2003733 (Refugee)

2003733 (Refugee) [2021] AATA 3255 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2003733
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Michael Hawkins AM
DATE OF ORAL DECISION:  29 June 2021
TIME OF ORAL DECISION:  10.50am (QLD time)
DATE OF WRITTEN RECORD:                28 July 2021
PLACE OF DECISION:  Brisbane
DECISION: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 28 July 2021 at 10:44am

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – incorrect information provided in application – undocumented, stateless Faili Kurd formerly residing in Iran – Iranian citizenship – access to education and medical services – atheism – mental health condition – harm risk – contribution to the community through work – implausible and inconsistent evidence – best interests of children – medical condition of son – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 46, 46A, 48A, 101, 107, 109, 116, 189, 198, 140, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

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

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with sections 101(a) and 101(b) of the Act by stating that he is an undocumented, stateless Faili Kurd. The delegate found that the applicant is not an undocumented, stateless Faili Kurd; that the applicant is an Iranian citizen; and likely obtained Iranian citizenship automatically at birth from his Iranian citizen father and was therefore an Iranian citizen at the time he submitted his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 29 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Ms A] and a friend, [Mr B]. The hearing was, by written consent, jointly held with his wife’s case, as the delegate’s decision in both cases was made on the basis of similar information. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal gave its decision on the review at the conclusion of the hearing on 29 June 2021. The following are the reasons for that decision.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the applicant has not complied with one or more of the relevant provisions.
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?
What were the particulars of the non-compliance set out in the notice?
On 12 December 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with sections 101(a) and 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:
Evidence of non-compliance
On [date] March 2011 you arrived [at Location 1] as an Illegal Maritime Arrival (IMA) claiming to be an undocumented, stateless Faili Kurd born in Iraq. You arrived [at Location 1] with your wife, [Ms A], and daughter, [Ms C].
On 25 May 2011 you submitted a request for a Protection Obligations Determination (POD). Along with your request, you submitted a statutory declaration dated 25 May 2011 outlining your claims for protection.
On 12 July 2011 the POD delegate found you engaged Australia's protection obligations. On the basis of this assessment, the Minister lifted the section 46A(1) bar to allow you to lodge a Protection (subclass 866) visa application .
You submitted a Protection visa application on 18 August 2011. On the application form titled Application for a Protection (Class XA) visa at Form 866 Part C you provided the following answers (in bold):
20. Your current citizenship
[no answer]
22. Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?
No
23. If you are stateless, how, when and why did you lose your citizenship?
My family was expelled from Iraq in the 1980s and they went to Iran for refuge. I have lived all my life in Iran.
41. I am seeking protection in Australia so that I do not have to go back to
Iran or Iraq
42. Why did you leave that country?
Please see my POD statement previously provided
In the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:
10. In Iran we had no rights. We were treated terribly by everyone. We continued to speak Kurdish at home as this was the language we spoke in Iraq. As we had never been educated in Iraq, we could not speak Arabic. We could also not speak Farsi in Iran because we were not properly educated.
11. When we arrived in Iran life was very difficult. As undocumented people, we had no rights. We were not allowed to go to school, however some teachers would feel sorry for us and allow me to go school occasionally.
12. We were not able to get any identification in Iran. We were followed by the government. I often heard about Fa/Ii Kurds [sic] being attacked by government authorities such as Komiteh, the Basijis and Sepah. The Iranian government did not accept we were Iranian and did not want us to be in their country.
13. We were not able to receive any services in Iraq [sic] - for instance, we could not get rations, or go to public hospitals or go to school. Everything we had to pay for, was more expensive than what an Iranian would have to pay.
17. My family never tried to get a Green Card because we had no documents to allow us to get a Green Card and because we knew that it would not allow us to work or go to school. You also had to pay a bribe to get a Green Card and because our family was poor, we could not afford the large bribe.
My understanding is that Fa/Ii Kurds were only given cards, White or Green, when they were taken by the Iraqi government to the Iranian border. Most of these people were in a refugee camp.
19. On one occasion I was beaten by my employer, an Iranian, because I had worked 16 hours but he had not paid me any money. When I went to ask for my money, he hit me on the jaw with a stone and then me with a tree branch on my wrist. I could not go to the public doctor and was treated by an old man from the village in the traditional way. I was in extreme pain and was not able to eat for more than a month.
20. I could not go to the police because I knew they would not help me because I was undocumented and a FalIi Kurd. The Iranian employer hit me because he knew he could because and that I have no rights in Iran to make a complaint.
27. In my Entry Interview it is written that I said that I tried to get identification documents in Iran. This is not correct. I do not believe I said that I "tried" to get identification documents. I know that my answer was that I did not try to get identity documents in Iran because I knew there was no point. There was no benefit in getting a Green or White Card because it did not mean we could work or send our children to school and at the end of each year we had to pay more money to renew the card.
29. We decided to come to Australia because my daughter could not get any education Iran and because I did not want her to suffer as we have suffered. She was refused from entering school, despite having done nothing wrong. We decided      that we had to leave so she did not have to live an inhumane and dangerous life in Iran like we had experienced.
43. What do you fear may happen to you if you go back to that country?
Please see my POD statement previously provided
In the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:
3. I fear that if I was forced to return to Iran I would be at risk of being harmed because of my ethnicity as a FalIi Kurd and my membership of a particular social group of stateless persons. FalIi Kurds have no rights in Iran and our treatment by the Iranian government is likely to lead to me being killed, imprisoned or unable to feed my family, because as an undocumented stateless person, I am unable to get any jobs or health care.
4. I also believe that if I were returned to Iraq I would be persecuted there for my ethnicity, as has happened in the past when my family was forced to leave Iraq for their safety. I also have no right to enter and reside in Iraq because I have no documents to show that my family is originally from that country.
32. Further, because I left Iran with a false passport and was undocumented while I was living Iran, I will not be allowed to re-enter Iran if I am forced back there. As a result I will be arrested at the airport and will be forced to spend time in detention or be subjected to extrajudicial execution by the authorities because I'm a stateless person and/or a FaiIi Kurd.
44 . Who do you think may harm/mistreat you if you go back?
Please see my POD statement previously provided
In the statutory declaration dated 25 May 2011 submitted with your POD request you stated that your treatment by "the Iranian government is likely to lead to [you] being killed, imprisoned or unable to feed [your] family". In addition, you stated if you returned to Iraq you would be killed as a result of your treatment by the Iraqi government who are "heavily influenced by Iran and... target Faili Kurds ".
45. Why do you think this will happen to you if you go back?
Please see my POD statement previously provided
In the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:
5. I am therefore not safe in either Iran or Iraq. Further, as an undocumented person, I no legal right to enter [sic] or reside in either of these countries.
31.I fear that I would be persecuted for my ethnicity or stateleness [sic] if I were forced to return to Iran. There is nowhere safe for me in Iran.
33. I cannot go back to Iraq because we have no documents and will not be able to enter that country, let alone get to the central government offices in Baghdad and attempt prove that my family lived in Iraq many and many years ago. I know the Iraqi government will not give me any ID cards because they will not be able to verify my identity.
46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
Please see my POD statement previously provided
In the statutory declaration dated 25 May 2011 submitted with your POD request you stated, in part, that you feared being subject to detention or "extrajudicial execution" by the authorities in Iran. You stated that nobody in Iran would care about your disappearance or murder. Further, you stated that the Iraqi government would "target" you as a person of Faili Kurd ethnicity rather than protect you if you returned to that country.
Based on your answers and meeting all other relevant criteria you were granted a Protection visa on 30 August 2011.
On 13 November 2015 you submitted an application to obtain Australian citizenship by conferral.
Subsequent to the submission of your citizenship application the following contrary information     came to the attention of the Department.
On 14 February 2017 you attended an interview with a departmental officer for the purposes of making a finding on your identity. The departmental officer noted your responses at interview raised serious concerns regarding the overall credibility of your claims for protection, particularly in regards to your claims to be a stateless and undocumented Faili Kurd.
Your responses at your identity interview are summarised as follows:
Name and place of birth
You identified yourself as [applicant name] born on [date]. You claimed that you were not known by any other names
You stated you were born in or around [year] according to the Persian calendar
You stated you were born in Iraq and resided there until you were [age] years of age when your family moved to Ilam, Iran, where you remained until departing for Australia in 2011.
Expulsion from Iraq
You stated you and your family stayed in a refugee camp in Iran "for one or two days"   before going to "some local places" following your expulsion from Iraq
The departmental officer put to you that in order to be released from the refugee camp your family would have required sponsorship from an Iranian citizen. You stated in response that your father had friends working on both sides of the borders who may have "noticed" you and sponsored your release
You stated that your family were released from the refugee camp in Iran without any identity documents
The departmental officer suggested to you that it was not plausible that the Iranian government would release someone from a refugee camp without documentation. They stated that the Iranian authorities issued green cards (refugee cards) to all refugees released from the refugee camps during that period to allow them to remain in Iran lawfully and documented. You stated in response that it was "not compulsory" to be issued a green card by the Iranian authorities on your release, rather that it was a "requirement of a sponsor" to prove their identity
You went on to state that due to Iran's high population the authorities are not "in control of identities unless you commit crime [sic] or do something wrong"
Education in Iran
You advised the departmental officer that you had completed five years of primary and two years of secondary education at Iranian public schools
The officer put to you that in order to enrol in an Iranian public school you required documentation. You claimed in response that you were "unable to physically enrol in the school [but] because of the kindness of the teachers [you were] able to attend the same classes with the others and just sit there for an education"
Family composition
You claimed that both your parents were born in Iraq and were stateless. You claimed they were both deceased and were buried in Iran
You claimed that you did not know where your paternal or maternal grandparents were born, however, you stated that it may have been Iran as your ancestors were originally from that region.
You stated you had [number of siblings] but that you have only remained in contact with your brother "[Mr D]" in Iran. You stated [Mr D] is married to an Iranian citizen
When asked who you made your "Alive call" to when you arrived [at Location 1] you replied that you had "no idea". It was then put to you that you called your brother, [Mr D’s nickname], in Iran whose identity had not been disclosed to the Department. You stated [Mr D’s nickname] is the nickname of your declared brother, [Mr D], and asked the officer to confirm with the assisting interpreter that [Mr D] was a common name in Iran. The interpreter stated that he had never heard the name [Mr D] before but that [Mr D’s nickname] was a very common name in Iran
Identity documents
You repeated your claims that neither you, your wife, your parents nor siblings had ever held any identity documents from Iran or Iraq
You claimed that you never applied for a green card in Iran due to the cost of the application and the requirement to pay bribes
You claimed that you could not apply for Iranian citizenship because "without any proper identification or proof of ancestors being a citizen of Iran there is no chance you can go and apply for citizenship and if you do so they would probably beat you up"
You claimed you did not have a marriage certificate from Iran because your ceremony was not official. You claimed, however, that you were provided a piece of paper from the Mullah which included photos of you and your wife and signatures from one or two witnesses
You claimed that both your parents were buried in Iran but that no official death certificates had been issued in this respect. You claimed they were buried on private land in Ilam, used by Faili Kurds to bury their elders
When the departmental officer suggested a person cannot be buried in Iran without a death certificate you replied that it was possible as "we [the Faili Kurds community] would just do ceremony ourselves [at night]. We just read parts of Koran. No holy man there. No special clergy"
It was put to you that documents are obtained in Iran at significant moments such as when someone enrols in school, when they have children, when someone dies and when someone gets married. Given this context, you were asked to clarify how your family, for many generations, were never issued any identity documents. You responded by stating that the departmental officer had "never experienced living in such regions that many people do lack any identities [sic], they have been living there for hundreds of years that lack any sort of any official identities. This is something that still exists"
When asked if you send money back to Iran to support your family you replied "No I don't. I only have to send money to a smuggler. I don't support anyone back home"
Passport
You claimed that you and your family departed Iran using false passports provided by a smuggler
You claimed you met the "smuggler's agent" at a hotel in Tehran where he provided the passports on the morning of your departure. You claimed you rested at the hotel "then they took us to airport for our departure". When asked if you saw the smuggler again after you were taken to the airport you stated "He didn't even go to airport with us got a taxi for us only [sic]"
You claimed you thought that your wife and daughter shared a passport although you were unsure because you did not look through the documents. You claimed you were stressed during your departure and were accepting of the documents so long as they enabled you to depart Iran. When asked how you passed through immigration at Tehran airport if you never looked in your passport you replied "They are immigration officers I don't have to look in the passport"
When asked what name was recorded on your Iranian passport you stated: "Most likely my name but I have no idea. I'm illiterate and have problem with my vision. It was our photos but I don't know the name"
You stated you did not need to look in your passport to provide details on your departure document as this was handed to you on the plane and someone else filled it out for you
You stated that you paid a total of $14,000US for three fake passports, airline tickets and smugglers in [Country 1], of which you paid $6000 to a smuggler in Tehran and $8000 to a smuggler in [Country 1]
You claimed that you passed through three security checkpoints at Tehran airport using your false passport without issue. You claimed that you thought the smuggler had arranged "some sort of pay off with security" although they did not travel with you. You stated you could bribe a needy person "with a couple of dollars" to get through security
The departmental officer suggested that your explanation of how you departed Iran was not plausible and that it was highly likely that you departed using a genuine passport. In response, you stated: ''I'm not a smuggler and I don't know how it's done most likely they steal the passports of others and attach our pictures to it and let us use them"
Your wife also attended an interview with a departmental officer for the purposes of making a finding on her identity on 14 February 2017. During this interview, your wife provided details of your family's life and departure from Iran, summarised as follows:
Your wife stated that she gave birth to your eldest daughter at home in Ilam. When asked if your family received any form of paperwork for your daughter's birth (official or unofficial), your wife stated "No, because nothing has been recorded about our family"
She claimed that your mother was buried in Ilam, however, she was unaware of your father's details
Your wife stated that you both obtained fraudulent passports and a number of tickets through a smuggler to facilitate your departure from Tehran towards Australia
She stated you were provided two fraudulent Iranian passports in your own names which included your own photographs, with your wife and daughter sharing a passport
Your wife explained that your family caught a bus from Ilam to Tehran city and met the smuggler in [Name 1] Square where he gave you the documents and tickets before travelling to Imam Khomeini Airport
Your wife went on to claim that, at the airport, you instructed her to wait aside as you approached the passport control area. She claimed you came back after some time and stated there were no issues and that your passports were only check once prior to your departure
The departmental officer asked your wife if you paid any money or bribes at the airport to which she answered "no, not at the airport"
Consideration of evidence
The grant of your Protection visa on 30 August 2011 was based on the finding that you engaged Australia's protection obligations due to the persecution and discrimination you claimed you experienced as an undocumented, stateless Faili Kurd formerly residing in Iran.
I consider a genuine stateless and undocumented Faili Kurd would likely be able to describe their distinct circumstances in Iran without significant issue. I note, however, the information you have provided to the Department concerning your circumstances in Iran over the course of your application history and at interview appears to be inconsistent and contradictory.

