2009228 (Migration)

[2021] AATA 748

2009228 (Migration) [2021] AATA 748 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2009228

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 9:25am

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 Kurdish women – illegal exit – advice of people smugglers – medical conditions – employment – assessment of non-refoulement obligations – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 107, 109, 116, 140
Migration Regulations 1994, r 2.41

CASES

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 1235  

Any 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

1. 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 (IMA) claiming to be a Stateless Faili Kurd born in Iraq. The applicant arrived with her husband [Husband name] and her son [Son A].

2. At an entry interview on 31 December 2010 the applicant stated that her name was  [applicant’s name], born in [City 1] and also she had departed Iran via Tehran airport “around 1 month” prior to the interview using a fraudulent Iranian passport that contained her photo and was in the name of “[Alias 1]”.

3. The applicant applied for a 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 18 October 2019.

4. 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).

5. 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, her application for protection made on 27 March 2012.

6. 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 her visa, her past history and current circumstances.

7. The applicant was represented in relation to the review by her registered migration agent. Her representative attended the Tribunal hearing by telephone.

8. 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

9. 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.

10. 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.

11. 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?

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice and, if so, whether the visa should be cancelled.

    Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?

13. 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.

14. 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?

15. 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 arrived with your husband [Husband name] (DOB [of husband]) and your son [Son A] (DOB [of Son A]).

    You attended an entry interview on 31 December 2010 in which you stated that your name is [applicant’s name], born in [City 1], Iran 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 airport “around 1 month” prior to the interview using a fraudulent Iranian passport that contained your photo and was in the name of “[Alias 1]”.

    On 26 March 2011 you attended a Protection Obligations Determination (POD) interview regarding your claims for protection. In that interview you have again stated that your name is [applicant’s name]. You have provided a Statement of Claims that includes the following:

    Introduction

    ·Your name is [applicant’s name], you are currently unemployed and are being held in Immigration detention in [a named location].

    ·Your husband’s statement was interpreted to you by an accredited Persian Interpreter and you agree with the claims made in the statement as to why you were persecuted in Iran and Iraq and fear returning to either of those countries due to your ethnicity being Faili Kurd.

    ·You do not have citizenship of any country and are stateless. You do not have a right to citizenship or a right to reside in any other country.

    ·You are a Faili Kurd and a Muslim Shia. You were born in [City 1]. You lived between Iran and Iraq mainly in the [region] of [City 1] for over 25 years and have lived in Iran for 30 years. Although you have lived in Iran all your life, you do not have Iranian citizenship because you are a Faili Kurd.

    ·You are really upset that you have wasted your youth in a country where you have not been given basic human rights. You lived in camps all your life. Living in Iran was like living in a detention camp. You only wanted a normal life in Iran and only wanted to be given basic rights to study and work. For 3 years you lived in hope that things would change. Every time a new President was elected in Iran you hoped that he would give Faili Kurds some basic human rights to live in Iran but every person has a limit to what he/she can bear and take.

    ·When your husband was treated less than an animal in the hospitals in Tehran for being a Faili Kurd you knew that your situation would never change and you had to leave to save yourselves from the constant and never ending persecution.

    ·You always wanted to study but you were not allowed and are now illiterate. You are very embarrassed that you are illiterate. You knew that if you studied and learnt a skill you would be able to provide a better life for your children but you weren’t allowed to study.

    ·Every time your husband and children went out to work you would fear for their safety. You always lived in fear.

    Why you left that country

    ·You lived in Iran all your life but are stateless there because you are a Faili Kurd. You were deported from Iraq with your husband for being a Faili Kurd. In Iraq you were persecuted and threatened and were called “Ajam” which means Iranian in the Arabic language and in Iran you were persecuted and called Arabs. You have no country to return to.

    What you fear may happened to you if you return to that country and why

    ·You know for sure that if you return to Iran you will be killed by the Iranian authorities. You were not allowed to move from Tehran without permission by the Iranian authorities. For 30 years you lived in the same place and never went for a holiday in Iran in fear of being detained or mistreated by Iranian.

    ·Your life in Iran was so bad that you accepted to do the most difficult thing a mother can do and that is to leave your beloved children. You took the risk of being killed in the ocean in the hope of living the rest of your life in a country where you can call home. You have no country to return to and don’t have citizenship of any country. You are stateless.

