2003736 (Refugee) - [2021] AATA 3312

2003736 (Refugee) [2021] AATA 3312 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2003736
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 STATEMENT:         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 10:46am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – incomplete or incorrect information given in visa application – stateless, undocumented Faili Kurd or Iranian citizen through grandfather or by marriage to Iranian citizen – credibility – inconsistent and contradictory answers given by applicant and husband in citizenship identity interviews – activities usually requiring documentation, including money transfers – claimed departure on false passports – green card and marriage certificate not declared – onus of establishing grounds for cancellation and difficulty of proving statelessness – discretion to cancel visa – applicant and husband’s atheism and mental health, and husband’s blindness – best interests of children – education, acculturation and one child’s developmental disorder – two children Australian-born citizens – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107, 109(1), 438
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Saleem v MRT [2004] FCA 234
Singh v MIEA (1994) 127 ALR 383
Slayman v MIMA [1997] FCA 841
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 she is an undocumented, stateless Faili Kurd born in Iraq and formerly residing in Iran. The delegate found that the applicant is not an undocumented, stateless Faili Kurd; that the applicant had attained Iranian citizenship either from her paternal grandparents or automatically upon her marriage to her Iranian citizen husband; and that she is an Iranian citizen and was so at the time of arrival in Australia and at the time she applied for the protection visa. 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 her husband, [Mr A] and a friend, [Mr B]. The hearing was, by written consent, jointly held with her husband’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 her 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
[In] March 2011 you arrived on Christmas Island as an Illegal Maritime Arrival (IMA) and claimed to be an undocumented, stateless Faili Kurd born in Iraq. You arrived on Christmas Island with your husband, [Mr 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(2) 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 count ry(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:
Our decision to come to Australia
14. As explained in my husband's statement, we decided to come to Australia because my daughter could not get any education in Iran and because we did not want her to experience the terrible life we experienced. Further my husband was constantly unpaid or underpaid because of his ethnicity. On one occasion he experienced physical beatings when he tried to receive his pay. The constant insecurity, and the not knowing whether we would have enough food on the table to feed ourselves the next day, made us decide to leave for a country that was safe and where we would have human rights.
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 retum to Iran I would be at risk of being harmed
because of my ethnicity as a Fa/Ii [sic] Kurd and also my membership of a particular social group of stateless persons. Fa/Ii Kurds have no rights in Iran and our treatment by the Iranian government and people is likely to lead to my husband or I being killed or imprisoned. We are also subject to such severe discrimination, that we are unable to subsist in Iran .
4. I believe that if I were returned to Iraq I would be persecuted there for my ethnicity as well, as has happened in the past when my family was forced to leave Iraq for their safety. I also have no legal right to enter and reside in Iraq because I have no documents to show that my family is originally from that country
What I fear would happen if I was forced to return to Iran
15. I fear that I would be persecuted for my ethnicity or statelessness if I were forced to return to Iran . There is nowhere safe for me or my family in Iran. It my husband is detained I would not be able to survive because single female heads of households are persecuted in Iran and I would not be able to work because I do not have any skills
16. Further, because / left Iran with a false passport and was undocumented while I was living there, I will not allowed to re-enter Iran if I am forced back there. As a result I will be arrested at the airport with my daughter and will be forced to spend time in detention or be subjected to extrajudicial execution by the authorities because I am a stateless person and/or a Fa/Ii Kurd. Nobody in Iran would find out what had happened to me because the Iranian government detains people all the time, without telling anyone where they are.
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 and people is likely to lead to [your husband or you] being killed or imprisoned ".
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:
15. / fear that I would be persecuted for my ethnicity or statelessness if I were forced to return to Iran.
Why I cannot go back to Iraq
17. 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 [sic] 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.
18. I am also in fear about going back to Iraq . I have heard that it is dangerous there for Falli Kurds, especially after what happened to my uncles and parents, and I do not want to put my daughter's life at risk. I also know no one in that country, so nobody can offer us any protection.
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 were "not safe in either Iran or Iraq" due to your ethnicity as Faili Kurd and your status as a stateless person. You stated that your treatment by the Iranian government "is likely to lead to [your husband or you] being killed or imprisoned"
Based on your answers and meeting all other relevant criteria you were granted a Protection visa on 30 August 2011.
On 25 January 2016 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 [the applicant] born on [Date 1]. You claimed you were not   known by any other names including nicknames or on social media.
You claimed your date of birth in the Persian calendar was [Date 2]. You stated you knew this was your date of birth because your father "wrote it down somewhere". You stated: "the day and the month is not exact, we just know the year and they say you were born in the winter... this exact day and month is picked by ourselves to have a date of birth".
You stated neither you nor your siblings were ever issued with birth certificates or registration papers which recorded your birth.
Family
You claimed both your parents were born in Iraq and were expelled from that country in [Persian calendar year 3, the year before the applicant was born] .
You claimed both your maternal and paternal grandparents passed away prior to your birth and that you did not know details of where they were born or where they were buried.