•

Country information indicates that Faili Kurd refugees who could present documentary proof of their Iranian ancestry or family links to Iran have been able to obtain Iranian citizenship¹. Moreover. under Iranian law (Article 976), children acquire Iranian citizenship automatically at birth from their Iranian citizen fathers (paternal line), regardless of whether they were born in Iran or outside of lran
While I note you claimed you did not know where your paternal or maternal grandparents were born you stated that it may have been Iran as your ancestors were originally from that region. Had your paternal grandfather held Iranian citizenship it therefore follows that, as per Iranian law, your father and yourself in turn acquired Iranian citizenship automatically at birth. I therefore consider it is likely that your family undertook the necessary steps to ensure your citizenship status was recognised on your arrival in Iran.
I note you stated at your identity interview on 14 February 2017 that your family were released from a refugee camp in Iran after one or two days because you were sponsored by an Iranian citizen who may have been friends with your father. However, I note this information was not detailed in your statutory declaration dated 25 May 2011 and it appears was provided only when prompted by the departmental officer.
In addition, I note you claim your family were released from the refugee camp without being issued a green card as these were "not compulsory". However, available information indicates that that the vast majority of Faili Kurd refugees who arrived in Iran in the 1980's received green cards³, contrary to your claims.
Based on the information before me, had your family ever been held in a refugee camp in Iran as you claimed I consider it is more likely you were released without being issued green cards as you were able to provide evidence of your Iranian citizenship.
I note you claimed you never applied for a green card in Iran as there was "no benefit" and it would not allow you to send your children to school and it required the payment of bribes. I note you claimed that although you were unable to "physically register" for school when you were young you were able to attend eight years of schooling at Iranian public schools "through the kindness of teachers".
I consider your claims are contradictory to available country information which indicates that being a registered and documented refugee in Iran, i.e. the holder of a green card, provided access to schooling and the ability to register births, deaths and marriages with the Bureau of Alien and Foreign Immigrant Affairs (BAFIA)4. I consider it is highly unlikely you were able to attend Iranian public schools for a period of eight years without issue based on the kindness of numerous people.
I consider this claim is inconsistent with your claim that life in Iran as an undocumented individual was very difficult and that you only attended school occasionally.
I consider it is more likely that you did not apply for a green card in Iran as you and your family were Iranian citizens. I consider it is more likely you were able to attend Iranian public schools without issue for a substantial period of time as you were a documented Iranian citizen. As an Iranian citizen I consider it is likely you had limited knowledge that being a registered and documented refugee in Iran provided access to schooling.
I note you claimed that your parents were not issued death certificates "because they lacked any proper identity documents". You also claimed that no death certificates were required as they were buried on private land in llam, at night, without an official ceremony or "holy man". I note country information regarding the death and burial of an undocumented refugee in Iran states the following:

.

