2008596 (Refugee)

2008596 (Refugee) [2022] AATA 4366 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Roya Majd (MARN: 0701239)
CASE NUMBER:  2008596
COUNTRY OF REFERENCE:                   Other
MEMBER:Denis Dragovic
DATE OF ORAL DECISION:  27 September 2022
DATE OF WRITTEN STATEMENT:         10 October 2022
PLACE OF DECISION:  Melbourne
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 11 October 2022 at 8:49am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – Federal Circuit Court remittal – incorrect information provided in visa application – citizenship – not stateless Faili Kurd but Iranian citizen – return travel on Iranian passport – claim that precursor documents fraudulently obtained – country information – requirements for precursor documents and security checks – some incorrect information conceded – best interests of children – older child’s sport and education, younger child an Australian citizen – possibility of immigration or community detention or departure with family – non-refoulement and international obligations – joint hearing with wife’s – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 109(1), 189, 197AB, 197C(3), 197D, 198(1)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth), r 2.41
CASES
CFD16 v Minister for Immigration and Anor [2020] FCCA 1083
CFE16 v Minister for Immigration & Anor
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA [2001] 107 FCR 133
1901883 (Refugee) [2021] AATA 3216
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had claimed to be stateless when it was determined that she was a citizen of Iran. As such the delegate found that s 101 of the Act in which all questions in an application form are to be completed correctly, had not been met. 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 matter is before the Tribunal because of a Court order. A differently constituted Tribunal had on the 21 July 2016 affirmed the delegate’s decision. In CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration and Anor [2020] FCCA 1083 Judge Riethmuller found error in the Tribunal’s decision with regards to how the member had addressed the question of the best interests of the child. Relevant to that case and the matter before me is that the applicant has two children, one an Australian citizen and the other of Iranian nationality or stateless, depending upon the outcome of the findings in this case.
The applicant appeared before the Tribunal in a joint hearing with his wife whose case was also before this member on 27 September 2022 to give evidence and present arguments. The Tribunal received oral evidence from [Ms A], the applicant’s wife, and [Master B], who is the applicant's son. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal gave its decision to set aside the cancellation of the applicant’s visa at the conclusion of the hearing held on 27 September 2022. The following are the reasons for that decision.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 which reads.
Visa 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.
The notice of intention to consider cancellation (NOICC) particularised the incorrect information by outlining the information provided in the process of applying for a protection visa. In summary, the applicant had claimed to have been stateless throughout the application process.
The incorrect information that was particularised was as follows:
Given the evidence explained above, I consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers in relation to the following information provided in your RSA Application form:
·That you are stateless and do not have Iranian citizenship, as you hold an Iranian passport.
·That you have no identity documents, as you hold an Iranian passport and several identity documents would have been required to apply for that passport.
Given the evidence explained above, I consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers in relation to the following information provided in your Form 80 — Personal particulars for character assessment:
·That you are stateless, as you hold an Iranian passport.
Given the evidence explained above, I consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers in relation to the following information provided in your Statutory Declaration signed on 28 November 2010:
·That you are stateless, as you hold an Iranian passport.
·That you do not have Iranian citizenship, as you hold an Iranian passport.
·That you have no identity documents and are unable to get them, as you hold an Iranian passport and several identity documents would have been required to apply for that passport.
Given the evidence explained above, I consider that you have not complied with section 101(a) and 101(b) of the Act because you have not answered all questions or provided incorrect answers to the following questions on the Form 866 — Application for a Protection (Class XA) visa:
·At question 19 of Part C of the Form 866, where it states 'Your citizenship at birth’, you indicated 'Stateless' as you hold an Iranian passport.
·At question 20 of Part C of the Form 866 where it states 'Your current citizenship', and did not provide a response.
·At question 21 of Part C of the Form 866, where it states 'Do you hold any other citizenship or are you a national of any other country' and you indicated 'No', as you did not declare that you are an Iranian citizenship.
·At question 23 of Part C of the Form 866, where it states 'If you are stateless, how, when and why did you lose your citizenship?' and you indicated 'Parents stripped of Iraqi citizenship in 70's', as you hold an Iranian passport.
·At question 42 to 46 of Part C of the Form 866, in relation to your claims for protection, and you indicated 'Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 28 November 2010 and my interview on 1 December 2010', is incorrect as outlined above.
