2009229 (Migration)

[2021] AATA 749

2009229 (Migration) [2021] AATA 749 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2009229

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 9:28am

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 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 seeking asylum in Australia. The applicant arrived with his mother and father.

2. On 31 December 2010 the applicant attended an entry interview with the department in which he said his name was [applicant’s name] and was born in Tehran, Iran. The applicant stated he had departed Iran using a fraudulent Iranian passport that contained his photo, was in the name of [an alias] but different date of birth that was “around [a specified year].

3. 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 25 November 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, his 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 his visa, his past history and current circumstances.

7. The applicant was represented in relation to the review by his registered migration agent. His 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.

    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], unemployed and are currently held in immigration detention in [a named location].

    ·Your father’s statement was interpreted to you by an accredited Persian interpreter and you agree with the claims in the statement as to why you were persecuted in Iran and fear returning to Iran because of your ethnicity of being Faili Kurd.

    ·You do not have 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 a Muslim Shia.

    ·You were born on [DOB 1], you are [age] years old and you were born in Iran. Although you have lived in Iran all your life, you do not have Iranian citizenship because you are a Faili Kurd.

    ·You are single and dependent on your parents. You have [number] siblings.

    ·You have finished about [number] years of schooling in Iran but you were forced to discontinue your studies as you were not given any official certificates.  There was no future for you even if you finished high school because you would not have been allowed to enrol in university or to find legal employment.

    ·You started working as a delivery boy in [a named location] when you were about [age] years old until you left Iran to come to Australia.

    The country to which you fear returning

    ·You fear returning to Iran due to being a Faili Kurd as you are stateless and don’t have basic rights.

    Why you left that country

    ·You have lived in Iran all your life but you are stateless there. As you did not have Iranian citizenship, you were not allowed to go to a normal school like other children your age.

    ·You were detained twice by the Basij in Tehran. Once you were returning home from work and were detained in your own street. You were asked to show your identification card but when you said that you didn’t have one they took you to a Basij base in the local Mosque. You were taken into a room and held for 2-3 hours. During this time you were beaten up by four Basiji men, one by one. You begged them to let you go.

    ·The second time you were detained in [Location 1] because of the same reason for not having identification card and being Faili Kurd. You were taken to a different Mosque where you were held for about 2 hours and beaten up again. This time the Basij took all my money and after begging with them again to release me they let me go.

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

    ·You have no country to return to and don’t have citizenship of any country. You are stateless. You believe that if you return to Iran the authorities will treat you even worse than before. You would have to live in even worse circumstances as before as you are not entitled to any Government social security support. You do not have any more savings and you don’t have any employment rights. You fear that you would be mistreated and persecuted due to your ethnic background like before.

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

    ·You have no rights in Iran so no authority can protect you from any persecution you would face from anyone such as the persecution you were subjected to by the Basij.

    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 to 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.

16. The delegate detailed the answers provided by the applicant in Part C of the application form specifically questions 1, 19, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, and 50.

17. The delegate noted that the applicant was granted a Protection (subclass 866) visa on 27 March 2012.

18. The delegate noted [in] June 2016 the applicant’s parents lodged an application for Australian Citizenship. As part of the citizenship process the applicant 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 and non-compliance with s101(b):

    During the interview your mother and father were presented information obtained by the Department relating to your social media Facebook profile. The Department has identified your Facebook profile operates using the name of “[Facebook name]”. On your Facebook profile you have declared two family members, your [Sibling A, with Family name 1] and [Sibling B, with Family name 1]. Your [Sibling C] has also been located through [Sibling A’s] Facebook profile under the name of [Sibling C, with Family name 1].

    When presented with this information both your mother and father confirmed they are Iranian citizens. Your mother confirmed that her name is [mother’s full name] and the family name of her husband and all her children is [Family name 1 variant]. She has also confirmed you and your family are Iranian citizens and not stateless Faili Kurds.

    Based on the information available to the Department and the information provided by your parent’s, I consider that you have provided incorrect information regarding your identity and your protection claims. It is believed that your name is in fact [applicant’s name, with Family name 1 variant], not [applicant’s full name] and you are a citizen of Iran that departed Iran via Tehran International Airport on an Iranian passport issued to you as an Iranian citizen.

    Non-compliance with section 101(b)

    It appears that you have provided incorrect information in the form 866C as part of your application for a Protection visa as follows.

    At question 1 in Part C of the application form you have stated that your name is [applicant’s name]. This information is incorrect as information before the Department is that your name is in fact [applicant’s name with Family name 1 variant].

