2014131 (Refugee) - [2022] AATA 2622

2014131 (Refugee) [2022] AATA 2622 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2014131
COUNTRY OF REFERENCE:                   Iran
MEMBER:Meena Sripathy
DATE:15 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 15 June 2022 at 9:34am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – Federal Court remittal – incorrect information provided in protection visa application – citizenship and fear of harm – not stateless but Iranian citizen – passports and voluntary returns after protection visa granted – late concession of non-compliance – mental health – cancellation of husband’s protection visa set aside on review – members of family unit – consequential cancellation of older child’s protection visa – younger child an Australian citizen – best interests of children as primary consideration – language, education and activities – non-refoulement obligations at time of potential removal – protection finding not quashed or set aside – possibility of prolonged detention – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)(c), 140, 197C, 425(2)(a)
Migration Regulations 1994 (Cth), r 2.41
CASES
DXQ16 v MICMSMA; DXN16 v MICMSMA [2020] FCA 1184
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis of finding that the applicant provided incorrect answers in her Protection visa application relating to her citizenship status and in doing so failed to comply with s101 of the Act and that the grounds for cancelling the visa outweigh any reasons for not cancelling.
The applicant is a [Age] year old married woman from Iran. According to Department records she arrived in Australia on [in] October 2010 by boat at Christmas Island. She was granted a Subclass 866 Protection visa on 13 April 2011 on the basis of her claims to be a stateless former resident of Iran with no identity document who feared persecution from the government and security agencies due to her stateless and undocumented status. The applicant’s visa was cancelled on 21 June 2016, the subject of this review.
The applicant arrived in Australia with her husband, [Mr A] and then [Age] year old son, [Master B], who also applied for protection visas. Her son was granted a protection visa as a member of her family unit and his visa was consequentially cancelled under s140 of the Act. Her husband was separately granted his protection visa and his visa was also cancelled on 21 June 2016. His application for review is also before the Tribunal.[1] The applicant’s second son, [Master C], was born in Australia after his parents were granted protection visas, in September 2011. He is an Australian citizen.
[1] AAT ref. 2014139
On 11 November 2016 the Administrative Appeals Tribunal (differently constituted) (first AAT) affirmed the decision to cancel the applicant and her husband’s Subclass 866 (Protection) visas.[2] The Federal Circuit Court dismissed an application for judicial review of these decisions. [In] August 2020 the Federal Court of Australia allowed an appeal from the Federal Circuit Court, set aside the decisions of the first AAT and remitted them for reconsideration according to law.[3] In allowing the appeals Steward J found the first Tribunal erred by failing to consider the best interests of the applicant’s children as a primary consideration to be considered along with the circumstances of the applicant’s non-compliance with the Act.
[2] AAT ref 1610447 & 1610448
[3] DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, heard together with DXN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 per Steward J
The matters are now before the Tribunal (differently constituted) for reconsideration. The issue is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled, taking into consideration the best interests of the applicant’s children as a primary consideration.
The Tribunal has before it, and has taken into consideration, the evidence and submissions provided to the first Tribunal, including the oral evidence given at a hearing on 5 October 2016. The present Tribunal has a transcript of that hearing before it and the summary of evidence that was included in the first Tribunal’s decision record.[4]
[4] AAT case reference 1610448
On 20 May 2022, the Tribunal received submissions and supporting documents and information from the applicant’s current representative, including written statements from the applicant, her husband and children and a report from a psychologist who assessed the entire family. The submissions are focussed on the issue of whether the best interests of the children of the applicant as a primary consideration, outweigh the applicant’s non compliance with Act and the strength or cumulative effect of other considerations that favour cancellation of the applicant’s visa. The submissions also address the prescribed circumstances under s109(1)(c) set out in r.2.41 of the Regulations.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 425(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with in the following respects: she provided incorrect answers at questions 17, 18 and 19 of Part D of Form 866 in her Protection visa application, by indicating N/A to the question of her citizenship at birth, providing no response to the question of her current citizenship and no to the question of whether she holds any other citizenship or nationality. At question 17 on her statement of claims signed on 07 January 2011 which states ‘If you are stateless, how when and why did you lose your citizenship?’ she stated ‘My parents were expelled from Iraq and stripped of their citizenship’. In her Refugee Status Assessment (RSA) Form, in Form 80 – Personal Particulars for character assessment she advised that her father is stateless.