You stated you had two sisters and two brothers who resided in Ilam, Iran.
You stated you 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 ), you stated "No, because nothing has been recorded about our family". When asked how you knew her date of birth you answered "I know 4 years after we got married my child was born and because of couple of years of schooling I had I had learned the years and I knew   a few words so I knew the year".
You claimed that your mother-in-law was buried in 11am, however, you were unaware where your father-in-law was buried. The departmental officer conducting the interview put to you that your husband's family would have obtained a death certificate for his mother's burial and that this document could be obtained to help support your family's identity. You stated you would seek to obtain this document.
You stated on your arrival in Australia you made an 'alive call' to one of your neighbours and, in turn, to your mother. Contrary to your answer, the interviewing officer noted that departmental records indicated this call was made to "[Mr D] " who was recorded as "brother". In response, you stated [Mr D] was in fact a close friend of your husband. When asked why you recorded "brother" if [Mr D] was just a friend you answered "no we didn't".
Education
You claimed you never attended school as your family had no documents to facilitate your enrolment. You claimed you instead attended [Adult Learning] where a lady from the village taught you basic reading and writing in her spare time. You claimed you attended these classes for a couple of years for one to three days a week.
You were unable to provide the name of your teacher, however, you claimed that she was a Kurd that lived in your village. When asked if the lessons were taught in Kurdish you answered: "no, in Iran there is only one educational system, it is in Farsi and it is in all educational facilities in Iran".
Ethnicity/Statelessness
You were asked why your family were stateless and what it meant to you to be a Faili Kurd. You explained that the differences between being a Faili Kurd and other ethnicities were language, clothing and some cultural differences.
When asked why your family left Iraq for Iran you answered: "Actually we were kind of kicked out of Iraq [by Saddam Hussain]; it's not a choice of migrating somewhere else". When asked for specific information regarding why your family were removed from Iraq and what happened upon their arrival in Iran you were unable to provide further detail.
You claimed your family were the only Faili Kurds that lived in your village. You explained the difference between Faili Kurds and Iranian Kurds was the following: "Iranian Kurds are citizens of Iran, like any other citizens of that country they are allowed to work and have education. But for us because we were stateless we didn't belong to anywhere we were not allowed to work or go to school or go anywhere unless we paid to the government".
Travel
You stated you had not travelled outside Iran prior to your departure for Australia.
You claimed that you and your husband obtained fraudulent passports and a number of tickets through a smuggler to facilitate your departure from Tehran towards Australia.
You claimed you were provided two fraudulent Iranian passports in your own names which included your own photographs. You claimed you and your daughter shared a passport.
You explained that your family caught a bus from Ilam to Tehran city and met the smuggler in Ferdowsi Square where he gave your husband the passports and tickets before travelling to Imam Khomeini Airport.
You claimed that, at the airport, your husband instructed you to wait aside as he approached the passport control area. You claimed he came back after some time and stated there were no issues and that your passports were only checked once prior to your departure.
The departmental officer asked you if you paid any money or bribes at the airport to which you answered: "no, not at the airport".
Documented
You advised the interviewer that you were not issued any identity documents in Iran. Similarly, you claimed neither your husband nor your parents held documents in Iran.
You claim you thought you once saw your father's Iraqi identity card but you were unsure of this document's current location or if it had been 'thrown away'.
You explained that the Iranian government issued a Green card to Faili Kurds entering Iran which was only valid for one year. You claimed your father never applied for a Green card because he "couldn't afford to pay for the card for each person every year that didn't give you anything". You described a Green card as "nothing" which would not enable you to obtain a bank loan or to work lawfully.
Your husband also attended an interview with a departmental officer for the purposes of
making a finding on his identity on 14 February 2017. During this interview, your husband
provided details of your family's life and departure from Iran, summarised in part as follows:
Your husband claimed that neither you, his parents nor his siblings had ever held any identity documents from Iran or Iraq.
Your husband claimed he did not know where his paternal or maternal grandparents were born, however, he stated that it may have been Iran as his ancestors were originally from that region.
When asked to whom who he made his "Alive call" your husband replied that he had "no idea". It was then put to him that he called his brother, [Mr D], in Iran whose identity had not been disclosed to the Department. Your husband stated [Mr D] is the nickname of his declared brother, [Mr DD], and asked the officer to confirm with the assisting interpreter that [Mr DD] was a common name in Iran. The interpreter stated that he had never heard the name [Mr DD] before but that [Mr D] was a very common name in Iran.
Your husband claimed that both his parents were buried in Iran but that no official death certificates had been issued in this respect. He claimed his parents were buried on private land in llam, used by Faili Kurds to bury their elders.
In regards to your departure from Iran, your husband claimed he met the "smuggler's agent" at a hotel in Tehran where they provided the passports on the morning of your departure. Your husband claimed he paid a total of $[Amount 1] US for three fake passports, airline tickets and smugglers in [Country].
