2009010 (Migration)
[2021] AATA 709
•15 January 2021
2009010 (Migration) [2021] AATA 709 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2009010
MEMBER:Michael Hawkins
DATE:15 January 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 15 January 2021 at 9:21am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – alleged fraudulent passport – stateless Faili Kurd – incorrect details of identity – Iranian citizenship – treatment of Kurds – illegal exit – advice of people smugglers – medical conditions – employment – assessment of non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 97-105, 107-109, 116, 140
Migration Regulations 1994, r 2.41CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
COT15 v MIBP (No.1) [2015] FCAFC 190
Goundar v MIBP [2016] FCA 1203
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Le [2016] FCFAC 120
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant seeking review is [age] years of age. The applicant arrived in Australia [in] December 2010 at Christmas Island as an unauthorised Illegal Maritime Arrival claiming to be a stateless Faili Kurd born in Iraqi. At the entry interview on 31 December 2010 the applicant stated that his name was [applicant’s name] and he had departed Iran via Tehran International airport [in] November 2010 using a fraudulent Iranian passport that used his photo and was in the name of “[Alias A]”.
The applicant applied for a Subclass 866 (Protection) visa on 19 March 2012. The applicant was granted a Subclass 866 (Protection) visa on 27 March 2012. He was subsequently granted a Subclass (155) (Five Year Resident Return) visa on 26 September 2019.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa pursuant to s.109 of the Act on the basis that the applicant had provided incorrect information in connection with a previous visa application, that is, his application for protection made on 27 March 2012.
The applicant appeared before the Tribunal on 9 December 2020 to give evidence and present arguments. The applicant gave evidence by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant gave evidence regarding the grounds for cancellation of his visa, his past history and current circumstances.
The applicant was represented in relation to the review by his registered migration agent. His representative attended the Tribunal hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.
By virtue of s.107A of the Act, the possible non-compliances that may be specified in a notice under s.107 include non-compliances in respect of any previous visa held by a person.
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 visa holder 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 visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation, subject to the applicant’s response to that notice. It 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 non-compliance set out in the notice?
On 28 November 2019 the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, that is, the NOICC under s.109 of the Act.
[In] December 2010 you arrived at Christmas Island as an unauthorised Illegal Maritime Arrival (IMA) claiming to be a stateless Faili Kurd born in Iraq seeking asylum in Australia.
You attended an entry interview on 31 December 2010 in which you stated that your name is [applicant’s name] and you described the incidents that led you to decide to leave Iran and travel to Australia. You also stated that you departed Iran via Tehran International airport [in] November 2010 using a fraudulent Iranian passport that used your photo and was in the name of “[Alias A]”.
On 26 March 2011 you attended a Protection Obligations Determination (POD) interview regarding your claims for protection. In that interview you again stated that your name is [applicant’s name] and that you departed Iran via Tehran international airport using a fraudulent passport in the name of “[Alias A]” and that included your photo. You provided a Statement of Claims which included the following information:
·Your name is [applicant’s name] and that you don’t have any citizenship of any country, you are stateless and do not have a right to citizenship or a right to reside in any other country;
·You are a Faili Kurd and Shia Muslim that was born in [City 1] on [DOB 1]. You are not aware of the exact place you were born due to your parents being part of a tribe that moved between Iran and Iraq.
·You are married and have [number] children. [Number] of your children reside in Iran and your [son] travelled with you to Australia.
·You fear returning to Iran or Iraq as you are stateless in both countries and have no legal rights.
·In 1980 you were living in Baghdad with your wife when the Iran Iraq war started. At that time Saddam deported Faili Kurds living in Iraq. One morning you and your wife were forcibly deported by the Iraq authorities and were driven to the Iran border. Once you got to the Iran border you were both taken by Iranian official into Iran.
·After three months, you were taken in to a camp in Tehran called [Camp 1]. You were then given a green card and then left the camp to find work. You then continued to live in Tehran for 30 years working illegally as a labourer. You state that you tried to apply for a birth certificate from the Registry Office in Iran but you were told that you are not Iranian and therefore not eligible for a Birth Certificate or Citizenship Certificate.
·You were never allowed to buy property or a car. You were also unable to obtain a drivers license or health insurance. Your children were not allowed to attend school and that you had to pay for them to attend evening schools. They were not given any official record of their studies.
·Two of your children, [Child A] and [Son A], were married but were not allowed to register their marriage. You state that you do not have basic rights of a citizen and are not treated like human beings.
·About nine months ago, you broke your leg while at work. You were taken to a number of hospitals but they all refused to treat you because you were a Faili Kurd who could not provide an identification card or medical insurance. In the end, you were treated at [a named] Hospital and had to pay the sum of five million Tomans for the surgery.
