2001420 (Refugee)

[2022] AATA 3344

2001420 (Refugee) [2022] AATA 3344 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alireza Majazi Amiri (MARN: 1801203)

CASE NUMBERS:  2001420, 2001418, 2001416, 2001419

MEMBER:Alison Murphy

DATE:18 August 2022

PLACE OF DECISION:  Melbourne

DECISION:In respect of [the first applicant] (2001420):

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.

In respect of [the second applicant] (2001418):

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

In respect of [the third applicant] (2001416):

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

In respect of [the fourth applicant] (2001419):

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

Statement made on 18 August 2022 at 9:02am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect answers given in visa application – not stateless Faili Kurds but Iranian citizens – identity documents provided with citizenship application – reviews for father’s Five Year Resident Return visa and mother’s and children’s protection visas heard and decided together – discretion to cancel visas – advice of people smugglers and other asylum seekers – elapse of time and strong community ties – father’s study and work in critical skills sector – mother’s mental health – parents now separated – best interests of children – age and education – non-refoulement – protection finding not quashed or set aside – new claims of political opinion and employment history and mother’s Christianity – possibility of prolonged detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 46A, 48A, 98, 101, 107, 109(1), 189, 197C(3), 197D(2)
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
XDJD and Minister for Immigration and Border Protection [2021] AATA 2882
1901883 (Refugee) [2021] AATA 3216

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the Subclass (155) (Five Year Resident Return) visa of the first named applicant and the Subclass 866 (Protection) visas of the second, third and fourth named applicants. In each case the decisions to cancel the visas were made under s 109(1) of the Migration Act 1958 (Cth) (the Act) and for essentially the same reasons.

2. The applicants are a family of four who arrived in Australia by boat and without a visa [in] November 2011, identifying themselves as stateless Faili Kurds formerly resident in Iran. They comprise the applicant father (being the applicant in AAT proceeding 2001420) and now aged [Age]), the applicant mother (being the applicant in AAT proceeding 2001418 and now aged [Age]) and their two daughters, [the third applicant] now aged [Age] and [the fourth applicant] now aged [Age] (the applicants in AAT proceedings 2001416 and 2001419 respectively).

3. Each of the family members was granted a permanent protection visa on 26 September 2012 and the applicant father was subsequently granted a resident return visa on 29 June 2018. The protection visas in respect of the applicant mother and daughters and the resident return visa of the applicant father were all cancelled on 21 January 2020 and those cancellations are the subject of the current reviews.

4. The delegate cancelled each of the visas on the basis that the applicants gave incorrect information in their protection visa applications about their citizenship and personal histories, claiming to be stateless when they are in fact Iranian citizens. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visas should be cancelled.

5. The applicants appeared before the Tribunal on 11 August 2022 at a combined hearing to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]; [Ms B]; [Mr C] as well as [Pastor D] and [Pastor E] of [Church]. 

6. The applicants were each represented in relation to their reviews by the same migration agent. The Tribunal has produced a single decision record for the four reviews at the request of their representative.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be set aside and substituted in each case with a decision that the visas not be cancelled.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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?

11. Each of the four applicants was sent a separate notice under s 107, each dated 12 April 2019.

12. 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 in the following respects:

    ·In respect of the applicant father, the s 107 notice dated 12 April 2019 alleged he gave incorrect information in his Form 866 at questions 9 and 22 of Part B (when he stated he had not served in the military service); at question 13 of Part C (when he stated he belonged to the Faili Kurd ethnic group); at questions 20, 21 and 24 of Part C (when he stated he was a stateless Faili Kurd of Iraqi origin born in Iran and did not declare his Iranian citizenship); at questions 37 and 38 of Part C (when he did not give full details of his education history); at questions 39–42 (when he did not give full details about his occupation and employment) and at questions 42–48 and 52 (in which he set out his claims for protection against Iran as a stateless Faili Kurd and his manner of leaving that country).

    ·In respect of the applicant mother, the s 107 notice dated 12 April 2019 alleged she gave incorrect information in her Form 866 at question 13 of Part C (when she stated she belonged to the Faili Kurd ethnic group); at questions 20, 21 and 24 of Part C (when she stated she was a stateless Faili Kurd of Iraqi origin who was not recognised as a citizen in Iran); and at questions 42–48 (in which she set out her claims for protection against Iran as a stateless Faili Kurd).