Your husband claimed you passed through three security checkpoints at Tehran airport using your false passports without issue and that he thought the smuggler had arranged "some sort of pay off with security".
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, and those of your family, over the course of your application history appears to be inconsistent and contradictory.
I note you claimed you and your parents were born in Iraq and that you did not know where your paternal or maternal grandparents were born. I note you claimed your family were removed from Iraq yet you were unable to provide details of why this happened and what happened to your family upon entering Iran.
I consider it is reasonable to expect that had you genuinely resided in Iran as a stateless and undocumented person for the majority of your life you would have made enquires about the origins of your undocumented status and that you would be able to relay that information. As you were unable to provide these details at your identity interview I am not satisfied you resided in Iran as an undocumented, stateless Faili Kurd as claimed.
I note 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 citizenship. 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 lran². Had your paternal grandfather held Iranian citizenship prior to leaving Iran for Iraq as you claim it therefore follows that, as per Iranian law, your father and yourself in turn acquired Iranian citizenship automatically at birth. In view of this country information, I consider it is likely that you did not provide details of your paternal grandparent's birth in order to conceal evidence of your Iranian ancestry and to strengthen your claims for protection.
I have given consideration to your claim that neither you nor your husband were issued identity documents in Iran. I note you claimed that your father never applied for a Green card because he "couldn't afford to pay for the card for each person every year". I note you claimed a Green card "didn't give you anything, you couldn't get a loan from a bank, you couldn't work it was nothing". Contrary to your claim, however, country information details the following benefits of Green card registration (Amayesh registration):
Amayesh registration enables refugees to access basic services and work permits, and contain information about the town and province the card holder is permitted to reside in. Children born to Amayesh card holders are also generally issued with Amayesh cards. To renew an Amayesh card, refugees are required to pay municipal taxes and a card renewal fee. Amayesh cards are renewable provided that the relevant conditions, such as the payment of municipal taxes, are met. Apart from Amayesh cards, Feyli Kurd refugees in Iran may be able to present other documentary evidence that may assist in establishing their refugee status in Iran, including a registration slip issued by Iran's Bureau for Aliens and Foreign Immigrants Affairs (BAFIA) , documents issued by refugee camps and settlements and health insurance cards.
I consider it is likely that you had limited knowledge that being a registered and documented refugee in Iran, i.e. the holder of a Green card, provided access to basic services and work permits because you and your family were documented Iranian citizens.
I have given consideration to your claim that you never attended school in Iran as your family did not have access to identity documents to facilitate your enrolment. You claimed you instead attended [Adult Learning] for a couple of years where a Kurdish lady from the village taught you basic reading and writing in her spare time. When asked if the lessons were taught in Kurdish you answered: "no, in Iran there is only one educational system, it is in Farsi and it is in all educational facilities in Iran".
I consider it is unlikely that you were able to attend schooling with the frequency which you claimed had the classes been run by a single individual in her spare time. Moreover, I consider it is unlikely this informal education would follow the Iranian education system and be conducted in Farsi, particularly noting the teacher was purportedly of Kurdish ethnicity. Further, as you were unable to provide the name of this teacher when asked at your identity interview I am not satisfied you undertook this schooling as claimed.
I consider it is more likely you regularly attended formal schooling in Iran for a substantial period of time as you were a documented Iranian citizen. I consider it is likely that you did not provide details of your formal education in Iran to conceal your Iranian citizenship and to strengthen your claims for protection.
I have considered your claim that you and your family departed Iran using fraudulent passports issued in your own names and obtained through a smuggler. I note you claimed the smuggler gave you these documents at Ferdowsi Square and you then travelled to Imam Khomeini Airport where your passports were checked once without incident prior to your departure. You claimed no money or bribes were paid at the airport nor did you indicate that you were assisted by any individual to bypass any security checkpoints.
In contrast to your claims your husband claimed that you collected your passports from a smuggler at a hotel in Tehran. Your husband claimed the smuggler was paid [Amount 1] US for your passports and tickets to depart Iran, of which $[Amount 2] went to a smuggler in [Country]. He claimed he never looked inside the passports and thought "some sort of pay off with security" had occurred to facilitate your departure through three security checkpoints at the airport. He claimed this was possible because you could bribe a needy person to get through security "with a couple of dollars".
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 husband's claim to have obtained the purportedly false passports at a hotel in Tehran rather than Ferdowsi Square.
Based on the available information for Khomeini International Airport in Tehran I do not consider it is plausible that a smuggler could bribe airport officials with "a couple of dollars", as your husband claimed, in order to facilitate the departure of a person using a false document. I consider this claim is particularly unlikely as neither you nor your husband claimed you were accompanied by a smuggler through the airport.
Moreover, if you were genuinely an undocumented and stateless individual I consider you would have no formal information recorded with Iranian authorities . I consider it is therefore implausible that you were able to pass through security checks at Tehran airport using fraudulent passports, issued in your own name, as the information contained on those documents would be unverifiable with any system.