    At question 19 on page 2 of Part C of the application form in response to the question regarding your citizenship at birth you have answered Stateless. This information is incorrect as the Department is aware that your father is a citizen of Iran and you would have obtained Iranian citizenship at the time of your birth. Therefore you are not stateless.

    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 the Department is aware that you are a citizen of Iran.

    At question 22 you have answered No in response to whether you have a right to enter or reside in, 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 the Department is aware that you are a citizen of Iran.

    At question 23 you have stated I am recognised as a Faili Kurd in response to how, when and why you lost your citizenship if you are stateless. This information is incorrect as the Department is aware that you are a citizen of Iran and are not stateless.

    At question 28 you have answered Nil in response to details of your current travel document. This information is incorrect as the Department is aware that you departed Iran via Tehran International Airport using an Iranian passport issued to you as an Iranian citizen.

    At question 30 you have answered yes in response to whether you have ever had or used any other passport or travel document. You have stated that the type of document was a false passport, the document number is unknown, country of document unknown and name on passport is unknown. This information is incorrect as the Department is aware that you are a citizen of Iran and departed Iran via Tehran International Airport using an Iranian passport issued in your name [applicant’s name with Family name 1 variant].

    At question 41 you have stated Iran and Iraq as the countries that you are seeking protection from in Australia so you do not have to go back to. In your Statement of Claims you have also stated that you fear returning to Iran due to being a Faili Kurd as you are stateless and don’t have basic rights. This information is incorrect as the Department is aware that you are a citizen of Iran who would have been afforded the basic rights of an Iranian citizen.

    At question 42 you have stated that you have lived in Iran all your life but you are considered stateless. As you did not have Iranian citizenship you were not allowed to go to a normal school like other children your age.  You were detained twice by the Basiji in Tehran. Once when you were returning home from work and you were detained on your own street. You were asked to show identification but when you said that you didn’t have any you were taken to the Basiji base in the local Mosque where you were held for two to three hours and beaten by four Basiji men. The second time you were detained in [Location 1] for again not having any identification and for being a Faili Kurd. You were taken to a different Mosque where you were held for two hours and beaten up. This time the Basiji took all your money and you were released. This information is incorrect as the Department is aware that you are a citizen of Iran who departed Iran using an Iranian passport issued to you as an Iranian citizen in your name [applicant’s name with Family name 1 variant]. Therefore, you are not stateless and have been afforded the basic rights of an Iranian citizen by obtaining an Iranian passport which would have required a number of other identity documents in order to obtain.

    At question 43 you have stated that you have no country to return to and you don’t have citizenship of any country. You are stateless. You believe that if you return to Iran the authorities will treat you worse than before. You would have to live in worse circumstances as before as you are not entitled to any government or social security support, your family does not have any more savings and you don’t have any employment rights. You fear that you would be mistreated and persecuted due to your ethnic background as you were before. This information is incorrect as the Department is aware that you are a citizen of Iran. It is also evident that, while in Iran, you have been afforded the basic rights of an Iranian citizen such as obtaining an Iranian passport and being allowed to depart via Tehran International Airport. Therefore you would have had the right to work in Iran as an Iranian citizen and are not stateless.

    At question 44, 45 and 46 you have stated that you have no rights in Iran so no authority is able to protect you from persecution that you would face such as the persecution that you were subjected to by the Basij. This information is incorrect as the Department is aware that you are an Iranian citizen who has been able to obtain an Iranian passport in your name [applicant’s name with Family name 1 variant] that you able to use to depart Iran via Tehran International Airport. This would require a number of identity documents issued to you in your name as a citizen of Iran. Therefore your claims of persecution by the Basij for not having any identity documents due to being a stateless Faili Kurd is incorrect.

    At question 49 you have stated that you left Iran illegally. This information is incorrect as the Department is aware that you are a citizen of Iran and departed Iran via Tehran International Airport using an Iranian passport issued in your name [applicant’s name with Family name 1 variant]. Therefore you departed Iran legally as an Iranian citizen using an Iranian passport.

    At question 50 in response to whether you had any difficulties obtaining a travel document (such as a passport) in your home country you have answered yes, I am stateless, I cannot apply for a passport. This information is incorrect as the Department is aware that you are not stateless and are a citizen of Iran and you departed Iran via Tehran International Airport using an Iranian passport issued in your name [applicant’s name with Family name 1 variant].

19. The delegate notes in the NOICC they considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 1, 19, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, and 50 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.