·Before this incident, you were hoping that the Iranian laws for Faili Kurds would change and that you would be given basic human rights. However after what you had gone through at the hospitals, you decided to leave Iran.
·You found a smuggler who called himself [Mr A]. He organised false passports for your wife, your [son] and for yourself. [Mr A] also organised the travel to Indonesia and the boat to Australia. You and your family arrived in Australia [in] December 2010.
·You are stateless and would not be allowed to enter Iran or Iraq. These two countries never gave you citizenship. You lived in Iran for 30 years and was not treated like a human being.
·You believe that if you were to return to Iran that authorities would treat you even worse as a result of departing on false passports.
On 18 April 2011, based on your claims you were found not to meet the definition of a refugee as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and were therefore found not to be someone whom Australia has protection obligations. Your Protection Obligations Determination was referred to an Independent Protection Assessment (IPA).
On 23 January 2012, the Independent Protection Assessment recommended that you be recognised as a person to whom Australia has protection obligations as per the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
On 19 March 2012, you lodged an application for a Protection (Class XA) Subclass 866 visa in the name of [applicant’s name]. In support of the application you provided the application form 866C, Application for a Protection (Class XA) visa.
The delegate noted on page 1 of Part C of the application form titled ‘Application for an applicant who wishes to submit their own claims to be a refugee’ under the section entitled ‘Details of applicant’ and the answers provided by the applicant to questions 1, 8, 19, 20, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, 50, and 53. The delegate further noted that the applicant on page 15 of Part C under the section entitled ‘Your reasons for claiming protection’ indicated that ‘you have signed the following declaration on 21 March 2012 that states in part:
·The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.
·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
The delegate noted that having satisfied all the relevant legislative requirements, the applicant’s Protection visa was granted on 27 March 2012.
The delegate noted [in] June 2016 the applicant lodged an application for Australian Citizenship. As part of the citizenship process the applicant attended an identity interview with the Department’s identity section on 15 February 2017. In the NOICC the delegated noted the following information:
In the identity interview you have stated that your name is [applicant’s name] and that you are not known by any other names. You have stated that [one of your names] is your father’s given name and that [another of your names] is your grandfather’s given name.
Upon initial arrival in Australia you have stated that you did not know your date of birth so the Department has recorded your date of birth as [DOB 2] after you approximated yourself to be [age] years of age.
During the identity interview you have stated that you were born in a village named [Village 1] in the province of Ilam, Iran. You then moved to Iraq at the age of ten or twelve to reside with [an uncle]. This information conflicts with your entry interview in which you have stated that you were born in Baghdad, Iraq and resided there for 30 years before being expelled by Saddam Hussein to Iran. When presented with this conflicting information, you have stated: “I am not young I am really at the end of my life, I have nothing to hide, I do not have any aim to lie, I told them but maybe the interpreter was Persian he interpreted in a different way.”
You have stated that after residing in Iraq for quite some time you have returned to Iran in [year] to marry your wife. You then returned to Iraq with your wife however in 1980 you were both expelled from Iraq by Saddam Hussein because you and your wife are of Faili Kurdish ethnicity. You have stated that you were both put in a truck and driven to the Iraq/Iran border where Iranian soldiers have taken you both to a refugee camp near Tehran. The refugee camp was called [Camp 2] and you stayed there for approximately six to seven months. Upon release from the camp you were issued a green card by the Iranian authorities to allow to remain in Tehran lawfully. This information conflicts with the information you have provided in your Statement of Claims dated 26 March 2011 in which you state that you were at the [Camp 1] refugee camp in Tehran for three months.
While discussing your family composition you have stated that, as well as your son [Son B] who you arrived with, you have [number] other children outside of Australia. You have [two children] named [Son A] and [Child B] residing in Iran and [another child] named [Child A] that lives in [another country]. You have also stated that your [son’s] ([Son A]) family name is [Family name 1]. When questioned as to why your [Son B] has the family name of [Family name 2] but not [Son A], you were unable to provide a plausible response.
You have stated that both of your parents were born in [Village 1], Iran and that they passed away when you were very young. You have stated that you do not have any siblings however when it was put to you that you had previously told the Department that your brother and sister had passed away, you responded by saying that they were very young when they passed away.
You have not provided any identity documents that pre-date your arrival in Australia. You have stated in the interview that you once held a green card given to you by the Iranian authorities upon release from the refugee camp in Tehran in 1980. You have stated that you held the green card for the “first three to five years” however “after five years I did not have any documents in Iran”. You have gone on to state that you could not afford to pay the annual fee so you did not renew the green card.