This information was challenged upon the basis of the applicant, his wife and son returning from Iran and having Iranian passports found in their possession at Australian border control.
In the NOICC the delegate identified that:
Country information indicates that in order to apply for and be granted an Iranian passport, an Iranian national must hold precursor documents such as an Iranian birth certificate and National Identity card. Country information suggests security checks are undertaken at the passport application stage. Furthermore, country information suggests that it is highly unlikely fraudulent Iranian passports will pass through Tehran airports, as there are stringent checks. Your possession of an Iranian passport does not support your claim to be stateless and strongly suggest you are an Iranian national and are recognised as a citizen of Iran.
In a written statement dated 26 December 2014 in response to the NOICC, the visa holder maintained that he was stateless. He wrote that he was born a stateless Faili Kurd in Iran on [Date] and that both of the visa holder’s parents were born in Iraq and expelled in the 1970s.
On appeal the matter was considered by a differently constituted Tribunal. At the hearing, as recorded in the decision record, the applicant and his wife persisted with the claim that they had fraudulently obtained their documents:
13. I accept that the applicant and his wife travelled back to Iran as her brother had been diagnosed with lung cancer. However, the applicant’s account of how he obtained his and his wife’s Iranian passports is inconsistent with country information. The applicant has claimed that when he attended the Iranian Embassy he filled in a form and provided a police report. He claimed that he did not know what documents were provided in Iran but his brother organised the matter and provided him with a number and a date. However, information on the Embassy of the Islamic Republic of Iran in Canberra’s website sets out the procedure for renewing a lost or stolen Iranian passport in Australia and it states that a person must provide an original birth certificate (including copies of all its pages) and its photo and a an original and copy of the military service card or military exemption card. The person must provide a date of their last departure from Iran and the location of their last departure. The process requires the person has previously held an Iranian passport which had been previously been used to lawfully exit Iran.
14. Country information indicates that in order to obtain an initial passport that an applicant must be present and that fingerprints of passport applicants in Iran are obtained when the application is lodged and that identification checks are performed at the same time. Furthermore Iran has been issuing ordinary biometric passports since 2011.3 These have an embedded computer check which contains the owner’s features like face or fingerprints.
15. The applicant told the Tribunal that when he returned to Iran he was told there was person there at the airport but he did not know who he was. He said he and his wife arrived early in the morning and there were two manned passport control booths and that when they left Iran through the airport that there were 7-10 manned passport control booths. His wife said she could not recall how many manned booths there were.
16. The applicant’s passport issued [in] 2013 lists his last day of departure as [September] 2010. Country information before the Tribunal indicates that when a passenger enters and exits Khomeini Airport, the passport and personal information is checked on a computer screen which contains the data of the passport holder.5 In its April 2009 report, the Danish Immigration Service provided information from an unnamed ‘western embassy’ which stated that ‘it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally’. The ‘western embassy’ also stated that this would ‘include bribing of a lot of airport staff members since there are several check points in the airport’. The Australian Department of Foreign Affairs and Trade (DFAT) has recently commented that exit from the Khomeini airport with a forged passport would be difficult, although not impossible if bribery were involved.
17. DFAT have stated that key Iranian identification documents (including a birth booklet known as the shenasnameh) are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use.8 The applicant’s children both have Iranian birth certificates (shenasnamehs). The applicant commented that he obtained the shenasnameh for [Miss C] with her Australian birth certificate and that he had bought one through unofficial channels for [Master B]. His wife did not comment.
18. The applicant in response to the country information set out above has claimed that he was able to obtain all these documents and pass through Khomeini airport due to the high level of corruption and bribery in Iran. I accept that there is a high level of corruption within Iran but I do not accept this is a satisfactory explanation in the circumstances of this case. I do not accept it is plausible or credible that there was such a level of fraud at the Iranian offices for the issuing of passports and shenasnamehs and the Iranian Embassy in Canberra and also at the Khomeini airport on two occasions. He told the Tribunal that when he and his wife arrived in Tehran there were two manned passport control booths and 7-10 manned passport control booths when they departed. Whilst he has claimed that there was a person there at the airport, the applicant did not know who this person was. The country information indicates that whilst it may be possible to leave through the airport illegally, it would require bribing a lot of airport personnel. It indicates that when a passenger enters and exits Khomeini Airport, the passport and personal information is checked on a computer screen which contains the data of the passport holder and his passport indicates that he legally departed [in] September 2010. I do not find it plausible or credible that the applicant could have arrived in and departed Iran at Khomeini airport in these circumstances. That both his children have obtained shenasnamehs supports these findings.
