2014139 (Refugee)

2014139 (Refugee) [2022] AATA 2508 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2014139
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 9:31am
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 – wife and older child’s protection visas cancelled, with application for review in progress – younger child an Australian citizen – best interests of children as primary consideration – mental health – non-refoulement – protection finding not quashed or set aside – possibility of prolonged detention – decision made without hearing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 101, 107, 109(1), 140, 189, 197C(3), 197D(2), 198, 452(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
Promsopa v MICMSA [2020] FCA 1480
Wan v MIMA (2001) 107 FCR 133
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 his Protection visa application relating to his 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 man from Iran. According to Department records he arrived in Australia [in] October 2010 by boat at Christmas Island. He was granted a Subclass 866 Protection visa on 13 April 2011 on the basis of his claims to be a stateless former resident of Iran with no identity document who feared persecution from the government and security agencies due to his stateless and undocumented status. The applicant’s visa was cancelled on 21 June 2016, the subject of this review.
The applicant’s wife [Ms A] and (then) one year old [child], [Child 1], came to Australia with the applicant and also applied for, and were granted, protection visas. [Ms A]’s protection visa was also cancelled on 21 June 2016, and her application for review is also before the Tribunal.[1] Her [child] was a member of the family unit on her application and his visa was consequentially cancelled under s140 of the Act. The applicant’s second [child], [Child 2], was born in Australia after he was granted a protection visa, in September 2011. He is an Australian citizen.
[1] AAT ref. 2014131
On 11 November 2016 the Administrative Appeals Tribunal (differently constituted) (first AAT) affirmed the decisions to cancel the applicant and his wife’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 oral evidence given at a hearing on 5 October 2016. The present Tribunal has listened to the audio recording of that hearing and the summary of evidence that was included in the first Tribunal’s decision record.[4]
[4] AAT case reference 1610447
On 20 May 2022, the Tribunal received submissions and supporting documents and information from the applicant’s current representative providing updated information about the applicant and his family’s circumstances. 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 applicant was issued a Notice of intention to consider cancellation (NOICC) on 24 September 2015, sent to his last known address. The delegate’s decision record sets out communications between the Department and the applicant subsequent to that, and further copies of the NOICC sent to him by email and registered post. A response to the NOICC was received by the Department on 6 December 2015.
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 s101 in the following respects: he provided incorrect answers at questions 19, 20 and 23 of Part C of Form 866 in his Protection visa application, by indicating N/A to the question of his citizenship at birth, providing no response to the question of his current citizenship and stating his parents were expelled from Iraq and stripped of their citizenship. He provided the same information in his statement of claims for the Refugee Status Assessment (RSA), in his Form 80 – Personal Particulars for character assessment and in a Statutory Declaration dated 7 January 2011.
The NOICC refers to the following evidence before the Department supporting the contention that he is an Iranian citizen:
·On 25 July 2015 the Department received advice that the applicant was issued with an Iranian passport by Iranian Embassy in Canberra [in] 2014.
·Country information indicates that in order 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. Country information suggests security checks are undertaken at the passport application stage. Furthermore, country information suggests that it is highly unlikely fraudulent Iranian passports will pass through Tehran airports, as there are stringent checks.
·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 while he sought protection from having to return to Iran, he travelled to and stayed in Iran for approximately 10 weeks since being granted the class XA subclass 866 Protection visa.
·[In] August 2014 the applicant’s partner and [children] departed Australia, returning [in] October 2014. On arrival, they were in possession of Iranian passports issued [in] 2014 by the Iranian Immigration and Passport Police. The applicant’s [children’s] passports list their father’s name. Information contained in travel booking documents and passenger exit cards show that the applicant’s partner and [children] travelled to Iran for a holiday and were granted entry visas to Iran valid from [July] 2014 until [October] 2014.
·The applicant’s [children’s] possession of Iranian passports indicates that they are Iranian nationals and are recognised as citizens of Iran and suggests that the applicant is an Iranian national as citizenship laws in Iran stipulate that children can only acquire citizenship from their Iranian father (paternal line).
The NOICC contended that the applicant provided incorrect information on the basis of this information as it is apparent that he was not stateless and was not stateless at time of his Protection visa application. Possession of an Iranian passport is evidence of Iranian citizenship and under Iranian law his [children] could not hold Iranian citizenship unless he was an Iranian citizen. His claim to be undocumented and stateless was fundamental to the grant of his protection visa.