I consider it is more likely you provided inconsistent and contradictory information regarding your departure from Iran because you and your family departed using your own legally obtained, genuine Iranian passports. I consider you were able to access genuine Iranian passports as you and your husband are Iranian citizens.
I note you claimed at your identity interview that you made an 'alive call' to one of your neighbours and to your mother. Departmental records, however, indicate this call was made to "[Mr D]" who was recorded as a "brother"", and who you subsequently claimed was your friend. I note your husband claimed at his identity interview that [Mr D] was the nickname of his brother [Mr DD].
Information before the Department indicates that your husband has made financial transactions to Iran to his brother [Mr D], otherwise known as [Mr DD], and your mother, [Ms E] (spelled '[Alternative spelling] ' in your Protection visa application). Financial information reports indicate these transactions were made through [a] Money Exchange for the purpose of "helping family" between 17 October 2012 and 27 March 2015.
Information available on [the] Money Exchange website⁵ 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".⁶ A NIC or an Iranian birth certificate (shenasnameh) are required whenever it is necessary to prove identity and "not having them will prevent individuals from being able to complete their business".⁷ Noting the available country information and the frequency and period with which transactions were made to your mother and brother-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.
You confirmed at your identity that your daughter, [Ms C], was born in Iran prior to your departure. When asked if your family received any form of paperwork for your daughter's birth (official or unofficial), you stated "No, because nothing has been recorded about our family". Country information for Iran, however, confirms that "birth registration is compulsory and must occur within 15 days of birth". A shenasnameh is the foundation identity document issued to all Iranian citizens at birth and contains "the names of the bearer's parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number"⁹.   As birth registration is compulsory in Iran, I consider it is likely your daughter was issued a shenasnameh which confirms details of your Iranian citizenship.
Although documentation is issued in Iran at significant moments such as when someone enrols in school, gets married, gives birth and is required to confirm ones identity and when using a bank you claimed that neither you nor your family members were ever issued identity documents in Iran. 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 which would confirm you are an Iranian citizen in order to strengthen your claims for protection in Australia.
Further, under Paragraph 6 of Article 976 of the Civil Code of the Islamic Republic of Iran, a woman who marries an Iranian citizen becomes an Iranian citizen by operation of law. There is no registration process required to become an Iranian citizen by marriage as the operation of Iranian law imposes citizenship upon the non-Iranian woman. I note information before the Department indicates your husband is an Iranian citizen. As such, had you not attained Iranian citizenship from your paternal grandparents I consider you would have acquired Iranian citizenship automatically upon your marriage to your Iranian citizen husband. As your husband appears to be an Iranian citizen, I consider your children also automatically acquired Iranian citizenship at birth under Article 976.
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 and not an undocumented, stateless Faili Kurd as claimed in your Protection visa application. 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 in 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 'W hy 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/ or 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 she has provided incorrect answers to question 20 of the Form 866 Part C in her application for a protection visa.
The delegate also notes in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 22, 23, 41, 42, 43, 44, 45 and 46 of the Form 866 Part C in her application for a protection visa.
If the applicant has failed to fill in her application form in such a way that no incorrect answers are given or provided, her visa may be cancelled. The NOICC notes that by failing to comply with section 101(a) and/or section 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 her husband jointly responded to the NOICC through their representative on 17 January 2020. The delegate summarised the applicant’s response as follows:
The visa holder maintains in her response that she is a stateless person as claimed in her Protection visa application and is not an Iranian citizen.
The visa holder notes the contention that she is an Iranian citizen outlined in the Notice is based largely on the answers she and her husband gave at their identity interview. While she acknowledges this interview was undertaken with the assistance of an interpreter she claims she was unable to understand some of the questions posed to her and disagrees that she gave some of the answers quoted. Further, she claims that she “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 herself and the identity interviewer which led to erroneous conclusions “based on a subjective view rather than an objective one”. She claims that as there would be a substantial delay to obtain a copy of the interview recording under the Freedom of Information Act she is “not able to comment on any of the adverse information presented”. As such, she suggests that “very little, if any, weight” should be placed on the identity assessment developed from the answers she gave at her identity interview.
The visa holder notes that it is difficult to demonstrate that she is stateless as she would have to prove she does not have identity documents. In response to the Notice the visa holder and her husband 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 she and her husband 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 she spent little time with and who “quickly formed a view [she was] not telling the truth about [her] 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. She claims that the Department has “taken the position of speculating” about her citizenship status and placed the onus of proof on herself, 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 she 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 she and her family have resided in Australia for a period of ten years. She claims she and her 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, she notes that her children have resided in Australia during their formative years.
The visa holder claims she and her 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 her claim the visa holder has submitted eight character references from friends and community associates.