Iranian authorities are not strict about the status of a deceased person for burial. Iran's Islamic law and tradition respects the deceased and one's corpse should not be left unburied. Therefore, an undocumented or documented stateless Shi'ite Iraqi refugee can approach a hospital or the local municipality or local mosque and request for the burial of the deceased in a local cemetery or even at Behesht Zahra. The official contacted at Behesht Zahra stated that for the burial of a non-Iranian citizen a confirmation of death certificate issued by a doctor is sufficient for burial
Noting in particular that "authorities are not strict about the status of a deceased person for burial" I consider it is improbable your parents were buried in the manner claimed and were not issued death certificates. I consider it is unlikely that members of the Faili Kurd community in llam would have reason to bury their relatives in the manner you described, without an official ceremony, given the above context.
I note you claimed that you and your family departed Iran using false passports which you collected from a smuggler at a hotel in Tehran. You claimed you paid the smuggler $14,000US for your passports and tickets to depart Iran, of which $8000 went to a smuggler in [Country 1]. I note you claim that you never looked in your passport after obtaining it from the smuggler and that you passed through three checkpoints at Tehran airport without issue. You explained you thought "some sort of pay off with security" had occurred to facilitate your departure through the airport.
I note your wife explained at her identity interview on 14 February 2017 that you collected the purportedly false passports from the smuggler in [Name 1] Square, without mention of a hotel. Your wife claimed the passports were issued in your own names and contained your own photographs. She reiterated that no money or bribes had been paid at the airport.
I have given consideration to the following country information which indicates that it would be extremely difficult to exit Imam Khomeini International Airport in Tehran using fraudulently issued documents and by bribing officials:
"According to an employee of a Western embassy, most Iranians who end up as illegal migrants have left Iran with their original documents... the source did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros .... The possibility of bribing one's way through the airport was rejected by a well-educated Iranian woman with links to international communities. Referring to the very strict security, it was considered that this would be extremely difficult'
I consider your claimed method of departure from Iran is contradictory to available country information. Moreover, your account of your departure does not appear consistent with your wife's claims to have obtained the purportedly false passports in [Name 1] Square rather than a hotel. I consider it is unlikely you would fail to look in your passport throughout your departure given your claimed stress and fear of Iranian authorities.
Based on the available information for Khomeini International Airport in Tehran I do not consider it is plausible that a smuggler could bribe airport official with "a couple of dollars" as you claimed to facilitate the departure of a person using a false document, particularly noting in your claimed circumstances you were not accompanied by the smuggler. Moreover, if you were genuinely an undocumented and stateless individual I consider you would have no formal information recorded in Iran. I therefore consider it is implausible you were able to pass through three security checks at Tehran airport using fraudulent passports, issued in your own name, given it is unlikely the information contained on those documents would could be verified on any system.
I consider it is more likely you provided inconsistent and contradictory information regarding your departure from Iran because you departed using your own legally obtained, genuine Iranian passports.
I note you claimed at your identity interview that you do not send money or support anyone in Iran. Information before the Department, however, indicates that you have made financial transactions to your brother [Mr D’s nickname], otherwise known as [Mr D], and your mother-in-law, [Ms E], in Iran.
Information before the Department indicates that you made financial transactions to Iran to your brother [Mr D’s nickname], otherwise known as [Mr D], and your mother-in-law, [Ms E] (spelled '[alternative spelling of Ms E]' in your wife's Protection visa application). Financial information reports indicate these transactions were made through [Agency 1] for the purpose of "helping family" between 17 October 2012 and 27 March 2015.
Information available on the [Agency 1] website ⁷ indicates that when transferring money to an individual in Iran you must provide their bank account details, home address and phone number. Country information indicates that an Iranian National Identity Card (NIC) is "compulsory for a range of activities, including passports and driver's licences and using a bank"⁸ . A NIC or an Iranian birth certificate (shenasnameh) are required whenever it is necessary to prove identity in Iran and "not having them will prevent individuals from being able to complete their business"⁹. Noting the available country information and the frequency and period with which transactions were made to your brother and mother-in-law in Iran I therefore consider it is likely that they hold Iranian NICs and were required to present these cards to confirm their identity when collecting the money transferred to them, contrary to your claims.
I note you claim that your brother [Mr D] was married in Iran to an Iranian citizen. I also note your daughter, [Ms C], was born in Iran prior to your departure. Although documentation is issued in Iran at significant moments such as when someone enrols in school, gets married, gives birth or when someone dies you claimed that none of your family members were ever issued identity documents in Iran or Iraq, even in cases where authorities were not strict about a person's status. Based on the information before me, I consider it is more likely you have withheld identity documents issued to you and your family in Iran and provided misleading information to the Department in order to strengthen your claims for protection in Australia.
On the basis of all the evidence before me I consider you have provided inconsistent and contradictory information to the Department over the course of your visa application history and at interview. I consider your explanations when presented with contrary Iranian country information at your identity interview on 14 February 2017 indicate you were not familiar with the experience of an undocumented and stateless Faili Kurd residing in Iran.
I consider you provided inconsistent and contradictory information to the Department because you are an Iranian citizen of Kurdish ethnicity. As an Iranian citizen you would be able obtain an Iranian passport and would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.
Non-compliance with section 101(a)
Section 101(a) of the Act requires a non-citizen to fill in or complete their application form in such a way that all questions on it are answered. Based on the above information, it appears that you did not answer all questions on your Protection visa application. Specifically, I have identified the following instance of possible non-compliance with section 101(a) of the Migration Act 1958:
At question 20 of Form 866 Part C when asked 'Your current citizenship' no answer was provided. Based on the information before the Department I consider the correct answer at question 20 is Iran/Iranian. As you did not provide an answer to question 20 it appears this unanswered question does not comply with section 101(a).
Non-compliance with section 101(b)
Section 101(b) of the Act requires a non-citizen to fill in or complete their application form in such a way that no incorrect answers are given or provided. Based on the above information, it appears that you have provided incorrect information to the Department on your Protection visa application. Specifically, I have identified the following instances of possible non-compliance with section 101(b) of the Migration Act 1958:
At question 22 of Form 866 Part C when asked 'Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?' you answered" No". I consider this answer is incorrect as the information before the Department indicates that you are an Iranian citizen who holds the right to enter and reside in Iran.
At question 23 of Form 866 Part C when asked 'If you are stateless, how, when and why did you lose your citizenship?' you answered" My family was expelled from Iraq in the 1980s and they went to Iran for refuge. I have lived all my life in Iran". I consider this answer is incorrect as the information before the Department indicates that you are an Iranian citizen and not stateless.
At question 41 of Form 866 Part C when asked 'I am seeking protection in Australia so that I do not have to go back to?' you answered" Iran or Iraq". I consider that as an Iranian citizen you would not fear returning to Iran as an undocumented and stateless Faili Kurd nor would you be required to return to Iraq. As such, I consider this answer is incorrect.
At question 42 of Form 866 Part C when asked 'Why did you leave that country?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not leave Iran for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. As such, I consider this answer is incorrect.
At question 43 of Form 866 Part C when asked 'What do you fear may happen to you if you go back to that country?' you answered "Please see my POD statement previously provided".
I consider that as an Iranian citizen you did not fear harm in Iran or Iraq for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. Further, as an Iranian citizen I do not consider you departed Iran using a fraudulent Iranian passport. As such, I consider this answer is incorrect.
At question 44 of Form 866 Part C when asked 'Who do you think may harm/mistreat you if you go back?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not genuinely fear harm or mistreatment by the Iranian or Iraqi governments for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. As such, I consider this answer is incorrect.
At question 45 of Form 866 Part C when asked 'Why do you think this will happen to you if you go back?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you would not be persecuted in Iran due to your ethnicity or as a stateless person. As an Iranian citizen I do not consider you would be required to return to Iraq. As such, I consider this answer is incorrect.
At question 46 of Form 866 Part C when asked 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not require protection by the Iranian authorities for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. Similarly, as an Iranian citizen I do not consider you would be required to return to Iraq and therefore would not need the protection of the authorities that country. As such, I consider this answer is incorrect.
Based on the above information, it appears you did not comply with section 101(a) and section 101(b) of the Act as you did not fill in or complete your application for a Protection visa in such a way that all questions were answered and correct.
If you have failed to comply with the requirements of section 101(a) and section 101(b) your Protection (subclass 866) visa is liable for cancellation under section 109 of the Migration Act 1958 .