    Who do you think may harm/mistreat you in that country and why

    ·You believe if you return to Iran the authorities would persecute you for leaving Iran illegally with a false passport. You fear that you will be mistreated and persecuted due to your ethnic background like before.

    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, 4, 7, 8, 12, 13, 19, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, 50, 52 and 53.

16. The delegate noted that having satisfied all the relevant legislative requirements, the applicant’s Protection visa was granted on 27 March 2012.

17. The delegate noted [in] June 2016 the applicant lodged an application for Australian Citizenship. As part of the citizenship process you have attended an Identity Interview with an Identity Officer of the Department’s identity section on 15 February 2017. The delegate then described the following information in relation to the applicant’s identity interview:

    You have provided consistent name and date of birth information for all interactions with the Department. During your entry interview on 31 December 2010 you stated that you had previously been in possession of both a green and white card whilst living in Iran. The current location of the cards was recorded as being in Iran. In the Identity Interview, you were questioned in further detail regarding the green and white cards. You stated that you had only ever held a green card which contradicts your original statement and you made no reference at all to having held a white card.

    When asked to provide further detail about the green card, it became evident to the identity officer that you had no genuine understanding of the document, its issuing/renewal process or the entitlements it afforded. You described having to renew the card every three months initially and then every six months after that. You stated that the card afforded you no entitlements and that it only permitted you to live in Iran. You were unable to recall what information was written on the card or the name of the office you attended every three to six months to renew the card. You were also apparently unaware that the green card was replaced by the white card in 2002. Finally, when you were asked the current location of the card, you stated that you had thrown it away before you left to come to Australia, as you “never thought it would be helpful” to retain the document.

    Contrary to your claims that the temporary registration cards afford no entitlements, information available to the Department indicates that the holder of a refugee registration card has a number of rights that include, but is not limited to, being able to attend school, rent a house, and apply for work rights . Based on your answers provided in the interview it was apparent to the identity officer that you knew very little about the green card.

    In the Identity Interview you also described how you claimed you departed Iran for Australia via Imam Khomeini airport in Tehran on an Iranian passport obtained for you by your husband. You claimed that whilst the photo in the passport was your own, the passport was in the name of [Alias A variant]. When asked about the process of obtaining the passport, you claimed you did not know how your husband obtained the document and did not know whether it was a genuine document.

    Despite claiming to have departed Iran using a passport issued with a name that is not your own, you described having no issues with immigration or security when leaving via Imam Khomeini airport. Information available to the Department advises that there are multiple security check points in place at Imam Khomeini International Airport. There are a total of five checks that occur in the area that is for travellers only and at least three of them include a passport check. Immigration Police, Revolutionary Guard and Airport Personnel conduct the checks. It is implausible that you were able to pass freely through the various security point without incident if you were travelling on a non-genuine passport or a passport that was not issued in your name. This information, combined with your limited knowledge regarding the green card has led the interviewer to doubt the credibility of your claims to have lived in Iran as a stateless Faili Kurd and you departed Iran using your own Iranian passport issued due to your Iranian citizenship status.

    In the Identity Interview, when asked about your place of birth you were unable to provide a specific place of birth stating that you were born somewhere between Iran and Iraq despite previously advising the Department that you were born in Ilam, Iran.

    You advised that you lived in Ilam until your husband came from Iraq to marry you. You were unable to recall where you married your husband however you did recall returning to Iraq with your husband. You were not able to remember whereabouts in Iraq you lived. The interviewers found that you had extreme difficulty in recollecting this period of your life and when you were able to provide answers they were often vague or contradictory thus the interviewers formed the view you were not providing genuine responses to the questions.

    When asked about your family composition, you stated that you have [number] [children]. All of your children, except [Son A variant] who travelled with you, remained in Tehran.  At this point it was put to you that a Facebook profile for your son [Son A variant] had been located under the alias family name of [Family name 1]. The profile also linked to several other people who shared the family name of [Family name 1] including those that share the same given names as your children that you had listed in your family composition in your entry interview and in the Form 80 provided in support of your Protection visa application. These included your [Child A] and your [Child B].