The differently constituted Tribunal found that the applicant held Iranian citizenship and when considering whether the visa should be cancelled affirmed the decision to cancel the visa.
As noted above, the matter was then appealed to the then Federal Circuit Court of Australia and the Tribunal’s decision was quashed on the basis of a jurisdictional error.
On the morning of the hearing of this Tribunal a letter was received by the applicant in which the following was stated:
2. The delegate who made the decision to cancel the visa came to the conclusion that I had provided incorrect information in my protection visa application.
3. I agree that I provided some incorrect information with my protection visa application. I agree that I am an Iranian Citizen and incorrectly advised the department that I was stateless.
The applicant apologised at the hearing and claimed to have been in a dire situation. He provided some of the information surrounding his reasons for leaving Iran. Importantly, when asked about the veracity of his claims that his family originated from Iraq, he provided relevant information pertaining to his citizenship and the question of whether the applicant had provided incorrect information.
The applicant explained that Saddam Hussein had expelled his parents from Iraq. As they crossed the border they were asked to register. He claimed that his father bribed the official at the crossing to register him as being born in a small village in Iran. He said that at that time there were no computers and everything was done by hand. By listing the father’s birthplace as a small rural village it would be unlikely to be discovered. He claimed that during that period it was normal for women to give birth but not register the birth for a decade later. This loose approach allowed for fraudulent activity such as what the applicant’s husband claims that his father undertook. He claims that by being registered at the border as having being born in Iran he was subsequently able to obtain legitimate documents regarding his Iranian status.
The applicant said that for him to obtain Iranian citizenship documents it was dependent upon his parents’ documents.
The applicant’s wife said that her father acquired the document that she is Persian. She confirmed that her parents were Iranian citizens. She believes that her parents bribed someone at the border, but she reaffirmed that her citizenship is real.
In a statutory declaration dated 26 December 2014 the applicant wrote that his parents were expelled from Iraq in the 1970s and that he was born on [Date] in Iran.
When I asked whether it would be possible for the Iranian government to cancel their citizenship because their parents obtained it fraudulently the applicant’s wife said that she doesn’t think so, whereas the applicant said that he is not sure, but if they found out that it was based upon bribes then they could cancel.
Country information on this matter is quite clear:
However, in pre-revolution Iran, there was the possibility of involuntary loss of nationality under certain conditions for those who had naturalised as Iranian citizens. Article 981 of the Civil Code (which was repealed in 1982) stated that “If within a period of five years from the date of issuance of the document of nationality, it becomes known that the person naturalised as an Iranian national has been a deserter from military service and also if, before the expiry of the period fixed by Iranian laws for the prescription of prosecution in the case of offences or of imposition of consequent punishments, it is uncovered that the person accepted as an Iranian national was previously convicted of important offences or public crimes, the Council of Ministers will issue a decision revoking Iranian nationality from that person”.
After the Revolution, nevertheless, involuntary loss of citizenship that could lead to statelessness was explicitly abolished by Articles 41 and 42 of new Iranian Constitution. Article 42 states that “Foreign nationals can become Iranian citizens within the limits set by the law. Their nationality may be revoked if another nation offers them citizenship or that person demands such a revocation”.
4.2.3. Fraudulent Acquisition of Nationality
As mentioned above, an Iranian convicted of the highest criminal charges may not under any circumstances be deprived of Iranian nationality. This leads to the following question: what if a person is found to have acquired Iranian citizenship fraudulently? Legal scholars have answered this question in two different ways; Some believe that despite the repealing of
Article 981 of the Civil Code, the Iranian government should be able to revoke the acquired citizenship of such a person. However, referring to the repeal of Article 981 of the Civil Code, some argue that the government has no right to revoke an individual’s citizenship. It seems that according to the provisions of Articles 41 and 42 of the Constitution as well as intentional omission of Article 981 of the Civil Code -which was in contradiction with the above-mentioned principles there should be no longer any question on this matter.[1]
[1] Eliyeh Delavari, ‘Report on Iranian Citizenship Law’, Robert Schuman Centre for Advanced Studies, European University Institute, September 2020 p13

Based upon this expert analysis, it is apparent that changes to the Nationality Act and the Constitution do not identify fraudulently obtained citizenship holders as non-citizens and they preclude the state from depriving the applicants of their fraudulently obtained citizenship.