The delegate notes in the NOICC that they considered that the applicant has not complied with section 101(a) of the Act as he has provided incorrect answers to question 20 of the Form 866 Part C of his application for a protection visa.
The delegate also noted in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 22, 23, 41, 42, 43, 44, 45 and 46 of the Form 866 Part C of his application for a protection visa.
If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided, his visa may be cancelled. The NOICC notes that by failing to comply with sections 101(a) and 101(b) of the Act, the applicant’s Class XA, Subclass 866 (Protection) visa is liable for cancellation under s.109 of the Act.
Response to the NOICC
The applicant and his wife jointly responded to the NOICC through their representative on 17 January 2020. The delegate summarised the applicant’s response as follows:
In his response to the Notice of Intention to Consider Cancellation (the Notice) the visa holder maintains that he is a stateless person as claimed in his Protection visa application and is not an Iranian citizen.
The visa holder notes the contention that he is an Iranian citizen outlined in the Notice is based largely on the answers he and his wife gave at their identity interview. While he acknowledges this interview was undertaken with the assistance of an interpreter, he claims he was unable to understand some of the questions posed to him and disagrees that he gave some of the answers quoted. Further, he claims that he “was not explained” the purpose of the identity interview and attended believing it was a routine part of the citizenship process.
The visa holder claims that there is a “very real potential” there was a misunderstanding between himself and the identity interviewer which led to erroneous conclusions “based on a subjective view rather than an objective one”. He claims that as there would be a substantial delay to obtain a copy of the interview recording under the Freedom of Information Act he is “not able to comment on any of the adverse information presented”. As such, he suggests that “very little, if any, weight” should be placed on the identity assessment developed from the answers he gave at his identity interview.
The visa holder notes that it is difficult to demonstrate that he is stateless as he would have to prove he does not have identity documents. In response to the Notice he and his wife have presented two documents, “a religious marriage certificate without any government stamps only issued to people who are not able to present identity documents to register their marriage officially and the other an alien resident identify card issued by the Ministry of the Interior to only those who are not Iranian nationals”.
In addition, the visa holder notes he and his wife have provided eight references from people who have known them for an extended period “which attest to their good character”. The visa holder claims that greater weight should be given to these references rather than the assessment of the identity officer who he spent little time with and who “quickly formed a view [he was] not telling the truth about [his] identity.
The visa holder cited case law established in Zhao v MIMA (Zhao) which found the following:
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 because 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.
The visa holder asserts that the court’s comments, although concerned with cancellations under section 116 of the Act, applies equally to cancellation under section 109. He claims that the Department has “taken the position of speculating” about his citizenship status and placed the onus of proof on himself, noting particularly that no document has been cited which shows “incontrovertibly that the applicant is Iranian”.
The visa holder contends that the Department has not produced “reasonably compelling evidence of the existence of a fact attracting the conclusion that there has been non-compliance as described in the section 107 notice”, as established in case law Mian v MILGEA (1992) 28 ALD 165, and, as such, the grounds for cancellation do not exist.
The visa holder claims that “[s]uspicion, or the existence of cogent opinion as to a high likelihood that the applicant is an Iranian national is insufficient of itself in [sic] to decide that there has been non-compliance as described in the notice”. The visa holder strongly denies the allegation that he is an Iranian citizen and asserts that no evidence has been provided to establish this fact with certainty.
The applicant submitted the following reasons why the visa should not be cancelled:
In response to the Notice the visa holder submits that he and his family have resided in Australia for a period of ten years. He claims he and his family have established their lives in Australia and have “always been good people of good character and have always abided by the laws of this land”. Further, he notes that his children have resided in Australia during their formative years.
The visa holder claims he and his family have “made contributions to the Australian community and have been involved with community activities and volunteer work over the years and are spoken about very highly and valued by other members of the community”. In support of his claim the visa holder has submitted eight character references from friends and community associates.
The applicant had submitted the following documents:
·written submissions from his representative;
·his identity documents, being a copy of his religious marriage certificate and Queensland adult proof of age card;
·his wife’s identity documents, being a copy of her Iranian national identity card, religious marriage certificate and Queensland driver licence; and
·eight character references from friends and community associates.
Departmental decision to cancel the applicant’s visa under s.109 of the Act
The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 14 February 2020. The Department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to give correct information regarding his identity and protection claims in Form 866 Part C of his protection visa application. The Department made the following findings:
I note the visa holder maintains that he is an undocumented, stateless Faili Kurd. I note he strongly disputes the assertion that he is an Iranian citizen and claims that the Department has not provided sufficient evidence establishing this fact with certainty. Further, I note the visa holder’s claim that the Department has not produced “reasonably compelling evidence” of his non-compliance as described in the section 107 notice.
While I have given consideration to the visa holder’s response to the Notice, I do not accept his contention that little to no weight should be placed on the identity assessment developed from the answers he gave at his identity interview. Although the visa holder claims that the he had no prior knowledge of the identity interview’s purpose departmental records confirm he was sent a letter dated 20 January 2017 titled Notification of Interview. This letter explicitly stated that the visa holder was “required to attend an interview for the purposes of identity verification” and listed the date and time for his attendance. The letter goes on to state that the identity interview was “not for the purposes of assessing [his] application for Australian citizenship”.
Based on the details contained in the Notification of Interview letter and the visa holder’s subsequent attendance at that interview I am therefore satisfied he was sufficiently notified of the identity interview’s purpose.
Similarly, I do not accept there that there was a “very real potential” there was a misunderstanding between the visa holder and the identity interviewer as claimed. I note the visa holder confirmed in his response to the Notice that the identity interview was conducted with the assistance of an interpreter. While I acknowledge the visa holder has not requested a recording of the identity interview under the Freedom of Information Act, I have reviewed this recording given the claims raised in response to the Notice. I find his answers at this interview make clear that he understood and had no objection to the Farsi interpreter in attendance. In particular, I note the following exchange taken verbatim from the identity interview recording:
Interviewing officer: We have booked a Farsi interpreter for you today. This is to ensure you are able to understand the question and also clearly communicate your responses. [Interpreter translation]
Visa holder’s response in English: Absolutely.
…
Interviewing officer: If you do not understand something that I say or have difficulties with the interpreting please let us know immediately.
[Interpreter translation]
Visa holder’s response in English: Yes.
Interviewing officer: The interpreter will also let us know if they need clarification. Do you understand the interpreter?
[Interpreter translation]
Visa holder’s response in English: Yes.
Interviewing officer: Do you have any objections at this time to the interpreter? [Interpreter translation]
[Non-verbal answer from visa holder]
At the commencement of the identity interview the visa holder was given the opportunity to respond to any concerns regarding the interview’s content and the interpreter in attendance. The visa holder confirmed his understanding and made no objection to the interpreter. I therefore do not find there was a “very real potential” for misunderstanding at the identity interview. Similarly, I find it is unlikely that he “guessed” his answers due a misunderstanding or stress as he was also advised at the commencement of the interview that he could take a break at any time.
I note the visa holder broadly states that he disagrees that he provided some of the quotes attributed to him. However, I am unable to consider the visa holder’s claim as he does not specify any particular quote or representation taken from the interview which may be incorrect. Similarly, I find the visa holder’s claim that the interviewing officer made erroneous conclusions “based on a subjective view” to be unsupported.
Based on the evidence before me I find the visa holder’s claim that there was a “very real potential” there was a misunderstanding at the identity interview to be self-serving. I find the visa holder claimed the interview was carried out in a manner which was unclear and made him feel stressed as a way to explain or excuse the answers he provided. On the basis of all the evidence before me I do not find there is a reasonable basis to place little to no weight on the identity assessment.
I have given consideration to the visa holder’s claim that there is insufficient evidence available to the Department to reach a degree of satisfaction that he is an Iranian citizen and did not comply with section 109 of the Act. While I accept that the visa holder may have difficulty providing identity documents if he was genuinely stateless, his description of his distinct life story should nevertheless be consistent and align with known country information for stateless and undocumented Faili Kurds formerly residing in Iran. Were the visa holder a genuine stateless and undocumented Faili Kurd formerly residing in Iran the elements of his life story would be verifiable and create a consistent picture of his identity, allowing the delegate to reach a logical level of satisfaction about his claims.
I find the information before the Department and provided by the visa holder at his identity do not support his claims to be a stateless and undocumented Faili Kurd. In particular, I find the visa holder’s claims at his identity interview regarding his upbringing and education in Iran, the burial of his parents, his lack of identity documents and green card held by the vast majority of Faili Kurd refugees in Iran contradict Iranian country information. The visa holder’s explanations when presented with contrary Iranian country information indicate he was not familiar with the experience of an undocumented and stateless Faili Kurd residing in Iran.
Taking into account country information, I find the visa holder’s claim that he and his family departed Iran without issue on false Iranian passports issued in their own names to be implausible. I find this as country information indicates it would be extremely difficult to exit Imam Khomeini International Airport in Tehran using fraudulently issued documents and by bribing officials. Moreover, I find it is unlikely the information contained on those documents could be verified on any system were the visa holder and his family genuinely stateless. I note the visa holder has not addressed his departure from Iran in his response to the Notice.
Moreover, information before the Department indicates that visa holder has made financial transactions to his family in Iran. Country information indicates that in order to collect this money and to use a bank in Iran an Iranian NIC is “compulsory”. I therefore find it is likely the visa holder’s brother and mother-in-law were required to present their NICs to confirm their identity when collecting the money transferred to them, contrary to the visa holder's claims that his family do not possess Iranian identity documents. The visa holder has failed to clarify this information in response to the Notice.
The visa holder has provided insufficient explanation about why he was not issued any Iranian documents. Although documentation is issued in Iran at significant moments such as when someone enrols in school, gets married, gives birth or when someone dies he claimed at his identity interview that none of his family members were ever issued identity documents in Iran or Iraq, even in cases where authorities were not strict about a person’s status. I consider the visa holder’s claim is unpersuasive and not supported by known country information. I note he has not sought to clarify this information in response to the Notice.
Based on all the information before me, I find the visa holder provided inconsistent and contradictory information to the Department because he is an Iranian citizen of Kurdish ethnicity. I find the visa holder has likely withheld identity documents issued to him and his family in Iran and provided misleading information to the Department in order to strengthen his claims for protection in Australia.
I find the visa holder likely obtained Iranian citizenship automatically at birth from his Iranian citizen father under the provision of Iranian law (Article 976) and was therefore an Iranian citizenship at the time he submitted his Protection visa application.
As an Iranian citizen the visa holder would be able obtain an Iranian passport and would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.
While I have given consideration to the eight character references submitted with the visa holder’s response to the Notice I note they neither address nor support his claimed status as an undocumented, stateless Faili Kurd. As such I do not consider these submissions are relevant to the grounds for cancellation.
Similarly, I have given consideration to the religious marriage certificate submitted with the visa holder’s response to the Notice. I note, although the visa holder claimed at his identity interview that he was not known by any other name, nor did he include any other name he may have been known by in his Protection visa application, the marriage certificate lists he and his wife as
“[applicant’s given name with different family name]” and “[applicant’s wife’s given name with different family name]” respectively. Further, this document appears to have been translated from Arabic, a language the visa holder and his wife have not indicated they speak. Based on the inconsistencies noted I am not satisfied this document contains verifiable information which indicates the visa holder is a stateless and undocumented Faili Kurd.
As the visa holder is an Iranian citizen and was so at the time he submitted his Protection visa application I find he would not fear harm or mistreatment in Iran for reasons of being an undocumented, stateless Faili Kurd.
As the visa holder is an Iranian citizen and did not provide an answer to question 20 of Form 866 Part C, I find this unanswered question does not comply with section 101(a). Similarly, I find the visa holder did not comply with section 101(b) of the Act as he provided incorrect answers in response to questions 22, 23, 41, 42, 43, 44, 45 and 46 of Part C of Form 866.
As the visa holder has not complied with sections 101(a) and 101(b) of the Act I am satisfied that grounds exist for cancellation of his Protection visa under section 109 of the Migration Act 1958.
Statutory Declaration dated 24 June 2021
The applicant provided a statutory declaration, dated and signed by him on 24 June 2021.
Identity assessment interview
The applicant stated he understood that the delegate made the decision to cancel his visa based on country information and his identity assessment interview that took place in 2017.
The applicant claims that he thought he would be asked simple questions about his citizenship application for 15 minutes and that he was totally unprepared to recall details from his past. He claims to have been shocked to be interviewed again about his protection claims, family composition and everything else for three hours.
The applicant claims he was very stressed during the interview. He claims he had his child sitting with him and that he was questioned by a panel of three interviewers, who intimidated and confused him.
The applicant claims that he finds it strange that the Department would make such an important decision about someone’s life based on general country information.
Name and place of birth
The applicant claims his name is [applicant name]. He claims he was born on [date] in Iraq and moved to Iran with his family when he was about [age] years old in or around 1980. He claims his parents were expelled by the Iraqi government. The applicant claims he had no control over his parents’ decision to move to Iran after their expulsion and that he should not be held responsible or questioned about decisions made by his parents over 40 years ago.
The applicant claims that in Iran, his parents did not apply to obtain alien cards from the Iranian government, because they were too scared. He claims his parents did not trust the Iranian authorities as they had heard rumours that the only reason the Iranian authorities were registering Faili Kurds was so that they could keep a record of us for deportations back to Iraq in the future.
The applicant claims that where he grew up in Iran, having an identity card was not an essential requirement of life and that he learned how to live without identity cards by always trying to stay away from authorities.
Education in Iran
The applicant claims he did go to school in Iran, but that he was not officially enrolled in the school. He claims that this is the reason he did not receive any qualifications from the school he attended in Iran.
Family composition