The applicant had submitted the following documents:
·written submissions from her representative;
·her identity documents, being a copy of her Iranian national identity card, religious marriage certificate and Queensland driver licence;
·her husband’s identity documents, being a copy of his religious marriage certificate and Queensland adult proof of age card; 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 her identity and protection claims in Form 866 Part C of her protection visa application. The Department made the following findings:
I note the visa holder maintains that she is an undocumented, stateless Faili Kurd. I note she strongly disputes the assertion that she 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 her 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 her contention that little to no weight should be placed on the identity assessment developed from the answers she gave at her identity interview. Although the visa holder claims that she had no prior knowledge of the identity interview’s purpose departmental records confirm she 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 her attendance. The letter goes on to state that the identity interview was “not for the purposes of assessing [her] 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 she was sufficiently notified of the identity interview’s purpose.
Similarly, I do not accept 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 her 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 her answers at this interview make clear that she 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: The interview may take a few hours today but we will take a break if required. Please let us know if you would like to have a break at any time
[Interpreter translation]
Visa holder’s response in English: Ok
Interviewing officer: We have booked a Farsi interpreter for you today to ensure that you are able to understand the questions and also clearly communicate your responses. [Interpreter translation]
…
Interviewing officer: If you do not understand something that I say or have any difficulties with the interpreting please let us know immediately. The interpreter will also let us know if they need clarification.
[Interpreter translation]
Interviewing officer: Do you understand the interpreter? [Interpreter translation]
Visa holder’s response in English: Yes
Interviewing officer: Do you have any objection at this time to the interpreter? [Interpreter translation]
Visa holder’s response in English: No
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 her 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 she “guessed” her answers due to a misunderstanding or stress as she was also advised at the commencement of the interview that she could take a break at any time.
I note the visa holder broadly states that she disagrees that she provided some of the quotes attributed to her. However, I am unable to consider the visa holder’s claim as she 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 her feel stressed as a way to explain or excuse the answers she 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 she and her husband are Iranian citizens and did not comply with section 109 of the Act. While I accept that the visa holder may have difficulty providing identity documents if she was genuinely stateless, her description of her 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 her life story would be verifiable and create a consistent picture of her identity, allowing the delegate to reach a logical level of satisfaction about her claims.
I find the information before the Department and provided by the visa holder and her husband at their identity interviews do not support her claims to be a stateless and undocumented Faili Kurd. In particular, I find the visa holder’s claims at her identity interview regarding her upbringing in Iran, her education, her daughter’s birth, her inability to detail the origins of her undocumented status, and her 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 that neither she nor her husband were 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 she and her 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 in the manner claimed. Moreover, I find it is unlikely the information contained on their purportedly false passports could be verified on any system had the visa holder and her family been genuinely stateless. I note the visa holder has not addressed her departure from Iran in her response to the Notice nor clarified the inconsistencies in her claims.
The visa holder has provided insufficient explanation about why she 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 she claimed at her identity interview that her family members were not issued identity documents in Iran, even in cases where authorities were not strict about a person’s status. I consider the visa holder’s claims are unpersuasive and not supported by known country information. I note she has not sought to clarify this information in response to the Notice.
Although the visa holder claimed to have not been issued identity documents at her identity interview I note she has submitted original and translated copies of a Foreign Residents Identity Card issued in Iran in 2003 along with an extract of her marriage certificate. I note these documents have not previously been provided to the Department nor does the visa holder detail in response to the Notice how they were obtained. In particular, although the visa holder claimed she has not been known by any other name the marriage certificate provided lists her and her husband as “[Alias]” and “[Mr A, Alias]”, identities which also have not previously been disclosed to the Department. Further, this document appears to have been translated from Arabic, a language the visa holder and her husband have not indicated they speak.
Given the inconsistencies noted, I am unable to place any weight on the veracity of the visa holder’s ‘identity’ documents submitted in response to the Notice. I do not find these documents contain verifiable information which indicates the visa holder is a stateless and undocumented Faili Kurd.
Information before the department indicates that visa holder’s husband has made financial transactions to their 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 mother and brother-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 her family do not possess Iranian identity documents. The visa holder has failed to clarify this information in response to the Notice.
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 her claimed status as an undocumented, stateless Faili Kurd. As such I do not consider these submissions are relevant to the grounds for cancellation.
Based on all the information before me, I find the visa holder provided inconsistent and contradictory information to the Department because she is an Iranian citizen of Kurdish ethnicity. I find the visa holder has likely withheld identity documents from the Department over the course of her visa application history and provided misleading information to the Department in order to strengthen her claims for protection in Australia.
I find the visa holder likely obtained Iranian citizenship automatically at birth from her Iranian citizen father and grandfather under the provision of Iranian law (Article 976). Nevertheless, as information before the Department indicates her husband is an Iranian citizen, had the visa holder not obtained Iranian citizenship automatically at birth I find she would have obtained citizenship at the time of their marriage through the provisions of Paragraph 6 of Article 976 of the Civil Code of the Islamic Republic of Iran.
As an Iranian citizen the visa holder would be able to obtain an Iranian passport and would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person. The visa holder’s departure from Iran without issue and the financial support provided to her family in that country support the finding that she is an Iranian citizen and was so at the time she submitted her Protection visa application.