    ·In respect of the applicant daughter [the third applicant], the s 107 notice dated 12 April 2019 alleged she gave incorrect information in her Form 866 at question 10 of Part D (when she stated she was under the age of 18 and in the care of her parents); at question 14 (when she stated she belonged to the Faili Kurd ethnic group) and at questions 18 and 19 (when she stated she was a stateless Faili Kurd and did not declare her Iranian citizenship).

    ·In respect of the applicant daughter [the fourth applicant], the s 107 notice dated 12 April 2019 alleged she gave incorrect information in her Form 866 at question 10 of Part D (when she stated she was under the age of 18 and in the care of her parents); at question 14 (when she stated she belonged to the Faili Kurd ethnic group) and at questions 18 and 19 (when she stated she was a stateless Faili Kurd and did not declare her Iranian citizenship).

13. The applicant father and daughters submitted a combined response to the s 107 notices, each acknowledging they had provided incorrect information about their citizenship in the manner described in the notice. The applicant father also acknowledged providing incorrect information about his claimed experiences as a stateless Faili Kurd in Iran (including as to his education and employment history) as well as the military service he had completed in Iran and the identity of his brother [Mr C], whom he had incorrectly identified as his second cousin [Mr C – alias]. He made claims to fear harm in Iran on the basis of his political opinion and employment history.

14. The applicant mother responded separately to her own s 107 notice on 7 May 2019, having separated from the applicant father since their arrival in Australia. She also acknowledged she had provided incorrect information in her protection visa application as to her citizenship and her experiences in Iran as a stateless Faili Kurd. Consistent with the statements of the applicant father, she also made claims to fear harm in Iran on the basis of his political opinion and employment history. She also claims to fear harm in Iran for reasons of her Christian religion.

15. Consistently with the applicants’ responses to the s 107 notice, identity documents provided by the applicants in support of their citizenship application in 2017 indicate that they are Iranian citizens and not stateless as claimed in the protection visa application. In particular the applicant father has provided copies of his translated Iranian passport, national identity card, driver’s licence and birth certificate as well as evidence of his educational qualifications. Copies of the translated Iranian birth certificates for the applicant mother and daughters are also contained on the Departmental files.

16. The applicant daughters were young children at the time the protection visa applications were made. The Tribunal accepts they did not provide any information directly to the Department in respect of their protection claims and that they were too young to understand the claims made on their behalf or the consequences of providing incorrect information. However sections 98–100 of the Act have the effect that any information given on behalf of a non-citizen in relation to a visa application is taken to have been provided by the non-citizen and that an answer to a question is incorrect even if the person providing it did not know that it was incorrect. 

17. While each of the s 107 notices also alleges that the family also gave incorrect information about their Faili Kurd ethnicity, I am satisfied that is not the case. Rather the applicants have consistently stated they are of Faili Kurd ethnicity, they are recognised as such by the Faili Kurd community in Australia and they were accepted to be Faili Kurds by the Department’s Protection Obligations Evaluation officer and the Independent Merits reviewer. While the s 107 notices allege the family had given incorrect information about their Faili Kurd ethnicity, the delegate who made the decision to cancel the visas ultimately made no such finding. Rather the central issue in these matters, both at the time of grant and at the time of cancellation of the visas, was whether the applicants are stateless Faili Kurds formerly resident in Iran or whether they are Iranian nationals of Faili Kurd ethnicity. It is not now in dispute that the applicants are Iranian nationals of Faili Kurd ethnicity and the Tribunal finds accordingly.