    These Facebook profiles also linked through to the Facebook profile of an individual by the name of [Mr A] which is of note because he shares the same family name as you. A search of departmental systems have located a [Mr A] who arrived in Australia some 11 months prior to you. In his entry interview [this person] has claimed to have departed Iran on an Iranian passport containing his photo but in the name of [Son B, with Family name 1]. The name [Son B] matches that of one of your sons and the name [Family name 1] matches the Facebook profile of your other son [Son A variant].

    This information was presented to you and it was put to you that [Mr A] is in fact your son [Son B] to which you denied have any connection to [Mr A]. It was then put to you that movement records had been obtained for an individual that had entered Australia in April 2014 under the name of [Child A, with Family name 1 variant]. The incoming passenger card for [this person] included the address of [Address 1]. This matches the address of you and your family at that time. When asked to comment on this information, you stated that [this person] was a friend of your [Child A] who lived in [Country 1] and had come to visit you. It was put to you that the Department held the view that [Child A, with Family name 1 variant] is your [specified child].

    After continuing to deny this connection, you eventually conceded that [Child A, with Family name 1] is your [specified child]. You then confirmed you and your family, including your husband and son in Australia, were in fact not stateless but were Iranian nationals. You conceded that you had never been to Iraq and that your true name was [applicant’s name, with Family name 2] and the family name of your husband and children is [Family name 1 variant]. You claimed you were unable to clarify your date of birth due to memory failure.

    You then confirmed that you possess Iranian identity documents including a National ID card, Shenasnameh (birth certificate) and marriage certificate. You also confirmed that you departed Iran on your own genuine Iranian passport. When asked if you could provide these documents, you advised that you would do so. To date, these documents have not been provided to the Department to assist in verifying your identity.

18. 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.

1. The delegate then detailed the nature of the applicant’s non-compliance with s101 as follows:

   Based on this information, I consider that you have provided incorrect information regarding I consider that you have provided an incorrect answer in your entry interview on 31 December 2010 in which you have stated that your name is [applicant’s name], you described the events that led you to depart Iran and that you departed Iran via Tehran International Airport using a fraudulent Iranian passport that contained your photo was in the name of ‘[Alias 1]’. The correct information is that you are a citizen of Iran that departed Iran via Tehran International Airport using your Iranian passport issued in your name [applicant’s name, with Family name 2].

   It also appears that you have provided incorrect information in the form 866C Application for a Protection (Class XA) visa.

   ·     At question 1 in Part C of the application form you have stated your family name as [applicant’s family name] and your given name as [applicant’s given name]. This information is incorrect as you have admitted that your name is [applicant’s name, with Family name 2].

   ·     At question 19 you have answered Stateless in response to your citizenship at birth. This information is incorrect as you have admitted that you are a citizen of Iran and were born in Iran.

   ·     At question 21 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 a citizen of Iran.

   ·     At question 23, if you are stateless, how, when, and why you lost your citizenship you have answered I am recognised as a Faili Kurd. This information is incorrect as you have admitted to being a citizen of Iran, you are not stateless and that you have never been to Iraq.

   ·     At question 28 you have answered Nil as to the details of your current travel document. This information is incorrect as you have admitted to being a citizen of Iran that departed Iran via Tehran International Airport using an Iranian passport issued to you in your name [applicant’s name, with Family name 2].

   ·     At question 30 you have answered Yes regarding whether you ever had, or used, any other passport or travel document, stated that it was a false passport, the document number is unknown, country of document is unknown, name on passport is unknown and that the smugglers took it. This information is incorrect as you have stated that you are a citizen of Iran, that you departed Iran via Tehran International Airport using an Iranian passport issued in your name [applicant’s name, with Family name 2].

   ·     At question 41 you answered Iran and Iraq as the countries that you are seeking protection from in Australia. This information is incorrect as you have admitted to being a citizen of Iran and are not in fact stateless. You have not provided any further evidence since this admission to lead the Department to believe that you are not afforded the basic rights of an Iranian citizen while in Iran.   

   ·     At question 42 you have stated that you have lived in Iran all your life but are stateless due to being a Faili Kurd. In Iraq you were persecuted and threatened and called ‘Ajam’ which means Iranian in Arabic language and in Iran you were called Arabs. You have no country to return to. This information is incorrect as you have admitted to being a citizen of Iran and are not in fact stateless. You have not provided any further evidence since this admission to lead the Department to believe that you are not afforded the basic rights of an Iranian citizen while in Iran.   