As the visa holder is an Iranian citizen and was so at the time she submitted her Protection visa application I find she 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 she.provided incorrect answers in response to questions 22, 23, 41, 42, 43, 44, 45 and 46 of Form 866 Part C.
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 her Protection visa under section 109 of the Migration Act 1958.
Statutory Declaration dated 25 June 2021
The applicant provided a statutory declaration, signed and dated by her on 25 June 2021.
The applicant states that she agrees that she provided some incorrect information in her protection visa application. She states that she does not agree with most of the allegations made by the delegate about the incorrect information she has provided. She also states that she does not agree with the conclusions drawn from her identity assessment interview in 2017.
Identity assessment interview
The applicant claims that she strongly believes that the officers who interviewed her in her 2017 identity assessment interview were biased in the way they asked questions. She claims the interview lasted over three hours, that she was asked many questions, that some of the questions were about matters she could not remember, and that she was under a lot of pressure to provide a response. She claims that at times she just answered the questions without thinking or properly understanding the question, because she was tired, stressed and wanted the interview to end.
The applicant claims that on the day of the interview, she had a really bad heat rash all over her body and that she was very uncomfortable. She also claims that they had all of their children aged [Age 1], [Age 2] and [Age 3] with them and that they were not prepared to be interviewed for extended hours.
Name and place of birth

The applicant claims her name is [the applicant] and that she was born on [Date 1] in Iran. She claims her father was expelled from Iraq because he was a Faili Kurd and Saddam Hussein did not like them.
The applicant claims her father was never able to obtain Iranian citizenship, because he was born in Iraq and his parents were also born in Iraq.
The applicant claims her mother was born in Iran. She claims her mother was able to obtain Iranian citizenship through her father, who held Iranian citizenship.
The applicant claims her parents were married in Iran, however the applicant, her father and her siblings never obtained Iranian citizenship, because at the time Iranian citizenship could not be passed to husbands or children by women.
The applicant claims her father was given green cards by the Iranian authorities, which then changed to white cards. She claims to have never been issued with a birth certificate in Iraq or Iran and because of that, she was unable to go to an official school in Iran.
The applicant claims that prior to coming to Australia, she was told by others that if she told the Australian authorities that she had any documents, she would be deported to Iran. She claims to have been too scared and believed this advice. She claims this is why she claimed that she and her family did not have any documents in Iran.
The applicant claims that at the time of her citizenship application, she was told again that if she said the truth, she would be deported to Iran. She claims this is why she said that she and her family did not have any identity documents.
The applicant claims that she provided a copy and an English translation of her green card to the Department in response to the NOICC.
The applicant claims that she is very regretful that she did not disclose to the Australian authorities that she had a green card in Iran. She claims that she is still considered a stateless Faili Kurd in Iran.
Family
The applicant claims that all of the information she has provided about her family composition is true and correct.
Education
The applicant claims that the schooling she completed was not official schooling. She states that she strongly denies that she attended formal schooling in Iran for a substantial period of time.
Ethnicity and statelessness
The applicant claims she does not understand why the delegate had concerns about her knowledge of Faili Kurds. She claims she only spoke about her own experience and that she does not know how anyone can measure the truth about her experience, because her experiences are unique to her.
Travel
The applicant claims she travelled out of Iran using a false passport that her husband paid for. She claims they did not bribe any officials themselves, but believes that the people smuggler had bribed officials at the airport.
Money transfer to Iran
The applicant claims that she did transfer money to Iran to her mother on at least one occasion many years ago. She claims she did not mention this before, because she was too scared of the consequences of it and she is sorry.
The correct information
The applicant claims the correct information is that she is a stateless Faili Kurd who has some identity documents. She claims she was issued a green card and a white card in Iran. She claims her father and all of her siblings are also stateless Faili Kurds, but her mother is an Iranian citizen.
The content of the genuine document
The applicant claims her green card is a genuine document. She claims she has not provided any false documents to the Department.
Whether the decision to grant the applicant’s visa was based, wholly or partly, on incorrect information or a bogus document
The applicant claims that the decision to grant her protection visa was based, in part, on the finding that she was an undocumented, stateless Faili Kurd formerly residing in Iran who engaged Australia’s protection obligations. She claims that even if she had disclosed the existence of her green card, she would have still been granted a protection visa.
The applicant’s present circumstances
The applicant claims she is a housewife responsible for the care of her husband and children. She claims one of her children has autism and that two of her children are Australian citizens.
The applicant claims she and her family have lived in Australia for over 10 years and that this is where they call home.
The applicant claims the cancellation of their visas has caused significant hardship for her family. She claims her children have suffered a lot because they have to live with very stressed parents who are emotionally shattered and tired.
The applicant claims that they are good people of good character. She claims that they have always abided by the laws of Australia and that they have never breached any Australian laws.