18. In these circumstances, the Tribunal finds the applicants gave incorrect information in the manner set out in the s 107 notices as follows:

    ·the applicant father gave incorrect information in his Form 866 at questions 9 and 22 of Part B (when he stated he had not served in the military service); at questions 20, 21 and 24 of Part C (when he stated he was a stateless Faili Kurd of Iraqi origin born in Iran and did not declare his Iranian citizenship); at questions 37 and 38 of Part C (when he did not give full details of his education history); at questions 39–42 (when he did not give full details about his occupation and employment) and at questions 42–48 and 52 (in which he set out his claims for protection against Iran as a stateless Faili Kurd and his manner of leaving that country);

    ·the applicant mother gave incorrect information in her Form 866 at questions 20, 21 and 24 of Part C (when she stated she was a stateless Faili Kurd of Iraqi origin who was not recognised as a citizen in Iran); and at questions 42–48 (in which she set out her claims for protection against Iran as a stateless Faili Kurd);

    ·the applicant daughter [the third applicant] gave incorrect information in her Form 866 at questions 18 and 19 (when she stated she was a stateless Faili Kurd and did not declare her Iranian citizenship);

    ·the applicant daughter [the fourth applicant] gave incorrect information in her Form 866 at questions 18 and 19 (when she stated she was a stateless Faili Kurd and did not declare her Iranian citizenship).

19. For these reasons, the Tribunal finds that there was non-compliance s 101(a) by each of the applicants in the way described in the s 107 notice.

    Should the visas be cancelled?

20. As the Tribunal has decided that there was non-compliance in the way described in the notices given to the applicants under s 107 of the Act, it is necessary to consider whether the visas 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).

21. In exercising this power, the Tribunal must consider the applicants’ responses (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 reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).

    The correct information

22. The correct information is that each of the applicants was recognised by the Republic of Iran as an Iranian citizen and they are not stateless as claimed in the protection visa application. The correct information is that the applicant parents were not denied educational or employment opportunities in Iran because of their statelessness and the applicant father completed military service as an Iranian citizen. The correct information is that the applicants left Iran legally on their own genuinely issued Iranian passports.

    The content of the genuine document (if any)

23. This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).

    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

24. The visas were granted following the recommendation of an independent protection assessor who found that the applicant parents met the criteria for the grant of a protection visa set out in s 36(2)(a) of the Act. It is apparent from the statement of reasons dated 22 August 2012 that the independent protection assessor made that recommendation after accepting their evidence that they were stateless Faili Kurds living in Iran. The independent protection assessor accepted that the applicants attended unofficial schools or had to pay to attend the public schools, that their qualifications were not recognised and that as unregistered refugees they did not have access to free medical services and could not travel freely or register their marriage. That information was incorrect.

25. However, ultimately the independent protection assessor was not satisfied the applicants would suffer serious harm solely for reasons of their statelessness, rather she determined they faced a real chance of persecution on the basis of their imputed political opinion. While the assessor considered their status as undocumented stateless Faili Kurds formed part of the reason they would be imputed with a political opinion that would expose them to harm, it was only one of a number of factors that she considered relevant:

    I am satisfied that the harm they face would be from the Iranian authorities or Basij on the basis of their imputed political opinion, because of a combination of a number of factors - they have come to the attention of the Basij in the past for selling and owning satellite receivers, are undocumented Faili Kurds, departed the country illegally and would be returned forcibly, and have applied for asylum in Australia. I accept that they will be particularly vulnerable to this adverse attention because they are a family with two young children, and their financial situation will be dire, having spent their savings on their trip to Australia, and without any rights to access employment or government services.

26. In these circumstances it is difficult to assess whether the applicants would have been granted the visas had the correct information about their Iranian citizenship been known to the independent assessment officer. However it is clear that the decision to grant the applicants the protection visas was based at least partly on the incorrect information about their citizenship.

    The circumstances in which the non-compliance occurred

27. I accept the evidence of the applicant parents to the effect that they provided the incorrect information on arrival to Australia on the advice of the people smugglers and other asylum seekers who told them the only way to get protection was to say they were stateless. Those incorrect statements had flow-on effects for the applicants’ protection claims because the applicant father could not reveal his educational or employment history once he had declared himself to be a stateless Faili Kurd.

28. However I do not accept the evidence of the applicant parents to the effect that they did not rely upon or maintain their claims to be stateless. In making that assessment I note their direct statements that they were without citizenship in their protection visa applications. I also note the natural justice letters sent to them by the protection obligations evaluation delegate dated 14 February 2012 which made specific reference to their claims to be non-citizen Faili Kurds of Iraqi heritage living in Iran without Amayesh (white or green card) documentation and their response to that letter, including that it was more expensive for them to live than for Iranian citizens as they did not get free public health insurance or free education for their children.