The applicant claims he has provided correct information about his parents, siblings and grandparents.
The applicant claims that [Mr D] is his brother who is also known as ‘[Mr D’s nickname]’. He claims he never said during the identity assessment interview that he did not call his brother from [Location 1]. He claims ‘[Mr D]’ is the name given to him by his parents when he was born. He claims [Mr D] did not like this name, because it was a common Kurdish name. He claims [Mr D] likes to be called ‘[Mr D’s nickname]’ as it is a more common Iranian name.
Identity documents
The applicant claims he and his family did not have identity documents in Iraq or Iran, because neither country accepted him and his family as citizens, as we were not able to provide the origin of our ancestors.
The applicant claims that there are still people who are born in Iran, live there and die there without ever holding identity documents. He claims it is possible to live, work, study, own a mobile phone, get married, have children, die and be buried in Iran without ever owning a single identity document.
Passport and departure from Iran
The applicant claims they left Iran using passports that had been organised by a smuggler. He claims he does not know how the smuggler organised their passports. He claims it was possible 10 years ago to leave Iran on false passports because they did it.
The applicant claims to have a [vision impairment]. He claims he did not look at his passport because he trusted the people smuggler. He claims he had provided the smuggler with his photo.
The applicant claims he cannot comment on how the passports were made, which authorities were paid at the airport and how their departure was possible without being detected by the Iranian authorities, because he was not involved in those parts of the arrangement. He claims he paid the smuggler to take care of it.
The applicant claims that he and his family did leave Iran with the passports the people smuggler made for them and that they were never issued with their own genuine passports, because they never applied for it.
The applicant claims that many things are possible in Iran when you pay money. He claims that there are always exceptions to the rules in Iran. He claims there were misunderstandings and confusion with the responses he provided in his 2017 interview. For example, he claims that when he said, “it was possible to bribe a needy person ‘with a couple of dollars’ to get through security”, he did not mean that was how he left Iran. He claims to have paid what he considers a lot of money at that time to leave Iran.
Financial transactions to Iran
The applicant claims to have never denied sending money to Iran during his 2017 interview, contrary to what the delegate has claimed. He claims he was asked if he was supporting anyone financially in Iran and he replied, “no”. He claims he did say however that he had sent money to people overseas.
The applicant claims to have never said he sent money to the smuggler. He claims he actually said he borrowed money from people to pay the smuggler and that he paid the debt to those people after he came to Australia.
The applicant claims that many years ago he sent money overseas to people, including his [brother], however he does not recall when it was and how much it was.
Marriage certificate
The applicant claims his marriage certificate is a religious marriage certificate which was re-issued based on the original document. He claims the reason his and his wife’s names are different is that the order of the names are different in Arabic. He claims that in the Arabic language, the person’s name is first, then their father’s name and then their grandfather’s name. He claims surnames are not used.
The applicant claims the reason this document is in Arabic is because it was issued by the religious marriage celebrant office who were connected with Majlis Aalaa, the Islamic Supreme Council of Iraq. He claims that they had no other option for their marriage to be recognised.
The applicant’s ethnicity
The applicant claims he and his parents are Faili Kurds. He claims he was unable to obtain any identity documents in Iran, because he could not prove ancestorial connections to Iran. He claims the assumption that he is not a Faili Kurd is wrong. He claims he does not know how he is expected to prove, without documents, that he does not have any documents.
The applicant claims that he has not provided any false information in his request for protection in Australia.
Why the applicant does not want his visa to be cancelled
The applicant claims he does not want his visa to be cancelled because he and his family have lived in Australia for over 10 years now and consider themselves part of the wonderful community.
The applicant claims the visa cancellation has caused his family significant hardship. He claims his children have suffered a lot from living with very stressed parents who are emotionally shattered and tired.
The applicant claims that they are good people of good character and have always abided by the laws of Australia. He claims they have never breached the law in Australia in any way.
The applicant claims his two youngest children were born in Australia and are Australian citizens.
The applicant claims his oldest child is now [age] years old and that she was only a small child when she left Iran. He claims she has a faint memory of Iran and she considers Australia to be home. He claims she could not live in Iran because she does not know the culture or Islam. He claims they did not teach his children anything about Islam, because they do not believe in Islam anymore.
The applicant claims he does not believe that God exists anymore because he never listened to his prayers. He claims to only believe in humanity and good deeds.
The applicant claims his oldest daughter has been negatively affected by the cancellation of their visas. He claims she used to be a good student, a leader at school and a happy and sociable child, whereas now she locks herself in the room most of the time. He claims she cries a lot, does not want to go to school and refuses to see the councillors. He claims the councillors have offered to come to their home, but she refuses.
The applicant claims that he and his wife take antidepressant tablets and see psychologists. He claims he has tried to take his own life, because he is ashamed that he cannot help his family anymore. He claims his work rights have been taken from him. He claims to feel hopeless and that everything is out of his hands. He claims he is ashamed in front of his children and that he feels terrible seeing his oldest daughter suffer. He claims to be disappointed in himself. He claims that his oldest daughter is only a child and that she should have a better life.
The applicant claims that since living in Australia, he has learned English and worked very hard to integrate into the community and make as many positive changes as he can. He claims to have established a business with the help of his wife.
The applicant claims he has made contributions to the Australian community and that he has been involved in community activities and volunteer work over the years. He claims to be spoken about very highly and valued by other members of the community.
The applicant claims he has never committed a crime in Australia or anywhere else in the world, and that he will not do so in the future.
The applicant claims he has never breached any of his visa conditions whilst in Australia and that he will not do so in the future.
The applicant claims he does not want his visa to be cancelled. He claims he cannot go back to Iran, because it is not his country and he is not welcome there.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.   The applicant’s protection visa application form (visa application). The relevant protection visa was granted to the applicant on 30 August 2011;
b.   The applicant’s identity documents being a copy of his religious marriage certificate, Queensland adult proof of age card, Australian visa evidence card, Medicare card and Australian pensioner concession card provided to the Department
c. The Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 dated 12 December 2019 (NOICC);
d. The Notification of Cancellation under Section 109 of the Migration Act 1958 dated 14 February 2020 (delegate’s decision record);
e.   The application for review form dated 26 February 2020, which did include a copy of the delegate’s decision record;
f.    Department file [number] concerning the cancellation of the applicant’s protection visa;
g.   All documents submitted to the Department of Immigration and Border Protection (the Department) in support of the applicant’s protection visa application and NOICC response, including written submissions from his representative dated 17 January 2020, eight character references from friends and community associates and his statement of claim dated 25 May 2011;
h.   The applicant’s application for Australian citizenship form, which was completed on 12 November 2015;
i.    All documents submitted to the Tribunal in support of the applicant’s application for review, including a statutory declaration from the applicant dated 24 June 2021, Australian citizenship certificates for two of his children, a psychiatrist report dated 8 June 2021 and five character references; and
j.    Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 29 June 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Iran, published on 14 April 2020 (DFAT Report on Iran).
Hearing:
The Tribunal conducted an in-person hearing on 29 June 2021. The hearing was, by written consent, jointly held with his wife’s case, as the delegate’s decision in both cases was made on the basis of similar information. The applicant attended the hearing with his representative. The Tribunal also received oral evidence from his wife and a friend, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Home Affairs (the Department) to cancel his protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in his application for a protection visa. As a result of this, the applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of sections 101(a) and 101(b) of the Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his identity and his protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a Class XA, Subclass 866 (Protection) visa on 30 August 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and his representative that the Tribunal might take the applicant’s claims for protection in his protection visa application lodged with the Department of Home Affairs on 18 August 2011 as having been read. The applicant and representative agreed.
The Tribunal took evidence from a witness, Mr [B] .
Mr [B] spoke glowingly of his association with the applicant and his wife. He said how his extended family knew the children of the applicant and his wife. He spoke of how dedicated the applicant was to his children.
In particular, he spoke of the applicant’s daughter with whom he was very familiar. He spoke of her being a high achiever, being the school vice-captain and destined for university. He mentioned that she was unable to drive and as a consequence of the of the cancellation of the visa, was now no longer able to attend university. He saw the diminishing of a person before his eyes.
He spoke of the family’s integration into the community, and how crushing it would be for the children to have to return to Iran.
Section 438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that the material contained in folios 3-12, 113-156 and 162-174 of Department file [number deleted] should not be disclosed to the applicant because the disclosure of these documents would be contrary to the public interest. The certificate further states that the disclosure of these documents would be contrary to the public interest, because disclosure of these folios may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of these methods.
The Tribunal noted that it had provided to the applicant and her representative a copy of the certificate prior to the hearing and they both confirmed having received it.
The Tribunal considered the validity of the Certificate. It determined that to declare the Certificate invalid would have the effect of revealing confidential investigative methods.
Accordingly, the Tribunal determines that the certificate is valid. The Tribunal is satisfied that in weighing the public interest aspects against the interest of the applicant being provided natural justice, the relevant information from these folios which is relevant to the decision had already been disclosed to the applicant in the delegate’s decision record. The Tribunal considers there are compelling public interest reasons for not disclosing the information in the folios, and the applicant’s interest of having access to the documents does not outweigh the potential harm to the public interest in the event the documents are disclosed.
However, the Tribunal advised the applicant and representative that the information was contained in an Identity Assessment Report, AUSTRAC Report and Centrelink records and the information had effectively been summarised in the NOICC and then discussed in the delegates decision. The Tribunal advised that it would be giving the material contained in the document weight only to the extent that its contents had been referenced in the NOICC and the delegate’s decision.
The representative accepted the determination.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
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]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
The Tribunal noted the applicant’s submission referenced above.
The applicant maintains that he provided correct information in his Protection Visa application and further maintains that there was no non-compliance with s.101(a) or s.101(b) of the Act as identified by the delegate in the NOICC.
The Tribunal discussed with the applicant the evidence before the delegate and the decision of the delegate. The Tribunal discussed the inconsistencies in evidence put before the delegate and the concerns the delegate had with that evidence.
The Tribunal noted the production of an identity card from the applicant’s wife. It noted that she had stated in her most recent Statutory Declaration that she was the holder of both a green and white identity card. The applicant’s wife had stated in her protection visa application that she had no identity documents, but produced to the delegate a copy of her green card and a document relating to her marriage.
The applicant’s wife stated that the marriage document was not an official marriage certificate, but a religious document signed by the mullah.

