in Iran (Ref: applicant’s]s child is female, which means she will suffer even more than their male counterparts, if she was forced to return to Iran. In Iran, [Daughter A] should be raised under and according to Sharia law, a type of law that has no or little respect for women. Iran has engaged for over three decades in systematic and often egregious discrimination against women. Since the Islamic Revolution, Iran's clerical rulers have been preoccupied with setting limits on the rights and role of women and have taken many initiatives to impose gender discrimination under the rubric of applying Islamic law. Laws have been enacted sharply restricting women's educational and professional opportunities, reinforcing male control over women in the family, imposing gender segregation in many arenas such as sports activities, requiring all women to wear dark and concealing uniforms, and adding discriminatory features to the criminal code.
Some legal and even cultural examples of the discriminations against women in Iran are as follow:
. Divorce law in the Islamic republic of Iran is based upon the general rule in Shari'a law that gives men the sole right to end a marriage at any time (except for very limited exceptional situations ( Under Iranian law, a woman is considered the half of a man. Women are not equal to men. Women have been desperately seeking for years to secure civil rights, such as for divorce, in the workplace, custody of their children and the right to travel. However, as it is today, they can benefit from these rights only under the authority of a man in their family, such as their father or husband ( 13/06/07/iran-s-women-discriminated-against-bylaw!).
Some of the most repressive legislation in the history of the Islamic Republic of Iran, which has further restricted women in their social lives, employment opportunities, and health care, has been put forward during the past two years.
This includes the pending Plan to Promote Virtue and Prevent Vice, which explicitly calls for Basij militias to enforce strict hijab (female dress). This legislation not only violates the rights of all Iranian women, it also presents a danger to their continued safety. In March 2015, the International Campaign for Human Rights in Iran released a report, Vigilante Violence: The Acid Attacks against Women in Iran and the State's Assault on Women's Rights, which showed how this legislation has laid the groundwork for violent attacks against women in Iran and called on the Iranian Parliament to immediately withdraw the Plan (http:!/ a very recent example of the violation of Women's right we would like to refer the delegate to the incident that happened on the streets of Tehran in front of the Iranian court on 9the September 2019. In this incident, Sahar—also known as the "blue girl" for the color of her favorite team, Esteqlal of Tehran—died September 9 as a result of the burns received from her suicide attempt outside the courthouse where she faced charges for 'improperly wearing hijab."
(Ref: immolated-outside-court-dies)
For these reasons, we place considerable weight on this issue and urge you not to use your power to cancel [the applicant’s] visa.

The agent attached the following supporting documents:
-The applicant’s daughter [Daughter A’s] Australian identity documents.
-The applicant’s NSW Marriage Certificate.
-[Person A variant’s] Iranian birth certificate.
-[Brother A’s] Iranian birth certificate.
-Three character references.
Delegate’s Decision
The delegate found that the applicant is an Iranian citizen and not stateless and therefore had not complied with s 101(b) obligations.
The delegate assessed the discretionary considerations and decided to cancel the applicant’s visa.
Information to the Tribunal
Pre-Hearing Submissions
On 22 July 2022 the applicant’s representative submitted the following documents on the applicant’s behalf:
-A written statement by the applicant, dated 21 July 2022.
-The applicant’s Baptism Certificate, dated [in] February 2022, from [a named] Church.
-A letter from [Leader A], dated 17 July 2022, confirming the applicant has visited his church since June 2021 and participated in other activities there. [Leader A] states that many Iranians have come to know that the applicant is a Christian and attends the church. The applicant has a “strong interest in helping Muslims see the errors of Islam and to become Christian”.
In the applicant’s written statement he outlines the following:
In September 2019, my previous representative provided information in response to the Notice of Intention to Consider Cancelation of my visa and I continue to rely on that information, but I also wish the following information to be considered.
As I have stated previously, the only incorrect information I have provided is that I have declared [Brother A variant 2] as my brother where in fact he is my cousin.
Apart from the reasons I have stated in the past, I do not want to return to Iran because I have converted to Christianity and if I return to Iran, I will not be able to practice it the same way as here.
I was invited to church around Easter time in 2021. My friend [Friend A] who also worked with me invited me to church.