20. 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

21. 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, through a statement provided by his Migration Agent and a statutory declaration completed by his father [name, Family name 1 variant], 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 to travel to Australia. He states that the people smugglers told him and his parents 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 he and his parents fear being returned to Iran. His father was denied medical care as a result of his Kurdish ethnicity and his house raided and [equipment] confiscated by the Basij.

    The visa holder’s father 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 the visa holder’s mother and then moved to Tehran to find work. Due to his illiteracy and Kurdish ethnicity, the visa holder’s father 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 father 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 father 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 visa [equipment]. The visa holder had been recording the music of upcoming singers and someone in their neighbourhood had reported him to the Basij. The visa holder 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 the visa holder’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 his parents 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 people smugglers put the visa holder and his 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 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: Tehran

    Given Name: [Applicant’s name]          Family Name: [Family name 1 variant]

    Date of Birth: [DOB 2]    Place of Birth: Tehran         Sex: Male

    Father’s Given Name: [Name]  ID. Card No. [Number] Issued in Region [number] of (illegible)

    Mother’s Given Name: [Name] ID. Card No. [Number] Issued in Region [number] of Ilam

    The visa holder has also provided a military exemption certificate issued in the name of [applicant’s name with Family name 1 variant] and a National ID card also issued in the same name and ID card number listed in his birth record.

    The visa holder’s father has completed the statutory declaration while admitted to [an Australian] Hospital. He has stated that he and his wife suffer from several medical conditions and has provided medical certificates from their treating doctor, [Dr A]. It states that the visa holder’s father is suffering from the following conditions:

    ·[specified conditions and treatments].

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

    [specified conditions and treatments]

    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 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. The Department has found that the visa holder’s Facebook profile operated under the name “[Facebook name]” and that he listed his family members as [Sibling A’s name with Family name 1] and his [Sibling B’s name with Family name 1].

   When his parents were presented with this information during their identity interviews they have admitted that they, and the visa holder, departed Iran on their own Iranian passports issued to them as Iranian citizens in their real names. The visa holder’s father has admitted that his family name is [Family name 1 variant]. Therefore the Department considers that the visa holder’s real name is [applicant’s name with Family name 1 variant].

   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 parents 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. 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 that his father 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 also claims that his house was raided by the Basij and his equipment he used to record musicians was confiscated.

   The visa holder has provided identity documents that include a National ID card, a military exemption 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 them 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 a significant pall of 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 this 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

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 he 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 being laughed at when he and his siblings were at school by reason of their Kurdish accents, more recently, the treatment of his father in a hospital as a patient following a leg injury. He also detailed an incident wherein their house was raided as he was a [musician] and his musical [equipment] was confiscated. He was also threatened that he would be detained if he continued to make music. His colleagues were also raided a short time later.

10. The applicant also claimed to object to the discrimination levied by the Iranian regime against minorities.

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.

    Post-hearing Submission

13. The Tribunal received a post-hearing submissions from the representative dated 16 December 2020 and 21 December 2020.

14. The submission of 16 December 2020 contained reference letters from 7 supporters, together with additional submissions relating to the prescribed considerations to be considered pursuant to s.109.

15. The submission of 21 December 2020 was in response to a request for information from the Tribunal. The submission contained invoices relating to [music] activities of the applicant, tax documents for the applicant and some photographs of the applicant’s [workspace].

    Review Hearing

16. 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.

17. The Tribunal conducted a hearing on 9 December 2020. The applicant attended the hearing with his representative.

18. 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.

19. 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 them the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.

20. 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.

21. 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

22. 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.

23. 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)

24. 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.

25. 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]

26. 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

27. ‘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.’

28. 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.

29. 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’s name with Family name 1 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.

30. 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.

31. The applicant states that he is remorseful and apologetic to the Government of Australia.

32. 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.

33. 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?

34. 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).

35. 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.

36. 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. 

37. The applicant claimed in his Protection visa application that his identity was [applicant’s name variant] rather than his real identity of [applicant’s name with Family name 1 variant], and that he has no country to return to and doesn’t have citizenship of any country. He claimed he is stateless and believed that if he returns to Iran the authorities would treat him even worse than before. He claimed he would have to live in even worse circumstances than before as he was not entitled to any Government social security support. He claimed he did not have any more savings and didn’t have any employment rights. He feared that he would be mistreated and persecuted due to his ethnic background like before. He also claimed to have no rights in Iran so no authority could protect him from any persecution he would face from anyone such as the persecution he claimed he was subjected to by the Basij.