She argued that the production of the Green card, date of issue being 2003, was evidence that she was not an Iranian citizen.
The Tribunal agreed that that may have been the case, but it was the issue of her husband’s citizenship that would be determinative of the issue, for if the Tribunal was of the view that he was an Iranian citizen, then by her marriage, and the operation of Article 976 of the Civil Code of the Islamic Republic of Iran, she too would be an Iranian citizen.
The representative accepted that point.
The Tribunal discussed the various identity issues with the applicant.
He maintained vehemently that he had no identity documents. He stated he was a child of the war and that the family moved from Iraq to Iran. He maintained that his family moved when he was about [age] years of age. He says that his memory is not great, but believes that his parents did not apply for alien cards as they were too scared of the Iranian authorities. He recalls that they believed that the Iranian authorities only gave ID cards to Faili Kurds to keep track of them and that they would ultimately return them to Iraq.
The applicant argued that as he progressed through life, he learnt that he didn’t actually need an identity card to survive, as long as he stayed away from the authorities.
He also stated that as he became an adult himself, he did not want to get an identity card as he feared then having to do military service.
The representative argued that it is very difficult to argue against not having an identity card when there is simply no evidence one can produce to prove they don’t have an identity card.
The Tribunal considered Country Information from the DFAT Report:[9]
Every permanent resident of Iran over the age of 15 (including non-citizens) must hold a national identity card. National identity cards are compulsory for a range of activities, including obtaining passports and driver’s licences and using bank services. ONOCR initially issues applicants with temporary cards upon receipt of a completed application form, an original copy and photocopy of all pages of the applicant’s shenasnameh, and two photographs. Applicants must present all of this documentation in person at either a local branch of the ONOCR or an Iranian diplomatic mission abroad. Applicants’ fingerprints are also taken. The ONOCR then issues a permanent card with a 10-year validity. The front of the national identity card includes the bearer’s photograph, national identity number, full name, date of birth and shenasnameh number. The reverse features the bearer’s residential numerical code, validity date and the numerical identifier of the issuing office. National identity cards do not specify the bearer’s religion. National identity cards are biometric. The ONOCR is the issuing authority.
There is no requirement for Iranians to carry either or both of their shenasnameh or national identity card at all times. They are required only when it is necessary to prove identity — not having them will prevent individuals from being able to complete their business. Different offices require different forms of identification: banks require only a national identity card, while notary public offices require both a national identity card and shenasnameh. Iranians generally check with offices ahead of time to see which form of identification is required, or carry both as a means of security.
[9] DFAT Report, paragraphs 5.35 and 5.36
The country information above would clearly contradict the evidence and opinions of the applicant.
The Tribunal asked the applicant about his deposits into bank accounts in Iran. The Tribunal noted that the applicant’s responses in his Statutory Declaration in many instances fairly addressed the findings of the delegate. It accepted his responses that he was not remitting money to people smugglers, rather to the people that loaned him money to pay the smugglers. It also accepted that he did make a payment to his brother.
The delegate made much of the fact that his brother’s name was not [Mr D’s nickname], rather a name of [Mr D]. He explained that his brother changed his name to [Mr D’s nickname] so that he could fit in better – he did not want a name that identified him as a Kurd. The Tribunal accepted the plausibility of that argument. It noted that even the applicant’s interpreter before the delegate agreed that [Mr D’s nickname] was a common Iranian name. He also confirmed that he had not heard of the name [Mr D].
The applicant stated that he owed [his brother] money and so he repaid it.
He had asked his brother where he should repay it. He was given an account number.

100. The Tribunal recalled the decision of the delegate that he found that [the brother] could not have an account in Iran if he did not have identity documents. The Tribunal noted the applicant’s response in his Statement addressing that finding. The Tribunal noted the applicant’s statement that [his brother] had married an Iranian woman and that her father “could get things done”. The applicant did restate that in the hearing. He said he paid the money into the account [his brother] gave him. At the end of the day, he doesn’t really know who owned the account. He did as his brother instructed him and his brother did not raise any subsequent issue.
101. The Tribunal addressed the issue of how the applicant departed Iran. Again, the applicant maintained that he had obtained false passports for the family, and with the assistance of the smuggler, navigated their way through the international airport.
102. The Tribunal is conscious of country information contained in the DFAT Report.
Exit and Entry Procedures
5.22 Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport, as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g. employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, one must provide proof of their status (e.g. a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian nationals resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Application for, and issuance of, an exit permit, where it is required, is done electronically.
5.23 In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
5.24 The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
5.25 DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, smuggling people into or out of Iran is a crime punishable by up to 10 years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country.