We used to talk about various things whilst [working] together and I remember talking to him about my problems in life at that time. [Friend A] told me that he used to have a lot of problems in his life and going to church had helped him greatly. He used to be a drug user and it was only with the help of the church that he was able to give it up.
For the first few weeks, I was sceptical and only an observer in the church.
I was born and grew up in a very religious family and also an Islamic society. I learnt to pray, fast and participate in religious activities with my parents and until I grew up myself, I practiced Islam.
When I was about 19 years old, I saw a few men being lashed in public. Their crime was drinking alcohol. Another time, when I was about 22 years old, I saw the authorities chopping a man’s finger off because he had stollen something.
Knowing that God whom I worshiped, was the same god whom, had ordered these acts of violence, bothered me and over time I lost my connection with god, and that was why I was hesitant to believe that going to church would help me but I accepted my friend’s invitation because I had nothing to lose and no one would force me to go to church if I chose not to.
In June 2021, after going to church for a few weeks, I spoke to our pastor and expressed my interest in committing to Christianity.
The reason I decided to commit myself to Christianity was because I had felt a serenity in connecting to God that I had never experienced before.
I was Baptised [in] February 2022. This was an amazing day for me because it was the day of salvation, being born again free of sins.
I practice Christianity by going to church on Sunday mornings and participate in Bible studies on Sunday afternoons. On Tuesdays, also, I attend Bible studies between 7-9 in the evening.
I also practice Christianity by promoting it, giving the good news of Bible and inviting others to join Christianity because I believe it is a way to salvation.
Giving to charity and helping others is also something I like to do.
I feel like I have changed to a better person because I am kinder and can forgive people easily, I don’t hold a grudge anymore.
If I am returned to Iran, I would have to pretend that I am a Muslim, and I cannot do that because this is my way of life now, I cannot change it.
Tribunal Hearing
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.He is married. He and his wife married in Sydney. The applicant’s cousins in Australia attended their wedding. His wife and child are now in [Country 1]. They are not able to return to Australia because his wife could not get a visa. Their child is now [age] years old and is an Australian citizen. Every day he is in contact with his wife and child.
b.The applicant can speak Kurdi and Farsi. He speaks Farsi with an accent. The Kurdish he speaks is Kalhouri Kurdish. He can speak some Lori as well.
c.The applicant travelled to Australia by boat with his cousin’s husband [Relative A]. [Relative A] is not an Iranian citizen. The applicant does not know how [Relative A] obtained a marriage certificate, it may have been because his wife has documents.
d.The applicant’s brother, [Brother B] works in Iran selling [products] in the bazaar. [Brother B] has a White Card. The applicant thinks [Brother B] can drive. He doesn’t know if [Brother B] has a Driver’s Licence. The applicant did not hold a Driver’s Licence in Iran. He was not able to obtain documents in his situation.
e.The applicant transferred money to his brother [Brother B] in Iran. [Brother B] was able to collect the money because he has a White Card. The applicant will try to submit a copy of the White Card.
f.The applicant’s mother has no documents in Iran.
g.The applicant’s uncle [Person A] died about four years ago.
h.The Tribunal asked the applicant why his parents could not obtain Iranian citizenship through the applicant’s uncle. The applicant responded that his uncle obtained nationality through his wife. She is an Iranian citizen and could get documents for him. The applicant does not know if the documents were lawfully obtained.
i.The applicant’s uncle, [Person A], is his paternal uncle, so his father’s brother. The Tribunal put to the applicant that [Person A’s] parents are recorded in [Person A’s] Iranian ID as being born in Iran with Birth Certificate numbers. Given they are also the parents of the applicant’s father, the applicant’s father would be considered Iranian too, and therefore so would the applicant. The applicant responded that he doesn’t really know how his uncle got his documents or whether they are illegal or legal. His father could not get his documents.
j.The applicant’s paternal grandparents were born in Iran. The Tribunal put to the applicant that in such a case his father could obtain Iranian citizenship. The applicant responded that this was 100 years ago when people were living in the mountains.
k.The applicant doesn’t know why his uncle’s identity document states it was issued in [year], yet contains a picture of him as a mature aged man.