When asked if you ever held a white card in Iran, you have stated “No, I didn’t have only had the green”. It was then put to you that in your entry interview you have stated that you were issued with a white card in Iran. You were unable to provide a plausible response
You have stated that your [two children] currently residing in Iran do not have any identity documents. And that they initially had green cards “but later no”. When it was put to you that your [Son B] stated in his entry interview that he held a white card in Iran, you responded “his white card had no benefit” and “Maybe he has one but I’m not sure”.
You have stated during the identity interview that you are stateless and not a citizen of Iraq or Iran. When asked if any of your family members are Iranian citizens, you have stated that your [Son A] married an Iranian women and acquired Iranian citizenship “in the last two or three years after he got married, through his wife’s family he got citizenship”. It is important to note that your son would not have been able to obtain Iranian citizenship through his wife because under Iranian citizenship law Iranian citizenship cannot be acquired through a female. If your son is in fact Iranian it would indicate that he was already an Iranian citizen before he got married.
You have stated in the identity interview that you departed Iran on fake Iranian passports organised for you by a smuggler. You state that you went through three different check points at Tehran airport without any complications. When asked what name was on your passport, you have replied “Same name [applicant’s given name]”. When asked what was on the passport of your [Son B], you replied “His name”. It was then put to you that both you and your [Son B], stated in your entry interviews that your fake Iranian passports contained different names. It is recorded in your entry interview that you have stated that the name in your passport was [Alias A variant] and your [Son B] has stated that [a different alias] was the name in his passport. You have then responded “I never said my passport was in a different name. I said passport was in my name maybe the interpreter misinterpreted what I said”.
The contradictory information you have provided has led the interviewer to form the view that you have departed Iran on a genuine Iranian passport. The bio-data details recorded in your Iranian passport would have matched the details recorded on Iranian airport immigration databases when the passport was scanned upon departure and the fact that you were able to depart Tehran airport without any complications has reinforced this. When presented with this information you have replied “The smuggler he arranged everything for us”.
[Son B’s] Facebook profile is under the name of “[Facebook name]”. On his Facebook profile he has declared two family members, [including Child A, with Family name 3] and [Son A, with Family name 3]. Your [Child B] has been located through [Child A’s] Facebook profile under the name of [Child B, with Family name 3]. When asked if your children are known by any other name, you have replied “I don’t think they have another name they only have the one I gave them”. When asked why your children use the family name [Family name 3] on social media, you have replied “I don’t know”.
You have previously confirmed with the Department that your [Child A] had travelled to Australia on a visitor visa. Based on information available to the Department regarding [Child A’s] previous visit to Australia, it has become evident that your family name is [Family name 3 variant] not [Family name 1]. When presented with this information you have admitted that you are in fact an Iranian citizen, you are not a citizen of Iraq and that your Iranian birth certificate number is [number] issued in [a named district in] Iran. You have stated that “My name is [applicant’s first name], it’s true the surname that you mentioned is my real name….My passport is not false. My passport is a genuine passport in my name”.
The delegate concluded based on this information, that the applicant had provided incorrect information regarding her identity and Protection claims at the time of her protection visa application as the applicant was an Iranian citizen and not a stateless Faili Kurd.
The delegate then detailed the nature of the applicant’s non-compliance with s101 as follows:
Non-compliance with section 101(b)
I consider that you have provided an incorrect answer at your entry interview on 31 December 2010 in which you have stated that your name is [applicant’s name], that you were born in Baghdad and that you departed Iran via Tehran International airport using a fraudulent Iranian passport that contained your photo and was in the name of “[Alias A variant]”.
I consider that you have provided an incorrect answer at your Protection Obligations Determination interview on 26 March 2011 in which you have again stated that your name is [applicant’s name] and that you departed Iran via Tehran International airport using a fraudulent passport that contained your photo and was issued in the name of “[Alias A variant]”.
It also appears that you have provided incorrect information on the form 866C as part of your application for a Protection visa.
In Part C of the application form you have provided incorrect information at question 1 where you have again stated that your name is [applicant’s name], which is incorrect as you have admitted that you name is [applicant, Family name 3 variant].
You have also provided incorrect information at question 8 in Part C of the application form where you have stated Not sure as family moved between Iraq and Iran in response to the question of place of birth. This is incorrect as you have admitted to having an Iranian birth certificate issued in [a named district in] Iran with the certificate number of [number].
At question 19 on page 2 of Part C of the application form, you have answered Iraq as your citizenship at birth at question 19 and Stateless as your current citizenship at question 20. This information is incorrect as you have admitted to being an Iranian citizen that departed on an Iranian passport that was issued in your name [applicant, Family name 3 variant].
At question 21 on page 2 of Part C of the application form, you have answered No in response to whether you hold any other citizenship or are a national of any other country. This information is incorrect as you have admitted to being an Iranian citizen.