The NOICC refers to the following evidence before the Department supporting the contention that the applicant is an Iranian citizen:
a.[In] August 2014 the applicant and sons departed Australia, returning [in] October 2014. On arrival, they were in possession of Iranian passports issued [in] 2014 (hers) and [in] 2014 (her sons) by the Iranian Immigration and Passport Police. The applicant’s sons’ passports listed their father’s name. Information contained in travel booking documents and passenger exit cards show that the applicant and her sons travelled to Iran for a holiday and were granted entry visas to Iran valid from [July] 2014 until [October] 2014.
b.The applicant and her sons’ possession of Iranian passports indicates that they are all Iranian nationals and are recognised as citizens of Iran. Country information indicates that to apply for and be granted an Iranian passport, Iranian nationals must hold precursor documents such as an Iranian birth certificate and National Identity card. The applicant’s possession of an Iranian passport suggests that she is an Iranian national as citizenship laws in Iran stipulate that children can only acquire citizenship from their Iranian father (paternal line) and this indicates that the applicant’s father was an Iranian citizen not stateless as claimed.
c.Department movement records show that the applicant departed Australia [in] February 2013 and returned [in] April 2013. Information provided on the incoming passenger card was that most of the time abroad was spent in Iran. This indicates that despite seeking protection from having to return to Iran, the applicant travelled to and stayed in Iran on two occasions for approximately 16 weeks in total since being granted the class XA subclass 866 Protection visa.
The NOICC contended that the applicant provided incorrect information on the basis of this information as it is apparent that she was not stateless and was not stateless at time of her Protection visa application. Possession of an Iranian passport is evidence of Iranian citizenship and under Iranian law her sons could not hold Iranian citizenship unless their father was an Iranian citizen. Her Protection visa was granted on the basis that she satisfied the Minister that she engaged Australia’s protection obligations under the Refugees Convention. She has consistently maintained that she is stateless. This claim was fundamental to the determination that she was a person to whom Australia has protection obligations.
The delegate’s decision record referred to the following additional information: the applicant’s ‘Approval for exit from Iran for spouse and children’ form displayed her husband’s National Identity [number]. On 23 July 2015 the Department received advice that her husband was the holder of Iranian passport number issued by the Iranian Embassy in Canberra [in] 2014, which was found to be genuine on examination by the Document Examination Unit (DEU). That passport contained an observation that his last lawful departure from Iran was [in] October 2010.
The applicant maintained, in the response submitted on her behalf to the NOICC and response to the procedural fairness letter issued in the context of the ITOA process that they were stateless and undocumented upon arrival to Australia in October 2010. The applicant’s husband continued to maintain this up until the very end of his evidence to the first AAT, when he conceded that he provided incorrect information in his Protection visa application and admitted that he had an Iranian Shenasnameh upon arrival in Australia in October 2010 and was not stateless but rather an Iranian national. At her hearing, which took place directly after this, the applicant also admitted that she provided incorrect answers in the application specifically relating to the claim of being stateless at the time of arrival to Australia. She gave evidence that she did not have an Iranian identity card at birth but obtained a Shenasnameh when she married her husband in 2005, as he was an Iranian citizen.
On the basis of the applicant’s admission at hearing and the overwhelming evidence before it, the first Tribunal concluded that the applicant provided incorrect information in the application for a protection visa and did not comply with s101(a) and (b).
The first Tribunal went on to consider the discretionary factors and concluded that the visa should be cancelled and affirmed the decision under review.
As indicated previously, this matter is now before the present Tribunal following remittal of the matter by the Federal Court on the basis that the (first) Tribunal failed to give the best interests of the applicant’s children primary consideration when considering the circumstances of the applicant’s non compliance with the Act.
Evidence before the current Tribunal
On 20 May 2022 the applicant’s current representatives provided submissions and the following supporting documents:
a.Statement of the applicant dated 16 May 2022
b.Statement of the applicant’s husband dated 16 May 2022
c.Statements of the applicant’s two sons, dated 16 May 2022
d.Report from [Dr D], Psychologist dated 3 May 2022, regarding the applicant’s two sons
e.Report from [Mr E], Psychologist, dated 14 May 2022, regarding the applicant’s husband
f.Letter from [Mr F], Manager of [Organisation] dated 31 January 2022
g.School Reports relating to the applicant’s two children 2020-2021
h.Literature relevant to the issue of the best interests of the children.