l.The applicant thinks his [Relative B] is currently in Australia on a Bridging visa.
m.The applicant has been married since 2016. His wife was here on a student visa. When the visa expired she had to exit and come back with a new visa. She was able to return with a new visa. After that they decided everything was good and to have a child. They applied for a partner visa for his wife. When their daughter was [age range] the immigration department told them his wife had to leave the country and come back with a new partner visa. After she left she was not able to return despite her lawyer getting in touch. Immigration didn’t respond. The applicant went once to visit them. When he returned to Australia the government cancelled his visa. It’s now been more than [number] years since he has seen his daughter and wife. Why shouldn’t he be with his family?
n.His daughter has to pay for her schooling in [Country 1] and the applicant has to pay the fees. It costs thousands of dollars and he is struggling to be able to find the money. His daughter asks him to hold her but he can’t because they are not together.
The Tribunal also took evidence at the hearing from the applicant’s brother in Iran, [Brother B], by telephone. The connection did not remain stable and the contact was lost. The following is a summary of the information [Brother B] provided while the connection was stable:
a.He was born in [year] in Baghdad. He left Iraq with his parents and brother in [year] when he was around [age range] years old. They left because Saddam Hussein forcibly expelled them.
b.When they entered Iran they spent about 7 or 8 months in a camp in Kermanshah. After this they went to their uncle’s house in Ilam and stayed there for [number range] years.
c.They went to Tehran and rented a house. [Brother B] eventually moved out of the house but his parents continued to live there with the applicant.
d.His uncle’s home is in Ilam but he also has a house in Tehran. They would go back and forth between the houses. The house in Tehran is in the [named] area. His mother is currently in his uncle’s house.
e.His father is [Father A variant] and his mother is [Mother A variant]. His father died about 13 or 14 years ago. He had been sick for a long time.
f.He speaks Kurdish.
Post-Hearing Submissions
On 10 October 2022 the applicant’s representative submitted the additional written materials:
-An Iranian ‘Temporary Residence Card – Foreign Residents’, issued by ‘BAFIA’, with English translation, in the name of [Brother B variant], born in [year], with Iraqi nationality. The card has expiry date 21 June 2023. The card contains a photo of the holder.
-A written submission by the representative outlining the following:
The applicant does not agree that he has provided incorrect information in his protection visa applications and in a statuary declaration dated 21st of July 2022, as well as during the hearing dated 21^st of September 2022, has set out his reasons for doing so.
Should the visa be cancelled?
Although the applicant does not agree there was non-compliance in the way described in the notice given to him under s.107 of the Act, it is necessary to consider whether his visa should be cancelled pursuant to s.109(1).
… The applicant has a child who is an Australian Citizen and is currently residing offshore with her mother because the mother does not have an Australian visa; the mother’s partner visa cannot be granted because the applicant’s visa is cancelled. If the applicant’s visa is cancelled, the applicant would be in detention indefinitely which means that the child would be deprived from her father’s presence in her life indefinitely. Without a doubt, as the result of the visa cancellation, the interests of this (Australian) child would be adversely affected. We submit that the tribunal, should consider the best interests of this child as a primary consideration when deciding whether to cancel the visa.
• Should the visa cancellation be affirmed by the Tribunal, the applicant would become unlawful and liable to detention and removal. The applicant would not return to Iran voluntarily and Iran does not accept involuntarily returns which means that indefinite detention is a likely consequence of the cancellation decision. This would cause severe hardship not only to the applicant, but also to his wife and Australian child who are currently separated from the applicant as the result of this visa cancellation.
• The applicant has converted to Christianity and should he return to Iran, he would be persecuted because of his religious views and the applicant’s removal from Australia, would also be in breach of Australia's non-refoulement obligations.
• We submit that based on the information and evidence provided, the visa cancellation would not be in the best interest of the child of the visa applicant and the degree of hardship that may be caused to the visa holder and this family members would be very high and without a doubt, the visa cancellation, would be in breach of Australia's family unity obligations.
Country Information
DFAT’s April 2020 ‘Country Information Report on Iran’ contains the following:
Faili/Feyli/Iraqi Kurds The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect.
Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders). Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population.