At question 22 on page 2 of Part C of the application form, you have answered No in response to whether 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. This information is incorrect as you have admitted to being an Iranian citizen with full entitlement to reside in Iran.
At question 23 on page 2 of Part C of the application form you have stated I am recognised as a Faili Kurd in response to how, when and why you lost your citizenship. This information is incorrect as you have admitted to being an Iranian citizen and are not stateless.
On page 3 of Part C of the application form under the section entitled ‘Travel to Australia’ at question 28 you have answered Nil in response to the question about your current travel document. This information is incorrect as you have admitted to having departed Iran via Tehran International Airport on a genuine Iranian passport, issued in your name [applicant, Family name 3 variant], as an Iranian citizen.
At question 30, in response to the question as to whether you have ever had, or used any other passport document you have answered yes and that it was a false passport and that the document number, country of the document and name on the passport was unknown. This information is incorrect as you have admitted that the passport you have used to depart Iran via Tehran International Airport was a genuine Iranian passport issued in your name [applicant, Family name 3 variant]
On page 7 of Part C under the section entitled ‘Your reasons for claiming protection’ at question 41 you have answered Iran and Iraq as the countries that you are seeking protection from in Australia.
In response to question 42 you state that you left Iran as you are a stateless Faili Kurd and you have no right to reside in that country. You have also cited a number of examples where you and your family have not been afforded basic rights however you have specified an incident in which you were injured while at work and denied medical care at a number of hospitals due to being a Faili Kurd. This information is incorrect as you have admitted that you are a citizen of Iran and therefore have the right to reside there lawfully and be afforded the basic rights that a citizen of Iran is entitled to.
In response to question 43 you state that you do not have a country to return to as you are stateless and that you and your family would not be allowed to enter Iran or Iraq. These two countries never gave you and your family citizenship. You also state that you lived in Iran for 30 years and was not treated like a human being. This information is incorrect as you have admitted that you are a citizen of Iran and therefore have the right to reside there lawfully and be afforded the basic rights that a citizen of Iran is entitled to.
In response to question 44, 45 and 46 you state that you believe that if you were to return to Iran, the authorities would treat you worse than they did before due to having left the country on a false passport pretending to be Iranian. You have stated that you were always aware that your movements within Iran were monitored and that you had to obtain permission to travel to another city. You fear that you will be mistreated for leaving Iran illegally and the Iranian authorities will never acknowledge you and your family as Iranian citizens. This information is incorrect as you have admitted that you are a citizen of Iran and departed Iran on a genuine passport and therefore have the right to reside there lawfully and be afforded the basic rights that a citizen of Iran is entitled to.
At question 49 in response to the question regarding how you left Iran, you have answered illegally. This information is incorrect as you have admitted that you have departed Iran lawfully via Tehran International Airport on an Iranian passport issued in your name, [applicant’s name, with Family name 3 variant], issued to you as an Iranian citizen.
At question 50, regarding difficulties you experienced obtaining a travel document (such as a passport) in your home country, you have stated I am stateless. I cannot apply for a passport. This information is incorrect as you have admitted that you have departed Iran lawfully via Tehran International Airport on an Iranian passport issued in your name, [applicant’s name, Family name 3 variant], issued to you as an Iranian citizen.
At question 53, you have stated that your travel document is not valid for return to your home country as you do not hold any valid travel documents. I consider this information to be incorrect as you have admitted to being issued a genuine Iranian passport in your name as an Iranian citizen that you used to depart Iran via Iran International Airport.
The delegate in the NOICC concluded that the applicant had not complied with section 101(b) of the Act as he has provided incorrect answers to questions 1, 8, 19, 20, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, 50, and 53 of the form 866C in his application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled. Therefore, your Resident Return (subclass 155) visa is liable for cancellation consideration for possible non-compliance with section 101(b) under s109 relying on grounds specified at 107A of the Migration Act 1958.
The NOICC notes that by failing to comply with section 101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC through his representative on 20 December 2019. The delegate summarised the applicant’s response as follows:
In his response to the Notice, the visa holder admits that he has provided incorrect information to the Department regarding his identity and claims for protection and that this was encouraged by the people smugglers that they paid for safe travel to Australia. He states that the people smugglers told him that the Department would deport him and his family back to Iran if it was discovered that they were citizens of Iran. The visa holder has stated that the incorrect information was provided because he and his family feared being returned to Iran. The visa holder states he was denied medical care as a result of his Kurdish ethnicity and his house raided and his son’s music recording equipment confiscated by the Basij.