   ·     At question 43 you have stated that you know for sure that if you return to Iran that you will be killed by the Iranian authorities. You were not allowed to move from Tehran without permission by the Iranian authorities. For 30 years you lived in the same place and never went for a holiday in Iran in fear of being detained or mistreated by the Iranians. Your life in Iran was so bad that you did the most difficult thing a mother could do which is to leave your beloved children. You took the risk of being killed by the ocean in the hope of living the rest of your life in a country that you can call home. You have no country to return to and don’t have citizenship of any country as you are stateless. This information is incorrect as you have admitted to being a citizen of Iran and are not in fact stateless. You have not provided any further evidence since this admission to lead the Department to believe that you are not afforded the basic rights of an Iranian citizen while in Iran.   

   ·     At question 44 and 45 you have stated that you believe that if you return to Iran, you will be persecuted for leaving illegally with a false passport. You fear that you would be mistreated and persecuted due to your ethnic background like before. This information is incorrect as you have admitted to being a citizen of Iran and are not in fact stateless Faili Kurd. You have not provided any further evidence since this admission to lead the Department to believe that you are not afforded the basic rights of an Iranian citizen while in Iran.   

2. The delegate in the NOICC concluded that the applicant had not complied with section 101(b) of the Act as she has provided incorrect information in her entry interview and her Protection Obligations Determination interview. It is also considered that she has provided information in responses to questions 1, 12, 19, 21, 23, 28, 30, 41, 42, 43, 44 and 45 of the form 866C in her application for a Protection (class XA) visa. Therefore, the visa holder’s 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.

3. 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

4. The applicant responded to the NOICC through her representative on 20 December 2019. The delegate summarised the applicant’s response as follows:

   In her response to the Notice, the visa holder, through a statement provided by her Migration Agent and a statutory declaration completed by her husband [husband’s name], admits that she has provided incorrect information to the Department regarding her identity and claims for protection and that this was encouraged by the people smugglers that they paid for safe travel to Australia. She states that the people smugglers told her and her family that the Department would deport them 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 she feared being returned to Iran. Her husband was denied medical care as a result of his Kurdish ethnicity and her house raided and her son’s [specified] equipment was confiscated by the Basij.

   The visa holder got engaged to her husband when she was [age] years of age after he returned from completing his military service. She is from [a named village] and was illiterate as there were no schools for girls in the Kurdish areas in which she grew up. The visa holder then moved to Tehran with her husband for him to find work. Due to his illiteracy and Kurdish ethnicity, the visa holder’s husband 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’s husband states that Kurds never received any assistance from the Government before or after the revolution because they are considered separatists. During the 2009 presidential election demonstrations, the visa holder’s husband 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 the [equipment] of her son. The visa holder’s son had been recording the music of upcoming singers and someone in their neighbourhood had reported him to the Basij. He was also threatened by the Basij and told that he must not make any more music otherwise he would be detained. Shortly after, a number of her son’s colleagues were raided by the Basij and had their musical equipment confiscated as part of a wide government crackdown on artists.

   These events, happening one after the other, led the visa holder and her family to fear for their safety and decide 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 visa holder also blames the fact that she is illiterate and a lack of formal education and therefore put her faith in the people smugglers who claimed to know the process of gaining protection in Australia worked. The people smugglers put the visa holder and her family on the wrong path regarding their asylum claims and they deeply regret the untruths. The people smugglers were paid to get them to Australia and they put too much faith in them and the advice they gave.

   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 her 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] Given Name: [Applicant’s given name]	Place of Issue: Ilam Family Name: [Family name 2 variant]
Date of Birth: [date]	Place of Birth: Ilam	Sex: Female

Father’s Given Name: [Name]  ID. Card No. [number] Issued in [location]

Mother’s Given Name: [Name]                 ID. Card No. [number] Issued in [location]

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 2] with the same ID number listed on her birth record.

Departmental Decision to cancel the applicant’s visa under s.109 of the Act

1. The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 25 May 2020.

2. 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.