The applicant and her husband’s statements and submissions confirm their acknowledgement and concessions that they are not stateless, and were not stateless when they arrived in Australia, and that they provided incorrect information in the Protection visa application. The applicant expressed her regret for her failure to tell the truth at an earlier stage.
On the basis of the evidence referred to above supporting the applicant’s Iranian citizenship, her admission to the first Tribunal and the confirmation of her Iranian citizenship status in her recent statement dated 16 May 2022, the Tribunal finds the applicant is an Iranian citizen and was an Iranian citizen at the time she applied for protection. It follows that the Tribunal is satisfied she provided incorrect information about her citizenship status at the time of the application. The Tribunal notes that she maintains that she was not an Iranian citizen at time of her birth and that her father was stateless. For present purposes, a single incorrect response is sufficient to make out the ground of non compliance with s 101 and she has admitted to providing no response to Q 18 and an incorrect response to Q 19 of Part D of the application.
For these reasons, the Tribunal finds that there was non-compliance s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. The Tribunal has considered these matters and the relevant evidence before it, as follows:
The correct information
The correct information is that the applicant is not stateless and is, and was at the time of the application, a national of Iran. The Tribunal observes that the applicant was found to be a refugee on the basis of her membership of the family unit of her husband, who claimed to fear persecution from the government and security agencies due to his stateless and undocumented status. The stateless claim was central to their protection claims and the basis on which they were found to be owed Australia’s protection. The Tribunal gives this factor considerable weight in favour of cancelling the visa.
The content of the genuine document (if any)
This prescribed circumstance is not relevant in this case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).
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 Refugee Status Assessment decision record, on which the grant of the protection visa was based, indicates the applicant’s favourable refugee assessment was based on her and her husband’s claim to be stateless Arabs without citizenship and the disadvantage and discrimination faced on that basis. Their claims of being denied access to basic essential services such as medical, hospital, banking, education, housing, transport and restrictions on employment and inability to register their marriage were accepted. The delegate accepted that they had a well founded fear of persecution for reasons of nationality and race. It is clear from the RSA assessment decision record that the decision to grant the visas was substantially, if not wholly, based on the claims of being stateless Arabs in Iran. The submissions of the applicant’s current representative concede that the decision to grant a visa was based wholly or partly on the incorrect information regarding her citizenship status. The Tribunal gives this factor significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant in her evidence to the first Tribunal explained that she wanted to tell the truth earlier, but as a woman in Arab culture she had to follow her husband’s lead. Her husband, in his evidence to the Tribunal said that he said he was stateless in his application on the advice of the smuggler who told him that if he did not say this his application would not succeed and he would be returned.
In the recent submissions and statement the applicant acknowledges that she did not tell the truth at the time of making her application and that they also did not tell the truth straight away when the Department sent them the notice to cancel. She explained their future was in doubt and it was very stressful. They were worried about their sons, weren’t thinking clearly and desperate to stay. Her husband became depressed and could not work and she was so worried. She has now had a lot of time to reflect and realises they should have told the truth when they received the notice and very much regrets her decision and is sorry.
Included in the materials submitted to the Tribunal is a report from her husband’s treating psychologist, [Mr E], who he has been seeing since July 2017. The Tribunal accepts on the evidence before it that the applicant and her husband are remorseful for their non compliance and late admission and have suffered mentally as a result of the consequences of their actions and prolonged process that has followed. It is prepared to accept that they were motivated by fear of being returned and misguidedly relied on advice of people smugglers to claim statelessness in order to be successful in their protection applications. However, despite the explanations and statements of regret now provided, the Tribunal finds that the applicant deliberately provided incorrect information to the department about her nationality and citizenship status for the precise purpose of achieving a favourable visa outcome and the incorrect information was central to her protection claims. The Tribunal considers this is a factor which weighs significantly in favour of cancelling her visa.
The present circumstances of the visa holder

The applicant states in her recent statement that they are good people despite their mistakes. She contributes to the Arabic community at [Organisation], where she volunteers three days a week since 2013 and helps cook for 100-150 people six or seven times a year.
On the evidence before it the Tribunal accepts the applicant has been residing in Australia for over 11 years now, with her husband and two children, now aged [Age] and [Age]. During this period they established their lives, purchased a home (subject to a mortgage) and the children settled into school. The applicant has not worked outside the home, other than her stated volunteer activities, but her husband previously held employment at a [company]. His employment and circumstances changed significantly when the cancellation process commenced and he lost his permanent visa status and became mentally unwell.