The visa holder is an Iranian Kurd that briefly lived in Iraq with his uncle but was expelled from Iraq after one year. He then completed [number] months of military service, became engaged to his wife and then moved to Tehran to find work. Due to his illiteracy and Kurdish ethnicity, he had difficulty finding decent work. He started labour construction work and eventually purchased a truck to move freight around after he obtained his driver license.
The visa holder states that Kurds never received any assistance from the Government before or after the revolution because they are considered separatists He states this is reflected in the lack of access to education when he was a child. During the 2009 presidential election demonstrations, the visa holder received an injury to his leg. He was taken to hospital but did not receive treatment due to being a Kurd. He lay on the floor in the hospital for four days before he received treatment.
Not long after this, the visa holder’s house was raided by the Basij and they confiscated his son’s [equipment]. His son had been recording the music of upcoming singers and the visa holder believes that someone in their neighbourhood had reported his son to the Basij. The visa holder’s son was threatened by the Basij and told that he must not make any more music otherwise he would be detained. Shortly after, a number of homes of his son’s colleagues were raided by the Basij and their musical equipment was confiscated as part of a wide government crackdown on artists.
These events, happening one after the other, led the visa holder to fear for the safety of his family and he decided to flee Iran. This information was not provided to the Department because of the advice they had received from the people smugglers. They were told that they had to claim to be stateless Faili Kurds otherwise they would be deported if the Department discovered they were Iranian citizens. The people smugglers put the visa holder and his family on the wrong path regarding their asylum claims and he deeply regret the untruths. The people smugglers were paid to get them to Australia and, as a result, they put too much trust in them and their advice.
The visa holder’s Iranian passport was a genuine Iranian passport and was lost in the process of moving from their accommodation in Indonesia to the boat. One of the smugglers asked for their documents and backpacks and said they would be on the boat. The documents and backpacks never appeared on the boat which was probably part of the people smugglers plan so they didn’t have any documents or belongings.
The visa holder has provided identity documents in response to the Notice that consists of an extract translation of his birth record that provides the following information:
ID card Number: [number]
Issuing Authority: State Organization for Registration of Personal Status, Ministry of Interior, Islamic Republic of Iran
Country of Issue: Iran
Date of Issue: [date] Place of Issue: [District]
Given Name: [Applicant] Family Name: [Family name 3 variant]
Date of Birth: [Date] Place of Birth: [District]
Sex: Male Father’s Given Name: [Name]
ID. Card [No]. Issued in Baghdad Mother’s Given Name: [Name] ID. Card No. -- Issued in Region -- of --
The visa holder has also provided a National ID Card and a marriage certificate both issued in the name of [applicant’s name, with Family name 3 variant] with the same ID number listed on hi birth record.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 25 May 2020.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far as the applicant failed to give correct information in his 866 visa application.
The delegate noted that in his response to the NOICC, the applicant provided conflicting information:
The visa holder has provided incorrect information in application form 866C Application for a Protection (class XA) visa regarding his identity and protection claims. On 15 February 2017, during his identity interview, the visa holder was presented with information obtained by the Department regarding his son’s Facebook profile. The Department has found that the Facebook profile of the visa holder’s son operated under the name “[Facebook name variant]” and that he listed his family members as [Child A, with Family name 3] and [Son A, with Family name 3].
The visa holder maintained ignorance as to why his son’s Facebook profile should appear under such a name. A previous admission to the Department that his [Child A] had visited Australia, in addition to the information obtained from his son’s Facebook profile, led the Department to form the belief that the visa holder’s family name was in fact [Family name 3 variant] not [Family name 1]. When presented with this information the visa holder has admitted that he is in fact an Iranian citizen and not a citizen of Iraq. He has also admitted that the passport he used to depart Iran was a genuine Iranian passport issued in his real family name, [Family name 3 variant] as a citizen of Iran.
In his response to the Notice, the visa holder has admitted to providing incorrect information to the Department. He claims that he only provided incorrect information to the Department regarding his status as an Iranian Kurd because the people smugglers led him to believe that the Department would deport him and his family if they were found to be citizens of Iran. The visa holder now believes that the Department would have granted him Protection had he told them the truth. He maintains that he fears that, should he and his family be forced to return to Iran, they will live a life of persecution worse than they did prior to leaving.
In his response to the Notice, the visa holder has provided details of his life in Iran and what he believes would have been his claims for protection in Australia had he told the Department the truth. He claims he was denied medical treatment in a hospital after injuring his leg at a presidential election protest in 2009 and lay on the floor for four days before receiving treatment due to being of Kurdish ethnicity. He claims to still experience pain from the injury due to it not being treated properly at the time. He also claims that his house was raided by the Basij and his son’s equipment used to record musicians was confiscated. The visa holder states that his son was threatened with prison should he continue to record musicians.