29. The applicant parents were later interviewed by an independent protection assessor on
    

    [1] Decision of the independent protection assessor dated 22 August 2012

    6 July 2012 and it is apparent from the decision statement of the Assessor that the applicant parents maintained their claims to be stateless at interview, with the assessor accepting their evidence that their families were expelled from Iraq in the 1970s and that the applicants were stateless as they were not citizens of Iraq or Iran and would not be able to attain citizenship in either country in the reasonably foreseeable future.[1]

1. While I accept the applicant father disclosed his Iranian citizenship to a psychologist assigned to him by [Organisation 1] in September 2012, such a disclosure cannot be regarded as a disclosure to the Department. Firstly, that disclosure was made in confidence to a medical professional and could not have been disclosed without the express permission of the applicant father. Secondly, [Organisation 1] is a provider of refugee resettlement services and not part of the Department. In any case, the claimed disclosure to [Organisation 1] psychologist was only made after the applicant father was notified of the favourable outcome of the family’s independent protection assessment dated 22 August 2012, that outcome being that each member of the family had been assessed as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees and its 1967 Protocol.

2. The applicant parents also sent their Iranian identity documents to Victorian Interpreting and Translating Service (VITS) for translation in November 2012, receiving the translated copies in February 2013. Both of these dates fall after the grant of the protection visas and in any case VITS has no association with the Department of Immigration. I consider the applicant parents maintained their claims to be stateless Faili Kurds resident in Iran until after they were assessed as being owed protection.

3. As previously noted, the applicant daughters were young children at the time of their arrival in Australia. For this reason they were not interviewed and did not otherwise make statements in support of the family’s protection claims. I am satisfied that they were too young to understand the claims made on their behalf or the consequences of providing incorrect information and that they were not responsible for the incorrect information provided on their behalf.

   The present circumstances of the visa holders

4. The applicant father is working full time as [an Occupation 1] at [Workplace 1], having passed his occupational English test and successfully obtained registration as [an Occupation 1]. Prior to that he worked as [an Occupation 2]. Multiple records relating to his qualifications and employment have been submitted to the Department and the Tribunal.

5. The family purchased a house in [Suburb] in 2016. The applicant daughter [the third applicant] is currently in the final year of her [studies] and works part [time]. Her younger sister [the fourth applicant], now aged [Age], is in Year [Number] at [school] and aspires to be [an Occupation 3].

6. The applicant mother is receiving treatment for major depressive disorder and post traumatic stress disorder. Medical evidence before the Tribunal indicates that a feature of her illness is suicidality and that she was admitted to hospital in January 2020 following a serious suicide attempt after the family’s visas were cancelled. The applicant mother has also been diagnosed with conversion disorder and experiences syncope (a temporary loss of consciousness) when distressed. The medical evidence recommends that she be treated as a vulnerable person pursuant to the Tribunal’s Migration and Refugee Division Guidelines on Vulnerable Persons and the Tribunal concurs with that assessment.

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

7. The applicants disclosed their Iranian nationality in their citizenship applications to the Department in 2017 and it was that disclosure that prompted the cancellation of the visas. I give this factor some small weight against the cancellation of the visa.

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

8. The delegate records that there are no other known instances of non-compliance by the visa holders. I give this factor some small weight against the cancellation of the visa.

   The time that has elapsed since the non-compliance

9. The relevant non-compliance took place when the applicants provided information in support of their protection visa applications in 2011 and 2012 and approximately 11 years have elapsed since then. As is apparent from findings made elsewhere in this decision record, during this time the family have generated strong ties to Australia and the applicant daughters have lived here for most of their formative years. I consider the long period in which the applicants have lived in the Australian community weighs significantly against the cancellation of the visa.

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

10. The delegate’s decision record in each of the reviews states that there are no known breaches of Australia’s migration or criminal laws in respect of any of the applicants since the non-compliance occurred. I give this factor some weight against the cancellation of the visa.

    Any contribution made by the holder to the community

11. The Tribunal is satisfied on the evidence produced to it that the family have made a significant contribution to the community since their arrival in Australia in 2011. In particular a large number of witnesses have given oral and/or documentary evidence as to the family’s contribution to the Australian community. Many of those witnesses gave evidence as to the applicant father’s longstanding efforts to convert his Iranian [Subject] qualifications so that they would be recognised in Australia, including by achieving occupational level English language skills and the applicant mother’s care for her family and community even during her own troubles.