Upon seizing power in the 1960s, the Ba’athist Government in Iraq adopted several policies with the effect of excluding Faili Kurds, who the Iraqi authorities considered to be Iranian. The most notable of these – Decree No. 666 (1980) – cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’, including Faili Kurds. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is at the high end). Most Faili Kurds expelled from Iraq settled in Iran’s Kurdish-populated north-western provinces. Iran recognises many (but not all) Faili Kurds as refugees.
Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates.
Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons de-naturalised by the former government have their Iraqi citizenship restored). DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran.
Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry.
Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
Since 2002, registered Iraqi refugees in Iran have received regularly updated amayesh cards, enabling a permit to reside, access to basic services, including schooling, medical insurance and bank accounts, and the ability to obtain work permits.[1]
[1] ‘Feyli Kurds—obtaining identity travel documents’, DIBP Tehran, 17 September 2015, p. 2; 'World Refugee Survey Iran 2009', 17 June 2009.
The ACAPS website published the following information about Iran on 20 October 2022:
Iran hosts one of the largest refugee populations in the world, the majority of whom come from Afghanistan. Around 780,000 registered Afghan refugees and another 2.2 million who are either undocumented or have received a headcount laissez-passer live in Iran. … In recent years, the Iranian Government has slowly introduced policies to increase the provision and renewal of Amayesh cards (refugee identity cards). Amayesh cards grant registered refugees conditional freedom of movement, temporary work permits, and access to the national education and healthcare systems. Primary healthcare is available for free for both refugees and undocumented people. Amayesh cardholders can also access Iran’s Universal Public Health Insurance Scheme. All children in Iran have access to primary and secondary education regardless of status. …[2]
[2] >
In September 2022 the UNHCR published the following information on its website:
This is to inform that the holders of Amayesh 10 to 16 (Afghan nationals) and Hoviat cards 9-15 (Iraqi nationals), who have not renewed their cards in previous card renewal programs can renew their cards this year. Furthermore, to renew the Amayesh and Hoviat cards as mentioned above, you also need to show that you have not left Iran and do not have any judicial records booked against you.
You are requested to reach to the nearest BAFIA/Kefalat centres for additional information on Amayesh/ Hoviat card renewal process. Please note that, this practice might not apply to all applicants and will be assessed case by case. According to BAFIA, this will be the last call for the given opportunity.[3]
[3] >
In July 2021 UNHCR provided the following information regarding Amayesh card renewal:
Amayesh 16 registration is currently underway, until 21 September 2021. However, the new cards being issued by BAFIA to refugees contain new and different codes as compared to previous years. UNHCR highly recommends that you make a copy, scan or take a photo of the Amayesh 15 card of all your family members, before approaching the nearest Kefalat centres to renew your cards. This will ensure that UNHCR can continue to quickly identify your case files in the UNHCR internal database, when you approach us for counselling or support.
UNHCR encourages refugees to renew their Amayesh cards in a timely manner. Individuals who do not renew their cards risk becoming undocumented and may no longer be eligible to continue receiving support and services from the Government of Iran. Undocumented individuals also run the risk of being asked to leave Iran.[4]
[4] OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:
“Question 19 of Part C of Form 866, which stated: 'Your citizenship at birth" you answered "Stateless ". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
Question 20 of Part C of Form 866, which stated "Your current citizenship (if different at birth)' you answered "N/A' I consider this to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth.
Question 21 of Part C of Form 866, which stated, Do you hold any other citizenship or are you a national of any other country?" you ticked the box denoting No ". I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
Question 42 of Part C of Form 866, which stated Why did you leave that country?" you answered in the statement of your protection claims dated 12 December 2009 that you faced significant discrimination in Iran due to being stateless and unlawful in the country. You stated that you were denied access to services and protections of the Iranian state. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth.
As an Iranian you would have had access to the government services, social services, benefits and protections available to all Iranian citizens.
Question 43 of Part C of Form 866, which stated What do you fear may happen to you if you go back to that country?" you answered in the statement of your protection claims dated 12 December 2009 that due to not being a citizen of Iran you would be persecuted upon your return to Iran. You also stated that if you were unable to show identity documents to the authorities, you would be detained, questioned and killed. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. According to available country information, documented Iranian citizens who return to Iran, even after a long period away, are unlikely to be questioned about their absence. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities if you returned to Iran.