As such, while the applicant’s parents did obtain their citizenship fraudulently, once the children obtained their citizenship, it could no longer be revoked and as such made the applicant and his wife undisputed Iranian citizens. For this reason, I find that the applicant is an Iranian citizen.
For this reason, I find that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations.
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.
The correct information
The correct information is that the applicant is a citizen of Iran. This is a fundamental piece of information among the information provided by the applicant to the Department and as such I place considerable weight in favour of cancellation.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a protection visa on the basis of the claim that he and his wife feared persecution for being undocumented, stateless Faili Kurds. The correct information is that they were documented citizens of Iran who are Faili Kurds. The country information regarding stateless Faili Kurds used in the decision weighed heavily in the outcome to grant the applicant a protection visa. As the decision to grant the applicant a visa was wholly based upon the incorrect information, I place considerable weight in favour of cancellation.
The circumstances in which the non-compliance occurred
The non-compliance was the provision of incorrect information to Departmental officials.
The applicant said that it was fear that drove them to lie. He said that others in the detention facilities told them that if someone has Iranian documents, they will ask you to leave Australia. This scared them, so they lied. I asked why they changed their mind to provide the truth after eight years of maintaining their lie. The applicant said that he utterly regrets what he has done, he has a pain in his arm that he believes is as a result of the tension from maintaining the lie. He said that they decided to tell the truth. The applicant’s son said that his parents were tired of the stress.
The present circumstances of the visa holder
The applicant has two children, both are minors. As such their circumstances and in particular the best interests of each, although discussed here, are a primary consideration.
When asked about the choices they would make with regards to voluntarily returning to Iran if their visa was cancelled, a matter further discussed below, the applicant and her husband said that they would refuse to return and as such would remain in immigration detention. I accept their willingness to refuse to return. As a result, though, they said that without family or friends in Australia to whom they could entrust the care of their daughter, she too would need to be with them in immigration detention.
This creates an unfortunate situation of the probability of an Australia citizen being detained in immigration detention. As engaged with further below, it is possible that the Minister would grant the applicant and her husband a waiver allowing them to live in ‘community detention’, but this is speculative.
Alternatively, the applicant’s resolve may waiver and together they may decide to return to Iran rather than remain in immigration detention. Even in those circumstances the applicant’s daughter faces challenges.
The applicant’s daughter is [Age 1] years old. Although she speaks Persian, having learned at home, the level is lower than her English. She said that she can understand kids’ shows in Persian but not adult level shows. The child’s parents fear that she will have to wear a hijab were they to move to Iran. The child’s father said that one of the reasons that they remain in Australia is because of the treatment of women in Iran. They referenced the recent protests against the regime for the death in custody of Mahsa Amini, a 22-year-old Kurdish woman who was arrested for a minor infringement of the dress code for women. They were concerned over the lack of choice that the child would have in choosing her own faith.
In addition, the family are not practising Muslims. The applicant’s daughter does not have the requisite knowledge of Islam to be able to participate in the social rituals prevalent in the country. The applicant’s wife said that you have to display your adherence to Islamic rules in every aspect of life. For women this means wearing the right clothes and for men, as the applicant explained, this means attending prayers.
At the hearing, the wife of the applicant described her aspirations for her daughter as being that she can do what she wants to do in her life and to be a happy person in a way that she wants to be.
Based on the issues raised, noting that the applicant’s daughter would either find herself in immigration detention as an Australian citizen, potentially in community detention but this is speculative, or were their will to waiver she would be forced to live in Iran. The life that she would lead would be difficult to transition into not only for the reasons of language and schooling but also culture and religion. When considering the best interests of the applicant’s daughter, I acknowledge that there is value in connecting with her cultural roots. As a community Australia places weight on the ability of Aboriginal and Torres Strait Islander people maintaining ties to their community and migrants establishing vibrant diasporas to maintain some essence of their culture. But this is outweighed by the restrictions upon her freedoms that she would face. Freedom of religion is a fundamental freedom enshrined in the International Covenant on Civil and Political Rights and one of the rights established through the Universal Declaration of Human Rights. Iran does not allow for freedom of religion. The reference to the death of Mahsa Amini and the brutal crackdown upon protestors by the daughter’s parents reflects objectively grounded concerns of a society that will limit her ability to embrace these freedoms.