38. The correct information is that the applicant is an Iranian national and would have access to the benefits and rights accruing to Iranian citizenship.  

39. The correct information is that the applicant was not beaten by members of the Basij on two occasions by reason of not having identity documents as the applicant had an identity card. The Tribunal notes he also had a military exemption certificate.

40. The correct information is that the applicant was not denied a full education but rather on his own evidence studied one year of [a tertiary course].

41. The correct information is that the applicant departed Iran using his own validly issued Iranian passport.

    The content of the genuine document (if any)

42. 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.

43. 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.

44. As has been explained in the delegate’s decision, 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.

45. 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 being laughed at when he and his siblings were at school by reason of their Kurdish accents, more recently, the treatment of his father in a hospital as a patient following a leg injury. He also detailed an incident wherein their house was raided as he was a [musician] and his musical [equipment] was confiscated. He was also threatened that he would be detained if he continued to make music. His colleagues were also raided a short time later. The applicant also claimed to object to the discrimination levied by the Iranian regime against minorities.

46. 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.

47. 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 parents’ illiteracy and the role of people smugglers above.

48. The Tribunal has considered that explanation, but is satisfied that the applicant acted upon the advice of the people smugglers of his own free will. He had his father’s statements interpreted and read to him and he accepted them. He was an adult at the time of making his application for a protection visa. 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.

1. The Tribunal noted the representative’s submission that the applicant lives with his parents and that both of his parents suffer from medical conditions.

2. His father is now [age] years of age and suffering several medical conditions. 

3. The medical conditions include [specified conditions and treatments].

4. His mother is also suffering several medical conditions.

5. Her medical conditions include [specified conditions].

6. The representative also submitted that the applicant’s parents have an established healthcare network in Australia which allows their conditions to be monitored and remain stable. 

7. The representative submitted that these medical conditions, which the applicant assists with, together with the fact he has resided in Australia for ten years should act in favour of a finding against cancellation.

8. The Tribunal notes 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 notes that the government spent 7.6% of GDP on health in 2018.[9] The Tribunal also notes 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

9. The Tribunal noted the representative’s submission that the applicant fears persecution due to his ethnicity as a Kurd in Iran. The representative submits that the applicant’s risk of harm is compounded by his own previous experience of being targeted by the authorities for his music.

10. The representative also submitted that the applicant’s and his parents’ previous experiences of discrimination, particularly in relation to his father’s experience at the hospital after injuring his leg, was evidence of the risk of harm he faces due to his ethnicity. 

11. The Tribunal also noted country information from the DFAT Report 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

12. The Tribunal has also considered country information provided by the representative. It accepts the country information contained in the DFAT Report, noting it is current as at April 2020.

13. 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.

14. The Tribunal notes the applicant’s statement that he assists with his parent’s medical care in Australia. The Tribunal notes that it has also heard the cancellation cases of his two parents and has determined that the cancellations of each of their Resident Return visas also be affirmed. In the circumstances, the applicant will be able to continue to assist with his parent’s medical care in Iran if he chooses to do so.

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

15. The Tribunal noted from the decision of the delegate, that the applicant, at the commencement of his identity interview, was advised that his parents had divulged their true identities, including that of the applicant.

16. The Tribunal notes the applicant’s apology and remorse and even the comment of his mother 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 remained silent about his true identity and it was only by reason that his parents had irrefutable facts put to them that they confessed to their deception.

17. The Tribunal also notes the applicant’s statement during the hearing that he is now a different person and has matured a lot.

18. The Tribunal notes again that the applicant was an adult, and an educated adult, at the time he made his entry interview and application for protection. 

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

19. The applicant advised that there had been no breaches of his visa terms.

20. 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.

21. 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.

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

22. The applicant advised that he has not breached any law.

23. 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.

24. The applicant has provided copies of tax returns from the 2016 financial year. It is clear he has been employed and paid taxes.

25. The representative submitted in the post hearing submission that despite suggestions that the applicant earned income from working in retail and [music], he did not in fact begin earning money from his music [work] until July 2020. The Tribunal notes that the applicant has earned income from a number of sources relating to the [music work].

26. The representative submitted that the applicant has volunteered for a school and music festival.

27. The Tribunal has considered the references put forward by the representative, noting that the applicant has volunteered his talents at no cost for a [specified project].

28. The Tribunal notes that the applicant has many supporters praising his talents.

29. The Tribunal accepts that the applicant has made a contribution to the community by virtue of some volunteer work, and by volunteering his talents.