12. [Ms A] has known the family since late 2014, when they founded [Organisation 2] together with the applicant father’s brother [Mr C] (also known as [Mr C – alias]). That organisation started as a school project for refugee students in the northern suburbs of Melbourne but turned into a larger project concerned with integrating the Kurdish Faili community into the Australian community and in particular a concern about the levels of isolation and depression in the Kurdish Faili community. [Ms A] was the secretary of that organisation for some years and gave evidence as to her close friendship with the family and their involvement with her own extended family. She also gave evidence as to the applicant father’s dedication to his family and rebuilding their lives in Australia and his commitment to democratic values and gender equality, encouraging his daughters to value and exercise their equal rights before the law in Australia. [Ms A] gave evidence that the applicants had reached out to the community around them in caring ways despite their own difficult situation.

13. [Ms B] has known the family since 2014, when the applicant mother visited a Christian church with her. They have since attended Kurdish events and family occasions together and they have become friends with her extended family. [Ms B] talks of how hard the applicant parents worked to learn English, support their daughters, gain skilled employment and buy their own home. They were also instrumental in establishing [Organisation 2]. She speaks of their commitment to Australia and their contribution to the Australian community. While [Ms B] is a member of a different church than that attended by the applicants, she gave evidence that they have had many conversations about faith and the Faili Kurd history and experience.

14. [Mr C] also gave evidence to the Tribunal. He is the brother of the applicant father and he arrived in Australia in 2013 and was granted a Safe Haven Enterprise visa in 2020. A copy of the Immigration Assessment Authority’s decision record in respect of [Mr C] indicates that he was found to be a refugee on the basis of his conversion to Christianity. It also noted that evidence of his Christian conversion significantly pre-dated the s 107 notices in the current reviews. [Mr C] gave evidence that he introduced the applicants to [Church] and [Ms B] and [Ms A] and that [Organisation 2] would not have been established without their suport. [Mr C] was known to the Department as an Iranian citizen before his visa was granted.

15. [Pastor D], [a] Pastor at [Church], gave evidence as to the family’s consistent attendance at the church, not just on a Sunday but also through the midweek fellowship group. He described their relationship to their faith group as one of family. [Pastor E], also of [Church], described the close relationship of the family to that church’s congregation, stating that the church was better for knowing the family and had learned much from them.

16. Other members of the community provided written character references. [Mr F] has known the applicant father since they both worked as [Occupation 2]s in a Melbourne hospital, stating that his prior experience in [Occupation 1] in Iran meant that he maintained a high standard of [work] and that he was also used as a translator for [specified people] on multiple occasions. [Mr F] speaks highly of the applicant’s character, work ethic and participation in the community. Similarly [Ms G] worked with the applicant father as a [colleague] and states that he has a positive and approachable manner and is friendly to staff, consumers and clients within the [work] environment.

17. [Mr H] states he has known the family since meeting them at a community event for Kurdish refugees in 2014, since which they have become close friends who often visit each other’s homes and discuss important community and life issues. He states the family are engaging, motivated and community-minded and actively committed to the values of democracy, civic and economic participation and often take leadership roles within their own community to promote these values.

18. [Mr I] has known the family since 2016 and speaks of their gratitude and relief at finding a home in a democratic country and being able to raise their family in safety and freedom. She is concerned particularly for the wellbeing of the applicant daughters if their visas remain cancelled and they lose their associated work rights.

19. In light of the evidence of the witnesses and character referees, the Tribunal accepts the family have made a significant contribution to the community since their arrival in Australia in 2011 and gives this factor weight against cancellation of the visa.

20. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

21. The cancellation of the visas would not result in any consequential cancellations under s 140 and this factor is not relevant to my decision.

    Whether the best interests of a child would be affected by cancellation, or consequential cancellation

22. The Tribunal is required to treat the best interests of the children affected by the decision as a primary consideration. While both [the fourth applicant] and [the third applicant] were young children when the family arrived in Australia, the time that has since elapsed means that only [the fourth applicant] is still a child.