3. The delegate noted that in their response to the NOICC, the applicant provided conflicting information.

   The visa holder has provided a response to the Notice in the form of a statutory declaration written by her husband on behalf of the visa holder. In this response a number of reasons as to why her Resident Return (subclass 155) visa should not be cancelled have been provided. The visa holder states that she believes that her family’s visas should not be cancelled as their real reasons for claiming protection in Australia are enough to be granted protection. To demonstrate this, she has provided a brief background of her life in Iran with her family that she claims has been made difficult as a result of being an Iranian Kurd. She has detailed specific incidents that led the visa holder and her family to leave Iran, and why she provided incorrect information to the Department regarding her identity, citizenship and claims for protection as is outlined in Part C.

   The visa holder believes she will be subject to discrimination in Iran due to being a Faili Kurd. She has stated that her husband was denied medical care on the basis of being a Faili Kurd and that her house was raided by the Basij who confiscated her son’s music recording equipment and threatened him.

   The visa holder accepts that she and her family provided incorrect information to the Department in their interviews and application forms. She claims to have felt a great burden over the past few years knowing that she lied to the Department and now feels a sense of relief at being able to provide the correct information. The visa holder states lying is a normal part of living in Iran and the visa holder held that mindset as she dealt with the Department.

   The visa holder states that she and her husband both suffer from several medical conditions and has provided medical certificates from their treating doctor, [Dr A]. It states that the visa holder is suffering from the following conditions:

   ·[Specified medical conditions and treatments]

   [Dr A] has provided a medical certificate stating that the visa holder’s husband, [Husband name], is suffering from the following medical conditions:

   ·[Conditions and treatments specified]

   The visa holder has provided incorrect information in application form 866C Application for a Protection (class XA) visa regarding her identity and protection claims. On 15 February 2017, during her 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]” and that he listed his family members as [Child A, with Family name 1] and [Child B, with Family name 1].

   These Facebook profiles also linked through to the Facebook profile of an individual by the name of [Mr A] which was of note because he shares the same family name as the visa holder. A search of departmental systems located a [Mr A] who arrived in Australia some 11 months prior to the visa holder. In his entry interview [Mr A] claimed to have departed Iran on an Iranian passport containing his photo but in the name of [Son B, with Family name 1]. The name [Son B] matched that of the visa holder’s sons that she has declared to the Department in the Form 80 and the name [Family name 1] matched the Facebook profile of her other son [Son A variant].

   When it was put to the visa holder that [Mr A] is in fact her son [Son B], she denied any connection to [Mr A]. It was then put to her that movement records had been obtained for an individual that had entered Australia in April 2014 under the name of [Child A, with Family name 1 variant]. The incoming passenger card for [this person] included the address of [Address 1]. This matched the address of the visa holder and her family at that time. When asked to comment on this information, the visa holder stated that [this visitor] was a friend of [Child A] who lived in [Country 1] and had come to visit. It was put to the visa holder that the Department held the view that [Child A, with Family name 1 variant] is her [specified child].

   After continually denying this connection, the visa holder eventually conceded that [Child A, with Family name 1 variant] is in fact her [specified child] and that her family, including her husband and son in Australia are not stateless but citizens of Iran. The visa holder also went on to state that she has never been to Iraq and that her real name is [applicant’s name, with Family name 2] and the family name of her children and husband is [Family name 1 variant].

   In her response to the Notice, the visa holder has provided details of her life in Iran with her family and what she believes would have been her claims for protection in Australia had she told the Department the truth. The visa holder states her husband 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. The visa holder also states that her house was raided by the Basij and her son’s equipment used to record musicians was confiscated. Her son was also threatened with prison should he continue to record musicians. It was claimed that this was part of a Government crackdown on artists and not because of his Kurdish ethnicity.

   The visa holder has provided identity documents that include a National ID card, a marriage certificate and an extract of birth record. None of these identity documents give any indication that the visa holder is of Kurdish ethnicity. Regarding her husband’s claim of being refused medical treatment on the grounds of being Kurdish, it is not known how staff at the hospital would have known he was of Kurdish ethnicity as the identity documents he would have provided to receive treatment do not indicate his ethnicity. Without further clarification as to how this was identified, there is significant doubt cast over these claims considering that the visa holder has already admitted to providing incorrect information to the Department in order to obtain a favourable migration outcome.