The child is established at school. Her education would suffer as a result of relocation. While many children relocate, particularly children of diplomats, the circumstances of relocation for an ethnic Kurdish family with few resources and fewer qualifications to provide for the necessary transitional schooling would result in the daughter being placed in schooling far below her age and as a result hampered in her ability to establish any meaningful relationships through her schooling.
Overall, and particularly noting the circumstances of possibly seeing an Australian citizen in immigration detention, I find that the best interest of the daughter is that the visa is not cancelled. I place a very heavy weight against cancellation based upon her circumstances.
The applicant’s other child is a [Age 2]-year-old son. As he was born in Iran and travelled to Australia applying for a protection visa together with his parents, the son’s visa would be consequentially cancelled under s 140 by operation of law as a result of his father’s visa being cancelled.
He is a high performing athlete who is currently playing in [an Age-group Sport competition]. Based upon continuing high performance he said that he could be scouted in the [Age groups] and/or the men’s national teams. If that were to occur, he would be representing Australia in the next few years. He said that his technical skills are there, but he doesn’t have the strength.
In addition to his [Sport] playing, he is studying in year [Number] with plans to get into [Subject] at university. He believes that he will be accepted as he claims to be doing very well at school.
The son claims that he never continued his learning of Persian since leaving Iran as a 5-year-old. He said that although he understands the words, when they watch a Persian movie, he doesn’t understand the jokes or the slang. He said that he is not fluent. He is concerned that he is unable to communicate with the required niceties and that this can lead to unintentional disrespect, which in turn would lead him into trouble.
The applicant said that while he can speak Persian he can’t read or write it at all.
The applicant’s son also expressed concern about being called up to perform military service. He said that he doesn’t want to represent the country, even if it is simply making food or undertaking clerical work. He said that he doesn’t want to do anything to support Iran. He said that he doesn’t want to hold a gun or shoot anyone. He objects that there are no freedoms and no rights in the country.
Through the process of engaging with the applicant’s son, it is apparent that he has had little interest in the language, culture, religion or politics of Iran. I was left with the distinct impression that he doesn’t know much about Iran nor about the life and circumstances of his parents.
Regarding his best interests, his future ability to sustain and fulfill himself based upon his current circumstances lies in [Sport] and [Subject]. I asked the son why he couldn’t play for the Iranian [Sport] team, to which he equivocated and did not give an answer. I accept that being a known quantity in Australia the applicant’s successes in [Sport] would most likely occur in Australia, but the best interest of the child is not limited to where he would earn more money or excel in a career or profession. Rather, a holistic consideration needs to be taken including consideration of all factors that would lead to the pathway that is in his best interests. This is a highly value laden consideration that for someone of the son’s age is best informed by the child’s own priorities. [Sport] is clearly something that he sees as an important part of his life but based upon the limited evidence before the Tribunal he could pursue a professional [Sport] career in Iran albeit with some challenges in transitioning and potentially at a lower level.
The applicant has studied hard in Australia and established his academic knowledge through the English language. His reward for this effort is a pathway to [Subject]. Was the applicant to be removed and required to re-establish himself in Iran, his future pathway to university studies would be unlikely as a result of his limited skills in Persian. He described them as child-like and at a 5-year-old level. While a white-collar job such as being [an Occupation] is not necessarily any more in the best interest of a child than a blue-collar job or one as a labourer, the hardship that would arise for him from having to dismiss his career aspirations and accept that the effort he put into his education has amounted to naught, would be a heavy burden to bear. It would have its own ramifications both from a mental health perspective but also from his ability to sustain himself. Would he be able to find a job without any technical trade skills and limited language skills? I find that it would be very difficult for him and this adds a further layer of hardship.
While I accept that it can be in the best interests of a child to be connected to culture, land and community, meaning that there is some value in the applicant being repatriated, that the applicant has shown so little interest in his home country indicates that any purported value is illusory unless or until he openly accepts his connection to Iran. Until such point, the applicant would not benefit and instead would suffer harm arising from his inability to speak and write Persian compounded by a disinterest bordering on animosity towards the language, people, culture and government. This would also manifest itself in ways that would be contrary to the best interests of the son, most likely in the form of push back by society and in particular the Basij who maintain the regime’s public order.
For these reasons, when considered holistically, I find that it is in the best interest of the applicant’s son that his mother’s visa is not cancelled. I place some weight against cancellation.