23. There can be no doubt in this case that it is in [the fourth applicant]’s best interests that her own visa and those of her parents and older sister not be cancelled. She arrived in Australia aged [Age] and has grown up in this country. She is a product of Australia’s education system and speaks no Persian. As set out below, she faces the prospect of indefinite detention if the visa remains cancelled and the family do not voluntarily return to Iran. Along with her family members, she is embedded in a Christian church in Australia and that would not be permissible for her in Iran.

24. I treat [the fourth applicant]’s best interests as a primary consideration and I weigh this factor significantly against cancellation of the visas.

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

25. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

26. In this case the applicants were found to be persons to whom Australia owes protection under the Refugees Convention by an independent protection assessor in August 2012. The delegate who cancelled the visas in January 2020 stated that if the applicants’ visas are cancelled, an International Treaties Obligation Assessment would be completed by the Department before a decision is made to remove them from Australia. The delegate concluded that for this reason a decision to cancel the applicants’ visas would not necessarily cause them to be returned to Iran.

27. Amendments to s 197C of the Act since the delegate’s cancellation decision have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c)  none of the following apply:

    (i)  the decision in which the protection finding was made has been quashed or set aside;

    (ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

28. In this case the independent protection assessor found the applicants were owed protection as refugees in August 2012. The applicants were then permitted to make applications for the protection visas and those applications were finally determined when the applicants were granted the visas on 26 September 2012. In these circumstances s 197C(3) does not require or authorise the applicants’ removal from Australia unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.

29. In this case the protection findings made in 2012 have not been quashed or set aside, nor have the applicants requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicants no longer engage protection obligations under s 197D(2).

30. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicants are not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicants’ protection visas (and the resident return visa in the case of the applicant father) would not, of itself, lead to their removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

31. However, for the reasons set out below the Tribunal considers that cancellation may lead to prolonged detention.

    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

32. In considering the mandatory legal consequences to the cancellation decision, I note that if the protection visas held by the applicant mother and applicant daughters remain cancelled they will have very limited options to make any other visa applications onshore. Section 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application.

33. The situation for the applicant father is slightly different, as his visa cancellation relates to a resident return visa rather than a protection visa and therefore s 48A does not operate to prevent him from lodging a further protection visa onshore. However he is also an unauthorised maritime arrival who currently holds a bridging visa and s 46A separately prevents unauthorised maritime arrivals from making any valid visa application onshore unless the Minister deems that to be in the public interest and issues a written notice to the effect that s 46A does not apply to him.

34. The Minister’s powers to intervene pursuant to s 48A and s 46A are only exercisable by the Minister personally and are not compellable or reviewable.

35. DFAT reports that Iran has a global and longstanding policy of not accepting involuntary returns and has refused to issue temporary travel documents to facilitate the involuntary return of its citizens. While Iran and Australia signed a Memorandum of Understanding including an agreement to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia, that does not apply to the applicants, who arrived in Australia in 2011.[2]  Further, s 196 provides that unlawful non-citizens must be kept detained in immigration detention until removal. Therefore, I accept that the potential impact of cancellation is that the applicants may be liable to prolonged detention unless they decide to return to Iran voluntarily.

    [2] DFAT Country Information Report: Iran 14 April 2020 at 5.27

36. I accept the family will not return voluntarily given their continuing belief that they will be subject to persecution in Iran both for reasons of their political opinion set out in their original visa applications as well as their conversion to Christianity since their arrival. In any case their voluntary return to Iran in order to avoid indefinite detention in Australia may still constitute a breach of Australia’s non-refoulement obligations.[3]

    [3] XDJD and Minister for Immigration and Border Protection [2021] AATA 2882 at [101]; 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

37. I accept that detention will cause significant hardship to the applicants, particularly [the fourth applicant] and [the third applicant] who arrived here as young children and who are not responsible for the circumstances in which they find themselves. I further accept that prolonged detention will cause significant hardship to the applicant mother, who suffers from serious mental health conditions as set out above.

38. In making that assessment I note the body of psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. The Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to wellbeing accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[4]

    [4] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017

1. I consider this factor weighs significantly against the cancellation of the visa.

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

2. As noted above, the family have converted to Christianity since their arrival in Australia and the Tribunal has heard a significant amount of evidence as to their close relationship with their faith community at [Church]. There is also evidence before the Tribunal that the applicant has made pro-Kurdish and anti-regime statements on [Social media] since his arrival in Australia. He believes that his founding of [Organisation 2] in Australia will be perceived as pro-Kurdish political activity by the Iranian authorities.