   Based on her 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 her application for a Protection visa. Specifically, the visa holder has provided incorrect information regarding her identity, citizenship 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

4. The Tribunal received a pre-hearing submission from the representative dated 2 December 2020.

5. The Tribunal commended the representative on the detailed submission.

6. 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.

7. The representative confirmed that the applicant accepts and acknowledges that she provided incorrect information and did not comply with s.101(b) of the Act.

8. 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.

9. 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 her husband 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, the treatment of her husband as a patient following a leg injury and the responses she received when making inquiry about his condition. She also detailed an incident wherein their house was raided as her son was a musician and her son’s musical [equipment] was confiscated. Her son was also threatened that he would be detained if he continued to make music. Her son’s colleagues were also raided a short time later.

10. The representative also offered a submission relating to the discrimination felt by Kurdish women.

11. The representative also provided a plethora of country information about the treatment of Kurds in Iran all of which the Tribunal duly considered.

12. He also dealt with each of the prescribed considerations to be considered pursuant to s.109.

    Review Hearing

13. 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.

1. The Tribunal conducted a hearing on 9 December 2020. The applicant attended the hearing with her representative.

2. 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 her 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 her application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of her visa and given an opportunity to comment on those grounds.

3. 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 her application for a protection visa regarding her protection visa claims. The Tribunal noted that based on all of the evidence before her the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.

4. The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided 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.

5. 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 her 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

6. 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.

7. 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)

8. 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.

9. 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]

10. 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:

    [7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

    [8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

11. ‘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.’

12. 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.

13. 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] rather than her real name of [applicant’s name, with Family name 2], and the particulars relied upon the applicant’s claim that she was a stateless Faili Kurd and the examples and incidents of discrimination she had experienced as a consequence of being a stateless Faili Kurd.

14. The applicant accepts that she provided incorrect information in her 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.

15. The applicant states that she is remorseful and apologetic to the Government of Australia.

16. The representative has submitted that the applicant was influenced by people smugglers to lie about her 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.

17. Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that she 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?

18. 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).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

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

    The correct information. 

21. The applicant claimed in her Protection visa application that her identity was [applicant’s name] rather than her real identity of [applicant’s name, with Family name 2], and that she would be killed by the Iranian authorities if she returned to Iran because she was a Faili Kurd and was not allowed to move from Tehran without permission, that she had lived in Iran for 30 years and had not been on a holiday for fear of being detained or mistreated by Iranian authorities and that the Iranian authorities would treat her even worse as a result of departing on a false passport and that she would be mistreated and persecuted due to her ethnic background.

22. The correct information is that the applicant is an Iranian national and departed Iran using her own validly issued Iranian passport.

    The content of the genuine document (if any)

23. 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.

24. The decision to grant the applicant her protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.

25. 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 she had given incorrect answers about her claims in her application for the visa.

26. The representative, in his submission, has provided new claims or grounds on which the applicant believes she may be entitled to protection, including as to the discrimination the applicant experienced as a Kurd in Iran citing examples of that discrimination, including her husband 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, the treatment of her husband as a patient following a leg injury and the responses she received when making inquiry about his condition. She also detailed an incident wherein their house was raided as her son was a musician and her son’s musical [equipment] was confiscated. Her son was also threatened that he would be detained if he continued to make music. Her son’s colleagues were also raided a short time later. He also offered a submission relating to the discrimination felt by Kurdish women.

27. 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.

28. The representative explained the circumstances by which the applicant came to make the claims she did. The Tribunal has referenced the explanation about the applicant’s illiteracy and the role of people smugglers above.

29. The Tribunal has considered that explanation but is satisfied that the applicant acted upon the advice of the people smugglers of her own free will. She formed the view that the advice of the people smugglers to lie, rather than tell the truth about her true position, would enhance her chances of obtaining a protection visa.

30. Furthermore, the applicant stated that lying is just a normality and that she could not understand or imagine living without having to lie and entered Australia with that mindset. 

    The present circumstances of the applicant.

31. The Tribunal noted the representative’s submission that the applicant was now [age] years of age and suffering several medical conditions. 

32. Those medical conditions include [specified conditions]. She is on medication for her [some of these].

33. The applicant also referenced the medical conditions suffered by her husband which include [specified conditions and treatments].