The visa holder has provided identity documents that include a National ID card, a marriage certificate and an extract of birth record. In regards to his claims of being persecuted on the grounds of being an Iranian Kurd, it is not clear as to how hospital staff or any of the authorities would be able to identify him as such considering that none of his identity documents state that he is of Kurdish ethnicity and how this could be established as the reason for persecution. Without further clarification from the visa holder as to how this was identified, there is significant doubt cast over these claims considering that he has already admitted to providing incorrect information to the Department in order to obtain a favourable migration outcome.
Based on his admission, I am satisfied that the visa holder has provided incorrect information in the application form 866C Application for a Protection (class XA) visa that was provided in support of his application for a Protection visa. Specifically, the visa holder has provided incorrect information regarding his identity and claims for protection in order to obtain a favourable migration outcome.
Therefore the visa holder has not complied with section 101(b) relying on the grounds specified at s107A of the Migration Act 1958.
Pre-hearing Submission
The Tribunal received a pre-hearing submission from the representative dated 2 December 2020.
The Tribunal commended the representative on the detailed submission.
The submission set out details of the history of the applicant’s arrival in Australia and applications for, and processing, of the various visas applied for and granted.
The representative confirmed that the applicant accepts and acknowledges that he provided incorrect information and did not comply with s.101(b) of the Act.
The representative outlined the circumstances in which the applicant provided the incorrect information, in that the applicant was illiterate and relied upon the advice of the people smugglers with whom the applicant travelled to Australia.
The representative also provided a detailed submission as to the discrimination the applicant experienced as a Kurd in Iran citing examples of that discrimination, including having to take only the hard jobs that no-one else wanted, the children’s accents being laughed at when they were at school, and more recently, his treatment as a patient following a leg injury. He also detailed an incident wherein their house was raided as his son was a musician and his son’s musical [equipment] was confiscated. His son was also threatened that he would be detained if he continued to make music. His son’s colleagues were also raided a short time later.
The representative also provided a plethora of country information about the treatment of Kurds in Iran all of which the Tribunal duly considered.
He also dealt with each of the prescribed considerations to be considered pursuant to s.109.
Review Hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The Tribunal conducted a hearing on 9 December 2020. The applicant attended the hearing with his representative.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his Resident Return visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his protection visa claims. The Tribunal noted that based on all of the evidence before his the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided 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 Notice of Intention to Consider Cancellation, 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 subclass 866 (Protection) visa on 27 March 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and his representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 19 March 2012 as having been read. The applicant and representative agreed.
Conclusion on non-compliance
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the applicant had provided an incorrect name, that is, [applicant’s name variant] rather than his real name of [Applicant name variant, with Family name 3 variant], and the particulars relied upon the applicant’s claim that he was a stateless Faili Kurd and the examples and incidents of discrimination he had experienced as a consequence of being a stateless Faili Kurd.
The applicant accepts that he provided incorrect information in his Protection Visa application and further accepts that there is non-compliance with s.101(b) of the Act as identified by the delegate in the NOICC.
The applicant states that he is remorseful and apologetic to the Government of Australia.
The representative has submitted that the applicant was influenced by people smugglers to lie about his background, and coupled with the fact the applicant is illiterate, and supporting country information that people smugglers recommend identities to be adopted by refugees, the Tribunal should weight this in favour of the applicant.
Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that he did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) 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 r.2.41 of the Regulations. Briefly, they are:
· 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.
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 applicant claimed in his Protection visa application that that his identity was [applicant’s name variant] rather than his real identity of [Applicant’s name variant, with Family name 3 variant], and that he would be harmed by the Iranian or Iraqi government if he returned to Iran or Iraq because he was a Faili Kurd and has no legal rights, that he had lived in Iran for 30 years and had not been treated like a human being and that the Iranian authorities would treat him even worse as a result of departing on a false passport.
The correct information is that the applicant is an Iranian national and departed Iran using his own validly issued Iranian passport.
The content of the genuine document (if any)
The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.
The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
As has been explained in the delegate’s decision and discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.
The representative, in his submission, has provided new claims or grounds on which the applicant believes he may be entitled to protection, including as to the discrimination the applicant experienced as a Kurd in Iran citing examples of that discrimination, including having to take only the hard jobs that no-one else wanted, the children’s accents being laughed at when they were at school, and more recently, his treatment as a patient following a leg injury. He also detailed an incident wherein their house was raided as his son was a musician and his son’s musical [equipment] was confiscated. His son was also threatened that he would be detained if he continued to make music. His son’s colleagues were also raided a short time later.
As these new claims were not before the delegate when making the decision to grant a visa, they could not have been considered by the delegate.
The circumstances in which the non-compliance occurred.