There are no other present circumstances that are relevant.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There are no other known behavioural concerns relating to the obligations upon visa holders in Subdivision C of Division 3 of Part 2 of the Act. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance before the Tribunal. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.
The time that has elapsed since the non-compliance
The applicant was granted a protection visa on the 22 June 2011. He has been in the country for over eleven years. This is a substantial period during which he has established ties to the community and lost ties to his former community.
Given the extent of the period in Australia I place considerable weight against cancellation of the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no breaches of the law known to the Tribunal. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.
Any contribution made by the holder to the community.
The applicant did not provide any information regarding his contributions to the community. For this reason, I place no weight on this factor.
Other considerations
The visa of the applicant’s son was consequentially cancelled following the father’s cancellation. The daughter, being an Australian citizen, is not affected by these provisions. As I have taken into consideration the circumstances of the son above in terms of the present circumstances of the applicant having a son whose visa would consequentially be cancelled, I place no additional weight when considering this factor.
Australia holds international obligations that arise from unenacted but ratified treaties including treaties such as the Convention on the Rights of the Child (CRC), International Covenant on Political and Civil Rights (ICPCR) and those that create non-refoulement obligations including the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention Relating to the Status of Refugees.
With regards to the CRC, the circumstances of the children have been outlined earlier. Namely, that weight was given for the circumstances of the children in a way that considered their best interests arising from Article 3.1 of the CRC in which it states that, ‘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.' The CRC will not be breached as long as the Tribunal does ‘not treat any other consideration as inherently more significant than the best interests of [the children]’.[2] To avoid double counting the weight of the best interest of the children, I give neutral when considering Australia’s obligation to uphold the CRC.
[2] Wan v MIMA [2001] 107 FCR 133 at 32.
I accept that the applicant is liable to be detained under s.189. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non-citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request to be removed. If an unlawful non-citizen does not request to be removed they are liable to be removed under s 198, subject to the provisions of the new subsections 197C(3) and s197D of the Act, which was inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) and came into effect on 25 May 2021.
The provisions of the new subsections are relevant with regards to Australia’s international obligations against refoulement. I refer to the reasoning in 1901883 (published), a case heard by this member and Deputy President Jan Redfern as it relates to the interpretation and implementation of these amendments. In short, removal under s 198 does not necessarily follow from a person becoming an unlawful non-citizen by reason of a cancellation because there is now a procedure under ss 197C(3) and 197D which provides for a further decision to be made about non-refoulement. As such I give no weight to considerations of the applicant being refouled.
As noted above, s 189 leaves the applicant liable to be detained. The applicant indicated that he would refuse to voluntarily return to Iran. According to the country information from the Department of Foreign Affairs and Trade, the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018.[3] This would apply to the applicant because he arrived in Australia in 2010.
[3] DFAT Country Report: Iran, 14 April 2020 [5.27]. Australia and Iran entered into a Memorandum of Understanding to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia
There is no information before me to suggest the applicant may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country.[4]
[4] Section 36(3) of the Act provides that Australia does not have protection obligations if a non‑citizen can avail themselves of protection in another country
As such, unless there is a change in Iranian policy or the applicant changes his mind and decides to return to Iran voluntarily, it is likely the applicant would be in detention for an extended period. This will be the case irrespective of the effect of the amendments to the removal provisions because even if a new assessment of protection obligations is undertaken, country information suggests that Iran will still refuse to accept an involuntary returnee.
Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is colloquially known as ‘community detention’. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[5]
[5] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration. None are relevant to the applicant’s circumstances. Among the public interest factors listed as being viewed favourably by the Minister for the grant of a residence determination and relevant to the applicant are family composition, health and well-being and relevantly:
where the person has a close relationship with an Australian citizen or permanent resident and not making a Residence Determination would result in irreparable harm and continued hardship to an Australian citizen or permanent resident;
any other significant issues concerning the person, including, but not limited to, unique family circumstances or health issues;
Circumstances for the grant of a residency determination appear favourable in this case due to the applicant having an Australian citizen daughter, but the prospects of such an outcome ultimately is speculative. For this reason, I place some weight against cancellation for the reason that the applicant may remain in indefinite detention.
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. When considered cumulatively, weighing all of the factors discussed above and noting in particular that the best interests of children within Australia’s jurisdiction, namely the daughter in particular but also the son, are a primary consideration, I find that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Denis Dragovic
Deputy President

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 4366

27 September 2022

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