103. Country information in relation to passports states:
Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship. All Iranian passports are biometric (since February 2011). Iranian passports include the following data: holder’s signature; country of residence; place of issue; name and position of the issuing authority; passport type; country code; passport number; national identity number; holder’s name; father’s name; date and place of birth; sex; date of issue; and date of expiry. Passport applicants are required to provide their original shenasnameh, photocopies of all of the pages of the shenasnameh containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the last three months. Applications can be lodged at police stations. New passports are dispatched by registered post and arrive 10-15 days after the application’s date of lodgement. As with driver’s licences and other forms of identification, women must have a headscarf covering their hair completely in their passport photographs. The Iranian Passport Office is the issuing authority for Iranian passports.

104. The applicant maintained that ten years ago, you could leave Iran on false passports, because they did so.
105. The Tribunal noted that the applicant arrived in Australia on a boat on[date] March 2011. The applicant could not remember the date he departed Iran.
106. The Tribunal discussed the findings of the delegate in relation to inconsistent evidence as between the applicant and his wife as to where the false passports were collected. He applicant stated quite emphatically that it was he who organised the passports, not his wife. She had noting to do with it. He stated that he knew where they collected the passports. His wife stated only “she thought” it was at a certain place. He restated that he knew, because he was responsible for them.
107. In any event, the applicant stated that the inconsistency was as to whether the passports were collected from a hotel or in the Square. He stated that the hotel was the [Name 1] Hotel and it was located in [Name 1] Square.
108. The delegate found that the applicant’s stated means of departure (using a false passport) was contradictory to available country information. However, given the proximity of the date of departure to the date the new, biometric passports came into operation, the Tribunal is of the view that it is plausible that the applicant departed on a false passport, a date that pre-dated the new passports.
109. The Tribunal is however concerned with the applicant’s evidence that he wasn’t aware of the name that was on his passport. He told the delegate “most likely his name, but I have no idea. I’m illiterate and have a problem with my vision. They were our photos but I don’t know the name”.
110. When discussed with the applicant during the hearing, he confirmed that the passport had his photo on it. He had to provide photos of the family to the smuggler who did the rest.
111. He restated the cost of the false passports and confirmed that he had borrowed money, in addition to selling all of their belongings to fund the passports and flights and passage to Australia.
112. The applicant’s wife confirmed the passports were in their own names and had their photos.
113. The Tribunal asked whether security had asked the applicant his name and what would he have said had he been asked. He replied that he wasn’t familiar with what happened at airports as he had never travelled by plane before. He reiterated that he has [a vision impairment] and couldn’t see what was on the passport and didn’t even think about what he would say if asked.
114. The Tribunal stated that it would consider the plausibility of that response.
115. There is no doubt that the applicant’s explanations of some of the inconsistencies recorded in his evidence in the delegate’s decision have been addressed and addressed fulsomely. The Tribunal is of the view that a couple of his explanations have provided plausibility to findings made by the delegate that he considered implausible.
116. The Tribunal accepts that it is plausible that the applicant may have acquired false passports (legitimately issued passports with false information), may have paid US$14,000 for them and that the collection point for the passports was [Name 1] Square and that he left the family for a moment to collect the passports at the hotel in the Square.
117. But the Tribunal remains troubled by the plausibility of the applicant accepting a false passport but did not trouble himself to find out what name he was represented by. The Tribunal is also troubled by the evidence of the applicant’s wife that the passports were in their own names, which might suggest that the passports were not false at all, but were legitimate passports.
118. The Tribunal is also concerned by elements of the applicant’s evidence that strain plausibility. It notes that the applicant claimed to have been educated for eight years in Iran. In response to country information that suggests he would not have been entitled to education as an undocumented Faili Kurd, he replied that he did not formally register for education, rather relied on the kindness of numerous people to allow him to sit in classes. When pressed further, his evidence was that he attended occasionally.
119. His evidence continued to be inconsistent as to the money transfers he had made. He claimed to have made just one payment, and at the time he stated he queried his brother as to how he had an account, and was told by his brother not to ask. Yet the evidence produced by the department, from the money exchange, alleged numerous transfers had been made for the purposes of “helping family” between 17 October 2012 and 27 March 2015.
120. The applicant’s evidence to the Tribunal did little to allay the Tribunal’s concerns about his experiences and his awareness of how undocumented Faili Kurds are treated in Iran, with the Tribunal forming the view that his evidence tended to be consistent with the delegate’s findings that his evidence was inconsistent with country information and indicated that he was unfamiliar with the experiences of an undocumented and stateless Faili Kurd living in Iran.
121. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(a) and s.101(b) in the following respects: that the applicant did not provide an answer to the question as to what his citizenship was and that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the applicant did not hold the claimed profile of an undocumented stateless Faili Kurd living in Iran and did not depart Iran using a fraudulent Iranian passport.
122. It follows then that the applicant’s wife assumed Iranian citizenship upon her marriage to the applicant by reason of the operation of Article 976 of the Civil Code of the Islamic Republic of Iran.
123. It further follows that the daughters and son of the applicant are Iranian citizens by reason of the operation of Article 976 of the Civil Code of the Islamic Republic of Iran.
Should the visa be cancelled?
124. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
125. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information

· the content of the genuine document (if any)

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

· the circumstances in which the non-compliance occurred

· the present circumstances of the visa holder

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

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

· the time that has elapsed since the non-compliance

· any breaches of the law since the non-compliance and the seriousness of those breaches

· any contribution made by the holder to the community.

126. 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.
127. The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

194. The Tribunal is of the view that s5J(3) will not be enlivened, as he will not be modifying his behaviour. He will not be altering his religious beliefs, including by renouncing a religious conversion, or concealing his true religious beliefs.
195. The Tribunal accepts this country information and is satisfied that the applicant will not be persecuted on the basis of his religious views or him claiming to be an atheist.
196. The Tribunal also considered the impact of the applicant returning to Iran.
Treatment of Returnees
Conditions for Returnees
5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29 Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

197. The Tribunal has found that the applicant departed Iran using a legitimate Iranian passport.
198. The Tribunal is satisfied that the applicant has no adverse profile in Iran and is therefore unlikely to attract any attention upon his return.
199. The Tribunal had regard to Country Information that it had obtained from the DFAT report on Iran:
Health
2.22 Article 29 of the constitution stipulates that every Iranian has the right to enjoy the highest attainable level of health. The Ministry of Health and Medical Education is responsible for planning, monitoring and supervising health-related activities for the public and private sectors. Health care and public health services are delivered through a countrywide network, based on a referral system that starts at primary care centres in the periphery and proceeds through secondary-level hospitals in provincial capitals and tertiary hospitals in major cities. The government remains the main provider of primary health care services across the country, although the private sector also plays a significant role in health care provision, mostly through secondary and tertiary health care in urban areas. While the quality of healthcare in the public sector is of a good standard, overcrowding and doctor shortages are major challenges — Iran has 1,000 public hospitals for a population of nearly 83 million, or approximately 1.7 hospital beds per 1,000 people. Iran’s private health care system is highly regarded, and attracts patients from other countries in the region. Numerous non-governmental organisations (NGOs) are active on health issues, particularly in specialised fields. Sanctions (see Sanctions) and COVID-19 have placed significant strains on the local health care system.
2.23 Iran has strong human development indicators. The United Nations Development Programme (UNDP) ranks it 65th out of 189 countries in the 2019 Human Development Index (situating Iran in the high human development category). Health care is a major government priority — it spent the equivalent of 7.6 per cent of GDP on health in 2018. According to the UNDP, Iranians have a life expectancy of 76.5 years. Iran has achieved significant reductions in the rates of both under-five and maternal mortality (14.9 and 16 deaths per 1,000 live births, respectively, in 2017). According to the UNFPA, 99 per cent of live births are attended by skilled health personnel. All Iranian citizens are entitled to basic health care coverage provided by the government, and 90 per cent have health insurance. In 2014, the government introduced a Health Transformation Plan aimed at improving efficiency, equity and effectiveness, particularly in poorer and rural areas.
Mental Health
2.24 Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men. According to this study, the problem of mental illness is pronounced in Tehran, where one in three people are affected. In an earlier study (2017), the Ministry of Health and Medical Education found 12 per cent of Iranian adults were suffering from depression and 14 per cent from anxiety-related disorders. DFAT heard anecdotally that the deteriorating economic situation has contributed to a rise in mental illness, drug addiction and suicide. Ongoing trauma associated with the Iran-Iraq War is another major source of mental illness, and the rate of mental illness in areas most affected by the war is greater than the national average.
2.25 Iran has had a national policy on mental health since 1986. The policy aims to increase access to mental health services, including by building psychiatric wards in general hospitals and developing a mental health component in primary health care, and improve the availability of essential medicines. As part of its implementation of the Health System Development Plan, the government has increased the availability of counselling services and therapeutic interventions for individuals suffering from mental illness. The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced.
People with Disabilities
2.26 Iran ratified the Convention on the Rights of People with Disabilities in 2009. There are no official statistics on the number of people living with disabilities. Unofficial sources estimate that as many as 12 per cent of Iranians have a disability of some kind. The Comprehensive Law on Protection of the Rights of Persons with Disabilities, adopted in 2004, commits the government to providing resources to meet disability needs and rights. The Law on the Protection of the Rights of Persons with Disabilities, adopted in 2018, increases disability pensions and insurance coverage to disability-related health care services; provides for government-funded vocational education for people with disabilities; and stipulates that new government funded buildings must be accessible to people with disabilities. Article 111 of the Charter on Citizens’ Rights, introduced in 2016, states that ‘disabled persons must be given the opportunity and possibility to study and acquire skills appropriate to their capabilities. Disability must not lead to deprivation of the right to acquire knowledge and professional skills’. The Citizens’ Charter is not legally binding.
2.27 The State Welfare Organisation (SWO) has primary responsibility for the provision of services to people with disabilities. A number of other state agencies – such as the Ministry of Cooperatives, Labour and Social Welfare and the Committee for the Affairs of War Veterans – provide services to people with disabilities, including in rural areas. NGOs are also active. According to the Iranian Government, 662 NGOs provide services to people with disabilities in cooperation with the SWO and other state agencies.
2.28 Understanding of the needs of people living with disabilities is low in general society. Local sources told DFAT that people with disabilities face social stigma and encounter obstacles in accessing housing, employment and public transportation. According to foreign NGOs, children with disabilities, particularly girls and those with intellectual disabilities like autism, face barriers in accessing education and, in some cases, receive no education at all. Government-funded buildings built before 2018 are largely inaccessible to people with disabilities, and building accessibility for people with disabilities remains a problem more generally. Discrimination against people with disabilities is not outlawed explicitly and those with visual, hearing or speech disabilities are barred from registering as candidates for parliament. Provision of support services differs between different categories of the disabled: while those with disabilities resulting from war service receive tailored insurance coverage, others find this difficult to obtain. Vocational education centres for people with disabilities exist, but are concentrated in urban areas.