The representative explained the circumstances by which the applicant came to make the claims he did. The Tribunal has referenced the explanation about the applicant’s illiteracy and the role of people smugglers above.
The Tribunal has considered that explanation, but has also considered the evidence provided by the applicant to the Tribunal in the hearing, to the effect that the people smugglers did not threaten the applicant or his family, that they did not feel threatened by the people smugglers but that they felt “uncomfortable” at being moved around by the people smugglers. The Tribunal is satisfied that the applicant acted upon the advice of the people smugglers of his own free will. He formed the view that the advice of the people smugglers to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa.
The present circumstances of the applicant.
The Tribunal noted the representative’s submission that the applicant was now [age] years of age and suffering several medical conditions.
The medical conditions include [specified conditions and treatments].
The representative provided country information about the discrimination people with [disabilities] suffer. The representative provided examples of the discrimination as including disrespect and verbal abuse.
The representative also submitted that the applicant and his wife have an established healthcare network in Australia which allows their conditions to be monitored and remain stable.
The Tribunal discussed with the applicant that the quality of healthcare in Iran in the public sector is of a gold standard and that healthcare is a major government priority. The Tribunal noted that the government spent 7.6% of GDP on health in 2018.[9] The Tribunal also noted that the Constitution stipulates that every Iranian has the right to enjoy the highest attainable level of health.
[9] DFAT Report, paragraphs 2.22 and 2.23
The Tribunal asked the applicant why he would not receive medical or government assistance, given he is Iranian. He replied that what is written is not what is the case for Kurds.
The Tribunal discussed country information from the DFAT Report with the applicant as follows:
An estimated 8 million Kurds live in Iran.
DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities. DFAT further assesses that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities. Those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[10]
The applicant advised that there is no regard for minorities.
[10] DFAT Report, paragraph 3.22
The Tribunal asked the applicant what it was he feared. He replied that he feared that he won’t be treated fairly. He said that it was not a case of fearing death or serious harm, but being treated unfairly.
The applicant stated that he is old, has no money, no job and nowhere to live.
The Tribunal asked about his [sons] living in Iran. He replied that they are both married and have families of their own. They were in no position to help him, and if they were, they would have already done so.
The representative offered that the applicant can’t expect [these] sons to help him as they are immersed in Iranian life.
The representative also submitted that the applicant’s previous experiences of discrimination, particularly in relation to his experience at the hospital after injuring his leg, was evidence of the risk of harm he faces due to his ethnicity.
The subsequent behaviour of the applicant concerning his obligations under Sub Division (c) of Division 3 of Part 2 of the Act.
The Tribunal noted from the decision of the delegate, that the applicant, during his identity interview in relation to his application for citizenship, maintained that the claims he had made in support of his protection visa were true, and only conceded the truth of his identity, and the fact that [his] son was in Australia and had travelled with him, after a great number of irrefutable facts were put to him.
The Tribunal notes the applicant’s apology and remorse and even the comment of his wife that they have lived with the burden of their dishonesty, but it is clear to the Tribunal that the applicant did not voluntarily offer any admission or confession, rather he attempted to maintain the fiction of his identity until it was literally dragged out of him.
Any other instances of non-compliance by the applicant known to the Minister.
The applicant advised that there had been no breaches of his visa terms.
On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance.
The Tribunal notes that his visa was cancelled in May 2020 and that six months have since elapsed. It also notes that incorrect information first occurred when making his protection visa application in December 2010. The applicant advised that the cancellation of his visa was causing him great stress, and that it was also impacting on his own health.
Any breaches of the law since the non-compliance and the seriousness of those breaches.
The applicant advised that he has not breached any law.
On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community.
The applicant advised the Tribunal that he has not worked since being in Australia due to his ill-health.
The representative submitted that the applicant has attended some English classes and made friends and formed a connection with the Australian community.
The Tribunal accepts that the applicant has integrated into his community and has formed a number of friendships.
Whether there would be consequential cancellations under s.140.
The Tribunal notes that the applicant, his wife and his son have made independent applications. They are not dependent on each other.
There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
The Tribunal again noted the representative’s submissions relating to the claims the applicant would have had for a protection visa had he made honest and correct claims.
The Tribunal acknowledges the examples and incidents of discrimination experienced by the applicant in Iran.
However, the Tribunal finds that the examples referred to, which may amount to discrimination, do not, (and to the extent they were in the past) did not, amount to serious harm.
The Tribunal has accepted country information about the treatment of Kurds in Iran and is satisfied that they are not specifically targeted for discrimination on the basis of their ethnicity or religion, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities.
The Tribunal also considered the applicant’s claim relating to his son being a musician and his home being raided and his son’s equipment being confiscated.