The applicant claims that her [Age 4]-year-old child has a level two autism disorder. She claims he needs regular special care and special health care. She claims this sort of care cannot be provided in Iran.
The applicant claims that having a disability is not culturally acceptable in Iran. She claims that if her child ever goes back to Iran, he will suffer harm for having autism. She claims he would be mocked, hit and abused in public. She claims he would have to hide himself from the public in order to avoid harm.
The applicant claims she no longer believes in Islam or God and because of this, her parents have deserted her. She claims her parents have not talked to her in the last few years. She claims her parents have made it clear that they will not support her in any way and that if they have to, that they would even report her to the authorities.
The applicant claims she takes antidepressant tablets and sees a psychologist on a regular basis.
The applicant claims she has never committed a crime in Australia or anywhere else in the world and that she will not do so in the future.
The applicant claims she has never breached any of her visa conditions in Australia and that she will not do so in the future.
The applicant claims she cannot go back to Iran, because it is not her country and she is not welcomed 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 her Iranian national identity card, religious marriage certificate, Australian visa evidence card, Queensland driver licence, 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 BCC2018/4075125 concerning the cancellation of her 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 her representative dated 17 January 2020, eight character references from friends and community associates, and her statements of claim dated 25 May 2011 and 31 May 2011;
h.The applicant’s application for Australian citizenship form, which was completed on 20 January 2016;
i.All documents submitted to the Tribunal in support of the applicant’s application for review, including a statutory declaration from the applicant dated 25 June 2021; a copy of the applicant’s Iranian foreign resident identity card and accompanying English translation of that document; Australian citizenship certificates for two of her 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 her husband’s case, as the delegate’s decision in both cases was made on the basis of similar information. The applicant attended the hearing with her representative. The Tribunal also received oral evidence from her husband, [Mr A] 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 her 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 her application for a protection visa. As a result of this, the applicant was served with a NOICC of her 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 her application for a protection visa regarding her identity and her 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 her 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 her 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 her representative that the Tribunal might take the applicant’s claims for protection in her 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 her husband. He said how his extended family knew the children of the applicant and her husband. He spoke of how dedicated the applicant was to her 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 122-137, 212-255 and 295-304 in Department file [Number] should not be disclosed to the applicant because the disclosure of these documents would be contrary to the public interest. The certificate further states that the disclosure of these documents would be contrary to the public interest because it may disclose lawful methods of 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 her Statutory Declaration are serious.
The Tribunal noted the applicant’s submission referenced above.
The applicant conceded she provided incorrect information in her Protection Visa application and that she agrees there was non-compliance with s.101(a) or s.101(b) of the Act insofar as her failure to disclose her green card and previous white card. However, the applicant maintains that she is a stateless Faili Kurd and states she does not agree with most of the allegations made by the delegate about the incorrect information she has provided, and she does not agree with the conclusions drawn by the delegate from her identity assessment interview in 2017.
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. 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 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 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’s husband.
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 5] 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’s husband 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’s husband about his deposits into bank accounts in Iran. The Tribunal noted that the applicant’s husband’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], rather a name of [Mr DD]. He explained that his brother changed his name to [Mr D] 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 husband’s interpreter before the delegate agreed that [Mr D] was a common Iranian name. He also confirmed that he had not heard of the name [Mr DD].
The applicant’s husband stated that he owed [Mr D] money and so he repaid it.
He had asked his brother where he should repay it. He was given an account number.
The Tribunal recalled the decision of the delegate that he found that [Mr D] could not have an account in Iran if he did not have identity documents. The Tribunal noted the applicant’s husband’s response in his Statement addressing that finding. The Tribunal noted the applicant’s husband’s statement that [Mr D] had married an Iranian woman and that her father “could get things done”. The applicant’s husband did restate that in the hearing. He said he paid the money into the account [Mr D] 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.
The Tribunal addressed the issue of how the applicants departed Iran. Again, the applicant’s husband maintained that he had obtained false passports for the family, and with the assistance of the smuggler, navigated their way through the international airport.
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.
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.
The applicant’s husband maintained that ten years ago, you could leave Iran on false passports, because they did so.
The Tribunal noted that the applicants arrived in Australia on a boat [in] March 2011. The applicant’s husband could not remember the date he departed Iran.

100. The Tribunal discussed the findings of the delegate in relation to inconsistent evidence as between the applicant and her husband as to where the false passports were collected. The applicant’s husband stated quite emphatically that it was he who organised the passports, not the applicant. She had nothing to do with it. He stated that he knew where they collected the passports. The applicant stated only “she thought” it was at a certain place. He restated that he knew, because he was responsible for them.
101. In any event, the applicant’s husband 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 Ferdowsi Hotel and it was located in Ferdowsi Square.
102. The delegate found that the applicants’ 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 applicants departed on a false passport, a date that pre-dated the new passports.
103. The Tribunal is however concerned with the applicant’s husband’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”.
104. When discussed with the applicant’s husband 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.
105. 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.