The applicant indicated in her recent statement that she has an uncle and cousin in Sydney, who has four children and they are close to these family members. She said her sons do not speak, read or write Farsi and she worries how they will manage if they had to return to Iran to live. She believes their development will suffer and that they would be much worse off than if they stayed in Australia. They would be bullied at school because they are Arabic. She prays for her son’s sake that they can stay in Australia.
A report was also provided from [Dr D] in relation to the children and family’s circumstances. [Dr D] interviewed the applicant, her husband and the two children. The Tribunal has considered the contents of the report, further details of which are included in the discussion of the best interests of the children below.
The Tribunal accepts, on the evidence before it, that the applicant and her family have established a life here and her children are settled and doing well in their lives. It accepts that she has maintained a longstanding involvement in the local Arabic community and has volunteered her time over many years at a community centre. It gives these matters in her present circumstances significant weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The response to the NOICC provided in December 2015 on behalf of the applicant maintained that they did not provide incorrect information about their citizenship status. It was not until the very end of the applicant’s husband’s hearing in October 2016, that he conceded he did in fact give incorrect information and was an Iranian citizen upon arrival in Australia and was never stateless and after that the applicant conceded this also at her hearing. In their recent statements they express regret and remorse for their actions and delay and wish they had been honest from the beginning.
The Tribunal acknowledges that the applicant has now admitted to the non compliance. While ordinarily a concession of the non compliance may be a factor that weighs in favour of not cancelling a visa, in this case the concession was not made until very late in the process. The Tribunal has considered the applicant’s submission to the first Tribunal that, as a woman she had less power within the relationship to make her own decision to come forward with the truth earlier, though she wanted to. Giving some consideration to this explanation, the Tribunal gives the applicant’s late concession some weight in favour of not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non compliance by the applicant.
The time that has elapsed since the non-compliance
The non compliance occurred in April 2011, over 11 years ago now. Since then, the applicant and her family, including an Australian born son, have been residing in Australia and have established their lives. The Tribunal considers this is a substantial period, particularly in the context of the lives of the children, the older one having arrived at [age] and now being [Age] years old and the younger one, born in Australia, now [Age] years old. The Tribunal considers this factor weighs strongly in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any breaches of the law by the applicant. This weighs in favour of not cancelling the visa.
Any contribution made by the holder to the community.
The applicant claims she has been involved with [Organisation] since 2013. She helps to clean and prepare the hall for prayer and cooks for 150 people six or seven times a year. A letter from the Director and Manager, [Mr F], supports the family’s involvement there. The Tribunal accepts the applicant is involved at this centre as claimed and is making some contribution to the community in this manner. It gives this factor some weight in favour of the visa not being cancelled.
Other factors
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.
Whether there would be consequential cancellations under s 140
The applicant’s son [Master B] was included in her application as a dependent and therefore is subject to consequential cancellation under s140 on the basis of the cancellation of her visa. Their younger son was born in Australia and is an Australian citizen.
Best interests of the applicant’s children and family unity principles
As a signatory to the Convention on the Rights of the Child (CRC) Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CRC also includes integrated but wider considerations including education, health and disability considerations[5] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[6]
[5] Article 28, Articles 23 and 24
[6] Article 22
The present matter was remitted by the Federal Court on the specific point that the best interests of the children must be considered as a primary consideration along with the applicant’s circumstances of non compliance with the Act, it not being apparent that the first Tribunal had given this matter the primacy of consideration it requires. Accordingly the Tribunal takes into consideration the following evidence before it relating to the children and their best interests.
Statements from the children dated 16 May 2022 and a detailed report from psychologist, [Dr D], before the Tribunal address the current circumstances of the children. The applicant’s representative has also made submissions on this matter.
The applicant has two children, [Master B] and [Master C] aged [Age] and [Age] respectively. [Master B] has lived in Australia since the age of [Age] and [Master C] was born here and is an Australian citizen. The evidence indicates the children both attend school and are in years [deleted] respectively. They speak English as a first language. They speak Arabic at home with their parents, and neither can speak, read or write Farsi. They have close friends and family in Sydney and enjoy activities including video games and sports. They each identify as Australian and have expressed love for their lives and aspirations for their future.