3. Given the Tribunal’s conclusions above as to the protection findings that already apply to the applicants, it is not necessary for the Tribunal to re-assess their protection claims. However when assessing the degree of hardship that will be caused to the family if their visas remain cancelled, it is relevant to note DFAT’s advice that it is a capital crime in Iran for non-Muslims to convert Muslims and for this reason recognised Christian churches in Iran do not accept converts. The Iranian authorities closely monitor recognised Christian churches to ensure their adherence to the prohibition on converts. While unregistered house churches exist across Iran, they operate in secret because they are perceived by the Iranian authorities as a threat to national security and periodically raided. DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed.[5] For these reasons I accept that if the applicants are returned to Iran, they would be unable to practise their Christian faith openly and this would cause them hardship.

   [5] DFAT Country Information Report: Iran 14 April 2020 at 3.49

4. If the applicants’ visas remain cancelled, they will also experience hardship in the form of further isolation from their family overseas. I note in this regard the medical evidence indicating the applicant mother’s separation from her family has exacerbated her mental health conditions, as well as the applicant father’s evidence that his plans to reunite with his brothers in [Country] were cancelled when the family’s visas were cancelled.

5. I consider this factor weighs against the cancellation of the visa.

   EXERCISE OF DISCRETION

6. While I am required to have regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case, rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[6]

   [6] MIAC v Khadgi (2010) 274 ALR438 at [68]

7. I have considered the factors which weigh in favour of cancelling the visa, most significantly that the applicant parents knowingly provided the incorrect information about their Iranian citizenship in their protection visa applications in order to increase the chance of being granted that visa. The grant of the visa was based at least in part on their claim to be stateless and while the matter cannot be free from doubt, I consider that had the correct information been known they may not have been granted the protection visa.

8. However, in balancing all of the relevant factors I consider that the matters to which I am required to have regard weigh overall against cancelling the applicants’ visas.  In particular I give weight to the following matters:

   ·The family have been resident in Australia for 11 years and have made a substantial contribution to the community. The applicant father is an experienced [Occupation 1], an occupation deemed by the Australian government to be one which fills critical skills needs in Australia. Similarly the applicant daughter [the third applicant] is currently in the final year of her university studies in [Subject]. There is a significant amount of evidence before the Tribunal as to the good character of the applicants and their contribution to the community;

   ·At the time of the Tribunal’s decision, the applicants continue to be subject to a protection finding for the purposes of s 197C(3). As the 2012 decision finding they engage Australia’s protection obligation was finalised at that time, they cannot now be involuntarily removed from Australia unless Australia’s protection obligations towards them are re-assessed under the new provision set out in s 197D and they are found to be no longer owed protection by Australia. Any such re-assessment would need to consider the family’s sur place claims, including their conversion to Christianity and involvement in Faili Kurd activities in Australia which they claim would cause them to be targeted for harm in Iran;

   ·If the family’s visas remain cancelled, they will be unlawful non-citizens and liable for detention under s 189 of the Act. That detention will potentially be prolonged unless they decide to return to Iran voluntarily and the Tribunal has accepted that prospect to be remote;

   ·The Tribunal is required to treat the best interests of the children affected by the decision as a primary consideration and it has found that it is in [the fourth applicant]’s best interests that her own visa and those of her family not be cancelled;

   ·Detention will also cause significant hardship to the applicants, particularly [the fourth applicant] and [the third applicant] who arrived here as young children and who are not responsible for the circumstances in which they find themselves. Detention will also cause significant hardship to the applicant mother, who suffers from serious mental health conditions as set out above.

9. For these reasons I consider it appropriate to exercise my discretion not to cancel the applicants’ visas.

   CONCLUSIONS

10. For the reasons set out above, the Tribunal has decided that there was non-compliance by the applicants 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 visas should not be cancelled.

    decision

    In respect of [the first applicant] (2001420):

11. 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.

    In respect of [the second applicant] (2001418):

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

    In respect of [the third applicant] (2001416):

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

    In respect of [the fourth applicant] (2001419):

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

    Alison Murphy
    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.