106. The applicant confirmed the passports were in their own names and had their photos.
107. The Tribunal asked whether security had asked for the applicant’s husband’s 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 little sight and couldn’t see what was on the passport and didn’t even think about what he would say if asked.
108. The Tribunal stated that it would consider the plausibility of that response.
109. There is no doubt that the applicant’s husband’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.
110. The Tribunal accepts that it is plausible that the applicant’s husband may have acquired false passports (legitimately issued passports with false information), may have paid US$[Amount 1] for them and that the collection point for the passports was Ferdowsi Square and that he left the family for a moment to collect the passports at the hotel in the Square.
111. But the Tribunal remains troubled by the plausibility of the applicant’s husband 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 that the passports were in their own names, which might suggest that the passports were not false at all, but were legitimate passports.
112. The Tribunal is also concerned by elements of the applicant’s husband’s evidence that strain plausibility. It notes that the applicant’s husband 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.
113. 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.
114. The applicant’s husband’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.
115. The Tribunal has found that in the applicant’s husband’s case that there was non-compliance as identified and particularised in the s.107 notice 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.
116. 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.
117. 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.
118. For these reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice with s.101(a) and s.101(b) in the following respects: that the applicant is not an undocumented, stateless Faili Kurd; that the applicant had attained Iranian citizenship automatically upon her marriage to her Iranian citizen husband; and that she is an Iranian citizen and was so at the time of arrival in Australia and at the time she applied for the protection visa.
Should the visa be cancelled?
119. 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).
120. 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.

121. 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.
122. 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).

123. During the hearing the applicant’s husband pleaded that deportation would be psychological death for his family.
124. He stated that his daughter started school in Australia. He went on to stress that having had no education in Iran, she would not be aware of the religious foundations of Iran’s education system. He stated that family has no religious education or background. They have not observed Muslim traditions.

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.

190. The Tribunal has found that the applicant departed Iran using a legitimate Iranian passport.
191. The Tribunal is satisfied that the applicant has no adverse profile in Iran and is therefore unlikely to attract any attention upon her return.
192. 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.

193. The Tribunal noted the psychiatrist’s report that referenced the applicant’s husband’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.
194. The Tribunal noted the psychiatrist’s report referenced his exploitation as a child in Iraq because of his blindness.
195. The Tribunal notes the country information above in relation to the treatment of people with disabilities, and in particular blindness and the obstacles with accessibility he would face in Iran.
196. The Tribunal also places emphasis upon the condition of her son, diagnosed with autism.
197. The Tribunal again notes the country information above in relation to the treatment of people with disabilities, and in particular autism and the difficulties in relation to education that he may encounter.
198. The Tribunal gives this some significant weight against cancelling the visas.
199. An important consideration for the Tribunal is the fact of the impact of cancellation of the applicant’s visa upon her three children.
200. The Tribunal must give due consideration to the rights of the child and family unity obligations.
201. 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. "

202. 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 ... "

203. 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)... "

204. 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 [Age 6] years of age at the time of this hearing.
205. 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.
206. 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.
207. 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.
208. The Tribunal has considered the interests of the elder 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.
209. The applicant has two younger children born in Australia. The applicant contends that the best interests of the children is in the visa 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 started kindergarten and school and are familiar with the Australian way of life and culture.
210. 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.
211. 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]’.
212. 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.
213. 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 autism.
214. 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 her), as the applicant would need to hold or agree to apply for an Iranian travel document to make the return trip.
215. 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
216. 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 her 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 her claims to be granted a Protection visa. The Tribunal notes that the applicant steadfastly maintains her claim that she is a stateless, Faili Kurd.
217. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
218. 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
219. The Tribunal also notes that the applicant’s husband has worked in Australia, and may have some funds by which to re-establish the family back in Iran.
220. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[13]
[13] DFAT Report, paragraph 5.29 – 5.31
221. 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
222. The Tribunal is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) her claims for advantage. It is mindful that each of her “new” claims have failed to persuade the Tribunal, either individually or cumulatively, that she will be persecuted now, or in the reasonably foreseeable future, if she returns to Iran.
223. 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 she has enjoyed the benefits of the health and employment systems, albeit benefits which the Tribunal has not been persuaded she could not obtain in Iran.

224. The Tribunal notes that the applicant’s husband has maintained very regular employment and has accumulated a number of supporters of his hard work and ethics.
225. The Tribunal is very mindful of the impact return to Iran will have on her three children, and in particular her son.
226. 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.
227. The Tribunal is mindful that the elder daughter is a high achiever and leader, both academically and in the sporting community.
228. The Tribunal is also very aware of the differences in lifestyle expectancy should the children be required to return to Iran.
229. 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 homemaker with a stable family; the consequences for her husband and daughter of cancellation; and the period that has elapsed since the non-compliance. It is also particularly cognizant of the applicant’s husband’s mental health condition and his blindness.
230. 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 her credibility and conduct. 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
231. 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
232. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the 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.