The representative submits that the children are at critical stages of their human development and if required to move to Iran their sense of identity and self esteem would be placed at significant risk and could have serious long term consequences for their mental and physical health, referencing [Dr D]’s opinions set out in her report.
[Dr D] reports there was no information presented to indicate any physical or psychological issues presently affecting the children, although it was clear they were aware of their parents’ distress. They reported positive family and peer relationships, religious faith, positive school experiences and coping skills all of which act as protective factors, and she found that the children appeared to be resilient. Nevertheless, she suggested there is strong likelihood the children may feel torn between the two societies if the family were to have to return to Iran and may struggle with feelings of belonging and experience intrapersonal conflict. Their lack of Farsi language in Iran would cause a significant setback for them, impacting their educational and social well being. Given the accounts indicating they were achieving at a satisfactory level at school here, she was of the view it is unclear whether the same level of educational opportunities would be available to them in Iran, in light of the information available in the DFAT report which indicates they may be disadvantaged by their parents’ Arab backgrounds. On this basis [Dr D] opined that their educational trajectory could take a significant step backwards. In conclusion, [Dr D] stated ‘while it is impossible to crystal ball the impact this will have on the children as for each person the relocation to another culture is an individual journey, undoubtedly the children are likely to have social and psychological consequences should the family be required to return to Iran’.
The evidence before it also indicates the children are holders of current Iranian passports, and have Iranian citizenship as a consequence of their father’s Iranian citizenship. As Iranian citizens, they will have access to services including education and health as other Iranian citizens,[7] although the Tribunal acknowledges that with Farsi being the sole medium of instruction in primary and secondary education, they may face some difficulties and adjustment due to their lack of Farsi language. Regarding the claim that they may face disadvantage and discrimination on the basis of their Arab background, the Tribunal is not convinced this is supported by country information, with information in the most recent DFAT report indicating that Arabs are not specifically targeted for discrimination on the basis of their ethnicity, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities.[8]
[7] DFAT Country Information Report Iran April 2020, para 2.36
[8] DFAT Country Information Report April 2020, paragraphs 3.8 -3.9, 3.13, pp 24-25
Having considered the material and evidence before it, the Tribunal finds that the best interests of the children in this case is for them to remain living in Australia with their parents and not have to return to Iran to live involuntarily. The Tribunal accepts that they have spent their entire lives (or virtually, in the case of the elder one, who was [age] year old upon arrival) in Australia. The younger child is an Australian citizen and entitled to live here and access the full benefits and opportunities of this country. While he is also an Iranian citizen, given his young age he would likely return with the family if their visas remained cancelled, and thereby be denied the benefits of his Australian citizenship. Both children are fully integrated into the Australian community and would face significant challenges settling in Iran, even if they did so with their parents, and having some extended family there. Doing so would be disruptive and a setback to their education, particularly given that they would need to learn Farsi. They do not presently suffer any physical or psychological issues in Australia. In so identifying the best interests of the children, the Tribunal has considered what decision would be in their best interests not what they might do if their parents were required to cease living in Australia.[9]
[9] Wan v MIMA (2001) 107 FCR 133 at [26] – [27]. Promsopa v MICMSA [2020] FCA 1480 at [54] - [60], [67] and [79] – [80].
For reasons explained further below the Tribunal is also concerned that the cancellation of the applicant’s visa may lead to prolonged detention of the applicant and her husband, which would also result in the separation of the family unit for some indeterminate period of time. Her children are wholly innocent in the circumstances of the non compliance which led to the cancellation and have now lived a substantial period of their lives, including formative developmental years, in Australia as Australians with their parents in a stable home environment. Taking into account these considerations the Tribunal accepts it is in the best interests of the applicant’s children’s development to remain living in Australia with their parents. It gives this factor considerable weight towards not cancelling the visa.
Australia's non-refoulement obligations
The Tribunal notes in this case an International Treaties Obligation Assessment (ITOA) was completed which found that the applicant did not face a real chance or real risk of serious or significant harm. The Tribunal is not bound by the conclusions of the ITOA assessment, which in any event was completed over 6 years ago now and therefore is no longer current.
Since that time, amendments that have come into effect to s 197C of the Migration Act now provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal, and as a result of these amendments it is not necessary for the Tribunal to make determinative findings about those matters in the context of this cancellation decision.