200. The Tribunal noted the psychiatrist’s report that referenced the applicant’s severe PTSD and major depressive order. It notes his serious suicide attempt earlier this year and his hospitalisation as a consequence. His recovery is incomplete and fraught.
201. The Tribunal noted the psychiatrist’s report referenced his exploitation as a child in Iraq because of his [vision impairment].
202. The Tribunal notes the country information above in relation to the treatment of people with disabilities, and in particular [vision impairment] and the obstacles with accessibility he would face in Iran.
203. The Tribunal also places emphasis upon the condition of his son, diagnosed with [Medical Condition 1].
204. The Tribunal again notes the country information above in relation to the treatment of people with disabilities, and in particular [Medical Condition 1] and the difficulties in relation to education that he may encounter.
205. The Tribunal gives this some significant weight against cancelling the visas.
206. An important consideration for the Tribunal is the fact of the impact of cancellation of the applicant’s visa upon his three children.
207. The Tribunal must give due consideration to the rights of the child and family unity obligations.
208. Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. "

209. Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State ... "

210. Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:
"Obligations apply to persons within Australia's territory and also to persons within Australia's jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)... "

211. Article 1 of the Convention on the Rights of the Child states: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless the law applicable to the child, majority is attained earlier.’ The Tribunal notes that the daughter, [Ms C], was born in [year], which makes her [under eighteen] years of age at the time of this hearing.
212. The Australian courts have found that generally it is in the best interests of the child to remain with their family. The applicant has three children, one born in Iran and the latter two born in Australia who are also Australian citizens.
213. The Tribunal also notes that if the visas are in fact cancelled, that it is likely that the three children will return to Iran with their parents, thus the family unit will remain intact.
214. The Tribunal discussed with the applicants that it was required to consider the Convention on the Rights of the Child. It advised that Australia has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration.
215. The Tribunal has considered the interests of the daughter, and considered the submissions made by her parents and witnesses as to assimilation into Australian life and culture. It notes her high achievement at school and the fact that she has received the majority, if not all, of her education in Australia. It also notes that the daughter has had no exposure to Islam culture or religion.
216. The applicant has two younger children born in Australia. The applicant contends that the best interests of the children is in the visas not being cancelled. The statutory declaration of the applicant of 24 June 2021 highlights that the two younger children were born in Australia, that they are Australian citizens, that they have [attended kindergarten and school] and are familiar with the Australian way of life and culture.
217. The representative submitted that it is in the best interests of the two younger children to remain with the family who have been living in Australia for a significant amount of time.
218. The last part of that submission appears to be a reference to Article 9 of the Convention on the Rights of the Child which states in part: ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will [… with certain exemptions relating to child welfare]’.
219. The Tribunal accepts that it is in the children’s best interests for the visas not to be cancelled, due in part to the Australian citizenship of the two younger children, their ties with Australia (even though, in the case of the two younger children, these are mainly forged through his parents and schooling), the benefits to them of a continued stable family life here, their continued access to Australian education and the opportunities that arise from Australian education and socio-economic conditions.
220. In closing at the hearing, the applicant’s representative commented on the detriments that the children may experience if they were to return to Iran. These include the problems that they will face because they do not speak Farsi; that the family may face discrimination as Faili Kurds; and that the son in particular will suffer on the basis of his [Medical Condition 1].
221. On a strict application of the Tribunal’s discretion, the Tribunal could find these points to be of little value. First, the Tribunal’s focus is on what decision in respect of the cancellation would be in the son’s best interest, rather than how his interests would be affected by a decision to cancel the visa (although the adverse impacts may help, in treating the child’s best interest as a primary consideration, in determining what weight to place upon it). Second, the Tribunal does not accept at face value that the children have no Farsi language skills, noting that the parents speak Farsi. Third, the Tribunal does not accept that the children’s separation from other family members is a necessary or even likely consequence of the visa cancellation. For instance, all the family members are Iranian citizens and would therefore be free to return to Iran (subject to any protection obligations that Australia may have in respect of them). Furthermore, the visa cancellation would not necessarily result in the applicant’s removal to Iran (and hence, the children’s separation from him), as the applicant would need to hold or agree to apply for an Iranian travel document to make the return trip.
222. Notwithstanding that, the Tribunal is moved by the considerations of the children and finds that a primary consideration is the best interests of the children for the visas not to be cancelled; it places significant weight on this consideration in favour of the applicant.
Conclusion
223. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa. The Tribunal notes that the applicant steadfastly maintains his claim that he is an undocumented, stateless, Faili Kurd.
224. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on his return.
225. The Tribunal has also considered country information relating to returnees to Iran, noting that the IOM runs a program to assist voluntary returnees to Iran and provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.[12]

[12] DFAT Report, paragraph 5.27 – 5.28
226. The Tribunal also notes that the applicant has worked in Australia, and may have some funds by which to re-establish himself and his family back in Iran.
227. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[13]
[13] DFAT Report, paragraph 5.29 – 5.31
228. The DFAT Report also notes that authorities pay little attention to, and that it is not aware of prosecutions for, atheism or proselytising while abroad.[14]
[14] Ibid
229. The Tribunal is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) his claims for advantage. It is mindful that each of his “new” claims have failed to persuade the Tribunal, either individually or cumulatively, that he will be persecuted now, or in the reasonably foreseeable future, if he returns to Iran.
230. However, the Tribunal notes that the applicant has resided in Australia for around ten years and this is a very substantial period of time. It also notes that the applicant has made connections with the community. The Tribunal also notes that he has enjoyed the benefits of the health and employment systems, albeit benefits which the Tribunal has not been persuaded he could not obtain in Iran, although the applicant may specifically be subjected to grave discrimination by reason of his disabilities.
231. The Tribunal notes that the applicant has maintained very regular employment and has accumulated a number of supporters of his hard work and ethics.
232. The Tribunal is very mindful of the impact return to Iran will have on his three children, and in particular his son.
233. The Tribunal is mindful that the children, and in particular the elder daughter, have made connections within the community, have a wide circle of friends in Australia and no connections at all with anyone in Iran.
234. The Tribunal is mindful that the elder daughter is a high achiever and leader, both academically and in the sporting community.
235. The Tribunal is also very aware of the differences in lifestyle expectancy should the children be required to return to Iran.
236. The Tribunal has considered all the circumstances relevant to the exercise of its discretion as to whether the visa should be cancelled. In weighing the various discretionary factors, the Tribunal gives primary consideration to the best interests of the applicant’s children, finding that it is in their best interests that the visa not be cancelled. The Tribunal also takes into account other considerations in favour of non-cancellation, in particular the applicant’s present circumstances as a self-employed person with a stable family; the consequences for his wife and daughter of cancellation; and the period that has elapsed since the non-compliance. It is also particularly cognizant of the applicant’s mental health condition and his [vision impairment].
237. The Tribunal shares the delegate’s concerns about the seriousness of the applicant’s non-compliance, and, as noted above, it has some ongoing concerns about his credibility and conduct in relation to his claim to citizenship. However, it finds that at the time of this decision, the considerations in favour of the applicant outweigh the grounds for cancellation, and the preferable decision is that the visa should not be cancelled.
Overall conclusion
238. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
239. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
Michael Hawkins AM
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 3255

28 July 2021

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