Question 44 of Part C of Form 866. which stated Who do you think may harm/mistreat you if you go back?" you answered in the statement of your protection claims dated 12 December 2009 that you would be harmed by the authorities in Iran and Iraq upon your return. I consider this answer to be incorrect as your claims were based on your status as a stateless person, whereas the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities and security agencies for the reason of being a stateless and undocumented person.
Question 45 of Part C of Form 866, which stated Why, do you think this will happen if you go back?" you answered in the statement of your protection claims dated 12 December 2009 that you would face consequences due to not being a citizen of Iran or Iraq. I consider this answer to be incorrect as the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen you would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person as stated in your Protection visa application.
Question 46 of Part C of Form 866. which stated "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" you answered in the statement of your protection claims dated 12 December 2009 that you would not be protected by the Iranian authorities because you not a citizen of Iran. I consider this answer to be incorrect because the evidence before the Department indicates that you have been an Iranian citizen since birth by virtue of your father being an Iranian citizen by birth. As a documented Iranian citizen there is no evidence you would be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.”
The above relate to the applicant’s nationality status, why he left Iran, and why he fears return to Iran.
The applicant’s citizenship
The information provided by the applicant in his Protection visa application is that he is stateless. He has maintained this claim throughout the Protection visa application process and the cancellation process.
The evidence that the applicant has Iranian citizenship consists of the following:
·Records of funds transfers from the applicant to [Person A variant], [Person B] and [Person C].
·Evidence that [Person C] is an Iranian citizen by birth. Her father is [Person A variant] and her mother is [Person B] and they are both Iranian citizens.
·[Person C] declared she has a brother [Brother A]. This is similar to the name of the applicant’s declared brother ‘[Brother A variant 1]’ in his Protection visa application. This indicates that [Person C] is the applicant’s sister, they share the same parents, and so the applicant also has Iranian citizenship under Iranian law.
The evidence that the applicant is not an Iranian citizen amounts to the following:
·His oral and written statements.
·The Iranian Birth Certificate booklet belonging to [Person A variant] which lists [Person A variant’s] spouse and all his [number] children. The list of names of his children includes [Person C] and [Brother A] but does not include the applicant.
·There is no indication that [Person C] has ever listed or identified the applicant amongst her siblings.
·The oral evidence of the applicant’s brother, [Brother B variant]
·The current Amayesh card of the applicant’s brother [Brother B variant], issued by the Iranian ‘Bureau of Aliens and Foreign Immigrants Affairs’ (‘BAFIA’), which shows him to be a ‘temporary resident’ in Iran, from Iraq, and his father’s name is ‘[Father A variant]’.
The applicant has provided an explanation that [Person C] and [Brother A] are his cousins and [Person A variant] is his uncle. They were able to gain Iranian citizenship so the applicant’s family lived with them when the applicant and his family moved ton Iran. The applicant has sent them money to help support them, and his mother in particular, while he has been in Australia. He further explained that his father was not able to gain Iranian citizenship and died about 14 years ago. His mother continues to live with [Person A variant] and his family. His one brother [Brother B variant] was living with [Person A variant] and his family but now lives independently. The applicant previously stated in his Protection visa application that [Brother A] was his brother, not his cousin, to try to facilitate [Brother A’s] eventual immigration to Australia.
Assessment of the available evidence
There is no onus upon an applicant to establish that a ground for cancellation does not exist. Generally, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister, or on review, the Tribunal.[5] In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the Court stated:
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]
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[6] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
The Court’s comments would be applicable to cancellations under s.109 of the Act.
In the civil context, Dixon J in the High Court held that:
the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[7]
[7] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362].
While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[8]
[8] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.
The applicant’s contention that [Person C] and [Brother A] are his cousins, not his siblings, is supported by their father’s Iranian identity documents, and by the lack of inclusion of the applicant as their sibling in any of the paperwork submitted by [Person C], or her other sibling here, [Relative B].