30. The representative submitted that the applicant has attended some English classes and made friends and formed a connection with the Australian community. He has friends from his work, school and [his college].

100.   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.

101.   The Tribunal notes that the applicant, his father and his mother have made independent applications. They are not dependent on each other.

102.   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. 

103.   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.

104.   The Tribunal acknowledges the examples and incidents of discrimination experienced by the applicant and his parents in Iran.

105.   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.

106.   The Tribunal also considered the applicant’s claim relating to him being a [musician] and his home being raided and his equipment being confiscated.

107.   The applicant explained to the Tribunal that he fears he might be arrested because of [his style of music]. He stated that hip hop music is not particularly popular with the government.

108.   The applicant reiterated his account of the government coming to his house and taking his [equipment]. He also discussed how he started in music when he was 15 years of age. He discussed how he had done a [music project] for a friend of his whose father worked for the government. He claims that is why he was raided.

109.   The Tribunal asked the applicant whether he had any corroborative evidence of that. He replied that he did not. The Tribunal suggested that the cause might be supposition on his part. He replied that the raid was close in time to when he had [worked] for his friend.

110.   The Tribunal asked the applicant when he was raided. He replied some time in 2009.

111.   The Tribunal asked how long it was after the raid that he left Iran. He replied about a year. Asked whether he was arrested during that time, he replied he was not. The Tribunal suggested that perhaps he was not likely to be arrested. He replied that he had received a warning.

112.   The Tribunal asked had he ever engaged in political activism. He replied that he had not.

113.   The applicant stated that it was not easy being a Kurdish artist. He said he didn’t know of any Kurdish musicians living in Iran.

114.   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 female musicians 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

115.   The applicant responded to it by stating that [his music] is likely to cross the red line. Asked why, he replied that he doesn’t know exactly where the redline is.

116.   The Tribunal ventured that it would be the same for all artists and musicians. He replied that it would be more difficult for Kurds.

117.   The applicant stated that he had done some work for an international organisation called [name]. He stated that [they] had no office in Iran, but that the main [manager] was arrested in Iran after the production of an album in 2006 or so. He stated that a [worker] got arrested but was now living in [another country].

118.   The Tribunal noted the representative’s submission in relation to [this organisation] and the aforementioned arrest being in 2009.

119.   The applicant also stated that he felt that there was no other work that he could do in Iran if he had to return. The Tribunal struggled with that response, given that the applicant has managed to work for reward since at least 2016 in jobs other than the music industry, and only started to earn income from his music work since July 2020.

120.   The Tribunal noted that the applicant stated that he had concerns about what the redline was. He states that his style of music is hip-hop, and he has concerns that hip-hop may cross the redline. However, the Tribunal has no country information or other evidence before it to corroborate that claim. The representative referred to the DFAT Report and cited: “‘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”. There is no implication that hip-hop music constitutes a crossing of the said redline.

121.   The Tribunal is also mindful that the rules and restrictions in relation to music and censorship are laws of general application, applicable to all in Iran.

122.   Further, the Tribunal was concerned as to why this particular claim had not been raised at the time the applicant made his protection visa application. The Tribunal asked the applicant why it wasn’t so raised, given that it was a set of circumstances that would have equally applied in relation to his earlier claim of being a Faili Kurd. The Tribunal has concerns about the genuineness of this claim. The applicant responded that his parents made the applications and he was told it would be ridiculous to include such a claim.

123.   The Tribunal remains concerned by that response and why such a claim could not have been made at the time of making the protection claims. Consequently, the Tribunal has the strongest reservations about the genuineness of the applicants claim to fear harm on the basis of being a [musician].

124.   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.

125.   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].

126.   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].

127.   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.

128.   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).

129.   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 claims a new set of grounds.

130.   The representative maintains that the applicant will be persecuted by reason of his Kurdish ethnicity.

131.   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.

132.   Notwithstanding the doubts the Tribunal has about the strength of the applicant’s new claims as discussed above, the applicant may have the opportunity to test his claims in a new protection visa application.

Conclusion

133.   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.

134.   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.

135.   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

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

[18] DFAT Report, paragraph 5.29 – 5.31

137.   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 that his parents, for whom he assists with support, have various health conditions. The Tribunal also notes that he has enjoyed the benefits of the health, education and employment systems, benefits which the Tribunal has not been persuaded he could not obtain in Iran.

138.   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

139.   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 he 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.