The effect of these amendments are as follows. If the applicant’s visa remains cancelled and she is an unlawful non-citizen she is liable to detention under s 189 of the Act, and must be removed as soon as practicable: s 198 of the Act. However, under a new amendment to s. 197C inserted on 24 May 2021,[10] s 198 does not require or authorise removal of an unlawful non-citizen if, in the course of having their last protection visa application considered, there was a protection finding made, unless that decision with the protection finding has been quashed or set aside, the Minister is satisfied that the non-citizen is no longer a person in respect of whom a protection finding would be made, or the non-citizen has requested removal. To complement this, a new s 197D(2) was also inserted which provides that, for the purposes of s 197C(3), the Minister may make a decision that a person is no longer a person in respect of whom a protection finding would be made.[11] As, generally speaking, a protection finding relates to a favourable finding by the Minister or a delegate in relation to some or all of the relevant protection visa criteria, the practical effect of this seems to be that, in relation to the cancellation of a protection visa, the former visa holder will not be subject to removal under s 198 unless and until there is a further decision under s 197D that a protection finding would no longer be made.[12]
[10] s 197C(3) – (9), inserted by s 2 table item 1 and item 3 of sch 1 to the Migration Amendment (Clarifying International Obligations for Removal) Act2021, No. 35, 2021.
[11] s 197D, inserted by item 3A of sch 1 of No. 35, 2021.
[12] s 197D, inserted by item 3A of Sch 1 to No. 35, 2021. A decision under s 197D(2) that a person is no longer a person in respect of whom a protection finding would be made is an MRD reviewable decision under Part 7 of the Act: s 411 inserted by item 3C of Sch 1 to No. 35, 2021.
In this case the applicant made a valid application for a protection visa on 12 April 2011 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 13 April 2011. The decision to grant the applicant a protection visa has not been quashed or set aside, and there is no information before the Tribunal to indicate the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
In such a scenario cancellation may lead to prolonged detention for these reasons. The Tribunal gives this factor significant weight towards not cancelling the visa, particularly taking into account the applicant’s children including his [age] year old Australian citizen son who are dependent on her and her husband who may also be subject to prolonged detention for the same reasons. The Tribunal gives this consideration significant weight toward not cancelling the visa.
For the reasons set out above, the Tribunal finds that ss 197C(3) and 197D(2) provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal and it is not necessary for the Tribunal to make findings about those matters in the context of this decision.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal
If the visa is cancelled and the applicant exhausts her appeal rights, she will become an unlawful non-citizen and may be detained under s 189 of the Act. She is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for her as noted, the Act does not require or authorise her removal as per the recent amendments: s 197C(3). This means she may face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant her a visa under s 195A of the Act, the Minister decides under s 48A of the Act it is in the public interest for her to be able to apply for a further protection visa, or she acquires a right to enter and reside in another country.
As it considers the prospect of indefinite detention likely in the applicant’s case the Tribunal gives this factor significant weight against cancelling the applicant’s visa.
DISCRETION
In exercising its discretion as to whether the visa remains cancelled or not, the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department about her citizenship status at the visa application stage to gain a favourable migration outcome, and the significance of the incorrect information to the decision to grant the visa. Further she maintained the falsehood and did not admit the non compliance until the first Tribunal’s review process.
However having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular, the Tribunal has given careful consideration to, and placed significant weight on, the following:
a.The Tribunal has found, above, that it is in the best interests of the applicant’s children (one of whom is an Australian citizen) to remain living in Australia with both parents. The Tribunal is obliged to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the CRC. The elder child arrived in Australia at the age of [Age], and is now [Age] years and the younger one was born here. They are for all intents and purposes, Australian and while they both also have Iranian citizenship, have been back to Iran several times and have extended family there, they would face significant difficulties and adjustments settling there, particularly given they do not speak Farsi language necessary for the school system.
b.The applicant and her family have now resided in Australia for over 11 years. They have established their lives here, worked, purchased a home and contributed to the local community. The Tribunal considers this to be a substantial period and the disruption to the family would be significant if the visa remains cancelled.
c.The Tribunal considers the prolonged cancellation process has been a significant consequence of the non compliance already and accepts that the applicant has experienced distress and worry about the future for her children since the cancellation process commenced in 2015.
d.Prolonged detention for an indeterminate amount of time may occur in the applicant’s case if her visa remains cancelled, an eventuality that would be of particular concern given the hardship this would cause to whole family, including the children.
CONCLUSION

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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
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.