The Tribunal considered Country Information contained in the DFAT Report.
Although Iran has a vibrant cultural scene, the music, arts and film industries are subject to strict censorship. The Ministry of Culture and Islamic Guidance reviews books, films and exhibitions for their adherence to Islamic values before publication or exhibition. Western music has been officially banned since the 1979 revolution, but is commonly played in coffee shops, restaurants, taxis and private homes. The Tehran Symphony Orchestra regularly performs classical Western music. Heavy metal music is tolerated. Male and female artists are permitted to perform together on stage, including in choirs and orchestras, although female artists are not permitted to perform solo in front of mixed-gender audiences. Such performances are periodically shut down by the authorities, but continue to occur. Female solo vocalists are not allowed (in May 2019, a female singer was summoned to appear in court after performing solo for tourists in Isfahan Province). The frequency with which authorities have shut down concerts featuring femalemusicians and vocalists has increased under the Rouhani Administration.
A local source told DFAT that filmmakers, musicians and other artists are tolerated as long as their work observes ‘red lines’. ‘Red lines’ include criticism of the Supreme Leader, the IRGC and the Islamic system of governance, as well as anything that is considered to violate Islamic values and principles. As noted, there is significant scrutiny of the social media accounts of well-known figures and celebrities.
DFAT assesses that, while most artists and musicians in Iran are able to perform their works without significant obstacle, the authorities are likely to prevent performances by solo female artists and musicians (or mixed-gender groups of performers). This is more likely to occur in more socially conservative areas. DFAT assesses that artists who cross ‘red lines’ as defined by the authorities would likely attract adverse attention from the authorities. This may include harassment, arrest and prosecution.[11]
[11] DFAT Report, paragraphs 3.104 – 3.106
Whilst not being required to determine the validity of this claim, the Tribunal finds that even if the son’s equipment was so confiscated, and the threats made to the son amounted to persecution of the son, the conduct of the authorities does not impact on the applicant or his wife so as to amount to a real chance of serious harm.
Furthermore, the Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.
Although the applicant was originally granted a protection visa, at the time of the cancellation he was the holder of a subclass 155 Resident Return visa.
The non-refoulement obligations of Australia are not required to be taken into account as a mandatory consideration when determining whether to cancel a visa.[12] The extent to which the Tribunal must go into claims that Australia has protection obligations to the person when considering the discretion to cancel the visa will vary depending upon the circumstances of the applicant.
[12] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
In COT15 v MIBP (No.1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa.[13] The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.[14]
[13] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015).
[14] COT15 v MIBP (No.1) [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].
In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No.1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention.[15]
[15] MIBP v Le [2016] FCFAC 120 (Allsop CJ, Griffiths and Wigney JJ, 9 September 2016) at [61] and [65], overturning Le v MIBP [2015] FCA 1473 (Logan J, 24 December 2015). This case involved judicial review of a personal Ministerial decision to cancel a K4011 Refugee (Vietnamese) Permit under s.501(2) of the Act.
However, it may be necessary to consider any harm claimed by an applicant which may not engage Australia’s international non-refoulement obligations.[16]
[16] In Goundar v MIBP [2016] FCA 1203 (Robertson J, 12 October 2016).
The applicant stated that if he returns to Iran he will not face harm for the reasons he had originally claimed in his protection visa. He also claims that he will not face harm or death, but rather fears being treated unfairly.
100. The representative maintains that the applicant will be persecuted by reason of his Kurdish ethnicity.
101. The Tribunal considers that if the visa was cancelled the applicant would be able to apply for a protection visa where the claims could be assessed. The applicant has not been refused a protection visa and is not therefore prevented from applying for a prescribed class of visa while he is in Australia. There is no information indicating that he would not be able to apply for protection due to any legislative bars. His claims, on the face of it, would be considered to be claims either based on the refugee criterion or the complementary protection criterion. The applicant has not made any claims he will face non protection visa harm in Iran. Accordingly, the Tribunal does not consider that the Tribunal will be in breach of its non-refoulement obligations if the visa were to be cancelled.
Conclusion
102. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa, notwithstanding his present apology and remorse.
103. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on his return.
104. 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.[17]
[17] DFAT Report, paragraph 5.27 – 5.28
105. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[18]
[18] DFAT Report, paragraph 5.29 – 5.31
106. However, the Tribunal notes that the applicant has resided in Australia for around ten years and this is a substantial period of time. It also notes that the applicant has made connections with the community and has various health conditions. The Tribunal also notes that he has enjoyed the benefits of the health system, benefits which the Tribunal has not been persuaded he could not obtain in Iran.
107. 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 be cancelled.
DECISION
108. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Michael Hawkins
MemberATTACHMENT – 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.
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