The applicant was reasonably forthcoming about his mother, father and brother. His descriptions of them, and his recounting of events involving them was quite distinct from his evidence about [Person A variant] and [his] family.
The applicant’s account that [Person A variant] is his uncle and [Person A’s] children are his cousins is readily possible. In the absence of any clear, cogent and persuasive evidence that [Person A variant] is the applicant’s father and [Person C] is his sister, the Tribunal is not confident that they are. The Tribunal therefore gives the applicant the benefit of the doubt that [Person A variant] is his uncle, and [Person C] is his cousin.
The main point of concern for the Tribunal is why the applicant’s father was unable to gain Iranian citizenship when his brother, [Person A], was able to. [Person A’s] document shows that their parents are of Iranian origin and it would be expected that this would also enable the applicant’s father’s to successfully claim Iranian citizenship. However the Tribunal notes DFAT’s information that notwithstanding a possibility to obtain Iranian citizenship exists because a person has a required Iranian family ancestry, nationality applications are not often successful. DFAT stated “while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved”.
The Tribunal notes too the applicant’s explanation that his uncle [Person A’s] application was expedited by his wife being an Iranian citizen who could help obtain the requisite papers.
In view of the DFAT’s information and the applicant’s otherwise plausible explanation the Tribunal gives him the benefit of the doubt that his father may have been one of the many Faili Kurd refugees with Iranian ancestry who failed to obtain Iranian citizenship.
The available evidence that the applicant has Iranian citizenship is not extensive. The Tribunal is not satisfied to a requisite level of confidence that the applicant’s father is [Person A variant], who has Iranian citizenship. The Tribunal also accepts the possibility that the applicant’s own father was unable to obtain Iranian citizenship and that the applicant has similarly not been granted Iranian citizenship. The Tribunal notes that the Amayesh card belonging to the applicant’s brother appears genuine, or at the very least does not have any readily apparent indicators it is not genuine. It was also submitted quite quickly after the Tribunal asked for it. This lends some support to it having been already in existence and not a document obtained irregularly or fraudulently after the Tribunal’s request.
On the basis of the above reasoning the Tribunal is not satisfied that the applicant does have Iranian nationality, or that he was not a stateless Faili Kurd in Iran. Therefore the Tribunal is not satisfied that the applicant provided incorrect information in his Protection visa application regarding these matters, his past experiences in Iran, and his fears of harm in Iran.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
Discretionary Consideration
Although the discretionary power to cancel the applicant’s visa does not arise, the Tribunal notes that, in the alternative, if the Tribunal had found that the ground for cancellation existed, it would consider that the discretionary factors weigh against the cancellation of the applicant’s visa.
This is based upon the best interests of the applicant’s Australian citizen child as a primary consideration, the hardship being caused to the applicant’s child and spouse, the hardship being caused to the applicant, principles of family unity, and the possibility of indefinite detention for the applicant.
The applicant’s Australian citizen child has been outside of Australia for some years with no ready way of return here. Because the applicant’s visa is cancelled the applicant’s wife is experiencing great difficulty trying to return with their child to Australia. The applicant also is not in a position to be able to travel to [Country 1] to reunite with his family and bring them back to Australia. The Tribunal therefore considers that the child’s interest are suffering greatly because of the practical inability for her to come back to Australia, the country of her citizenship. The Tribunal also considers there is a substantial level of hardship to the applicant, his wife and his child in being unable to live together as a family. The Tribunal considers that the cancellation of the applicant’s visa is preventing their reunion. Therefore, family unity obligations would require that the applicant’s visa not be cancelled. Further, the effect of sub section 197C(3) of the Migration Act means there is the possibility of indefinite detention for the applicant if his visa is cancelled. Given the applicant needs, for practical reasons, to be in Australia to facilitate being able to reunite with his wife and child, there is a real possibility he will not voluntarily return to Iran even if his visa is cancelled. This gives rise to a situation where the applicant may be indefinitely detained in Australia.
The Tribunal considers these factors weigh strongly against the cancellation of the applicant’s visa, however notes again that the discretionary power to cancel the applicant’s visa does not arise in this matter.
Conclusion
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Melissa McAdam
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.

[2022] AATA 3953

26 October 2022

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