34. 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.

35. The representative also submitted that the applicant and her husband have an established healthcare network in Australia which allows their conditions to be monitored and remain stable. 

36. 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

37. The Tribunal asked the applicant why she would not receive medical or government assistance, given he is Iranian. She replied that if things were Ok in Iran, they would never have left.

38. 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]

    [10] DFAT Report, paragraph 3.22

39. The applicant advised that Iran will say she is a spy.

40. The Tribunal asked the applicant what it was she feared, why did she now fear returning to Iran. She replied that she worried about what she would do. She stated that she is a woman with a sick husband who has [health] issues. She stated she [has a condition] and asked what could she do.

41. The Tribunal asked about her [sons] living in Iran. She replied that they wouldn’t help her as they have families of their own, live with their wives’ families and speak Farsi.

    The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act.

42. The Tribunal noted from the decision of the delegate, that the applicant, during her identity interview in relation to her application for citizenship, maintained that the claims she had made in support of her protection visa were true, and only conceded the truth of her identity, and the fact that a [son] was in Australia and had travelled with her, after a great number of irrefutable facts were put to her.

43. The Tribunal notes the applicant’s apology and remorse and even her comment 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 she attempted to maintain the fiction of her identity until it was literally dragged out of her. 

    Any other instances of non-compliance by the applicant known to the Minister.

44. The applicant advised that there had been no breaches of her visa terms.

45. 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.

46. The Tribunal notes that her visa was cancelled in May 2020 and that six months have since elapsed.  It also notes that incorrect information first occurred when making her protection visa application in December 2010. The applicant advised that the cancellation of her visa was causing her great stress, and that it was also impacting on her own health and the health of her husband.

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

47. The applicant advised that she has not breached any law.

48. 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.

49. The applicant advised the Tribunal that she has not worked since being in Australia due to her ill-health.

50. The representative submitted that the applicant has attended some English classes and made friends and formed a connection with the Australian community.

51. The Tribunal accepts that the applicant has integrated into her community and has formed a number of friendships.

    Whether there would be consequential cancellations under s.140.

52. The Tribunal notes that the applicant, his wife and his son have made independent applications. They are not dependent on each other.

53. 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. 

54. The Tribunal again noted the representative’s submissions relating to the claims the applicant would have had for a protection visa had she made honest and correct claims.

55. The Tribunal acknowledges the examples and incidents of discrimination experienced by the applicant in Iran. It acknowledges her claims in relation to be a woman but notes that she advanced no evidence of actually suffering any harm of the types she advanced country information in relation to when she lived in Iran – being treated as a sex object or victim of domestic violence.

56. However, the Tribunal finds that the examples referred to, whilst may amounting to discrimination, do not, (and to the extent they were in the past) did not, amount to serious harm. The applicant has lived with her husband and raised [number] children. She has advanced no claims in relation to domestic violence or violence of any other nature, but for rude comments made to her when she attended her husband at hospital on one occasion.

57. 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.

58. The Tribunal also considered the applicant’s claim relating to her son being a musician and her home being raided and her son’s equipment being confiscated.

59. 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

1. 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 her husband so as to amount to a real chance of serious harm.

2. Furthermore, the Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.

3. Although the applicant was originally granted a protection visa, at the time of the cancellation she was the holder of a subclass 155 Resident Return visa.

4. 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].

5. 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].

100.   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.

101.   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).

102.   The applicant stated that if she returns to Iran she will not face harm for the reasons he had originally claimed in his protection visa. He also claims that she is worried about what she will do as a woman with a sick husband.

103.   The representative maintains that the applicant will be persecuted by reason of her Kurdish ethnicity and the fact she is a woman.

104.   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 she would not be able to apply for protection due to any legislative bars. Her 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 she 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

105.   Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By her deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a Protection visa, notwithstanding her present apology and remorse.

106.   The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.

107.   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

108.   The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[18]

[18] DFAT Report, paragraph 5.29 – 5.31

109.   The Tribunal notes the applicant’s response to that country information that if anyone wanted to help her, they would have helped at the beginning.

110.   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 she has enjoyed the benefits of the health system, benefits which the Tribunal has not been persuaded she could not obtain in Iran.

111.   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

112.   The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Michael Hawkins
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.