Additionally, the delegate’s decision record referred to the applicant’s Iranian passport being examined by the Document Examination Unit (DEU) and found to be genuine, and that the passport contains an observation that his last lawful departure from Iran was [in] October 2010, which contradicts his initial claim at interview that he departed Iran on a fraudulent document. The delegate also refers to the scan of the applicant’s Shenasnameh provided to the Department on 20 March 2016 as part of the International Treaties Obligations Assessment (ITOA) process which contains his Birth Certificate number and National Identity number. The National ID number also appears on an ‘Approval for exit from Iran for spouse and children’ form located in his wife’s possession when she was interviewed on her last entry to Australia [in] August 2014. The fact that the applicant has been issued with these identity numbers is further evidence of his Iranian citizenship.
The applicant maintained, in his response to the NOICC; response to the procedural fairness letter issued in the context of the ITOA process; and (initially) in his evidence to the first AAT, that he was stateless and undocumented upon arrival to Australia in October 2010. He submitted that he subsequently acquired Iranian citizenship when his father acquired it after the grant of the family’s Protection visas. The delegate noted that this claim is inconsistent with Iranian Civil Code Article 985[5] which provides that nationality does not flow on to children over the age of 18, suggesting the applicant would not have been able to acquire citizenship in this manner.
[5] ‘Adoption of Iranian nationality by the father in no way affects the nationality of his children who may have attained the full age of 18 at the date of his application for naturalization CIS17938: "Civil Code of the Islamic Republic of Iran, 23 May 1928 (Unofficial Translation)", Alavi and Associates, Legal Counsels, Islamic Republic of Iran., 01 January 1928
During the hearing before the first Tribunal on 5 October 2016, at the very end of the proceedings, the applicant 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 that he was not stateless but rather an Iranian national.
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 representative provided submissions and the following supporting documents:
·Statement of the applicant dated 16 May 2022
·Statement of the applicant’s wife dated 16 May 2022
·Statements of the applicant’s two [children], dated 16 May 2022
·Report from [Dr B], Psychologist dated 3 May 2022, regarding the applicant’s two [children]
·Report from [Mr C], Psychologist, dated 14 May 2022, regarding the applicant
·Letter from [Mr D], Manager of [Community Centre] dated 31 January 2022
·School Reports relating to the applicant’s two children 2020-2021
·Literature relevant to the issue of the best interests of the children.
The applicant’s statement and submissions confirm his acknowledgement and concession that he is not stateless and did not provide correct information in his Protection visa application. The applicant states that he regrets his failure to tell the truth at an earlier stage.
On the basis of the evidence referred to above supporting the applicant’s Iranian citizenship, his admission to the first Tribunal and the confirmation of his Iranian citizenship status in his recent statement dated 16 May 2022, the Tribunal finds the applicant is an Iranian citizen and was an Iranian citizen at the time he applied for protection. It follows that the Tribunal is satisfied he provided incorrect information about his citizenship status at birth and at the time of the application.
For these reasons the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. 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 applicant claimed to fear persecution on the basis of being a stateless former resident of Iran with no identity document who feared persecution from the government and security agencies due to his stateless and undocumented status. This was central to his protection claims. 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 his claim to be a stateless Arab without citizenship and the disadvantage and discrimination faced on that basis. His 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, on the basis of his claims, that he had a well founded fear of persecution for reasons of his nationality and race. It is clear from the reasons for decision, that the decision to grant the visa was substantially, if not wholly, based on the applicant’s claims of being a stateless Arab in Iran. The submissions of his current representative also concede that the decision to grant a visa was based wholly or partly on the incorrect information regarding his citizenship status. The Tribunal gives this significant weight in favour of cancelling the visa
The circumstances in which the non-compliance occurred
The applicant gave evidence before the first Tribunal that he provided the incorrect information that he was stateless 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 he did not tell the truth at the time of making his application and that he also did not tell the truth when contacted about it by the government. He explained that he was terrified and anxious about his future in Australia and this affected his behaviour. He said he fell into a depression after the visas were cancelled and he has been receiving treatment from a psychologist for some years now. In the 5 years since the cancelation decision and previous hearing he has had time to think about it and seek treatment for his mental health. The applicant expresses his deep regret and is very sorry for not admitting the truth earlier in the process. He repeated that he was terrified about what would happen to his family and his mental health was not good.
The applicant submitted a report from his treating psychologist, [Mr C], who states that he has been seeing the applicant on referral from his GP since July 2017 for treatment and therapy due to the manifestation of worrying symptoms and presentation in the context of his visa cancellation and has consistently showed ‘severe’ in the depression and stress scales on psychometric testing administered in 2017 and 2022. The Tribunal is prepared to accept, on the evidence of the applicant’s recent statement and the psychologist report, that the applicant is remorseful for his non compliance and late admission and has been suffering mentally as a result of the consequences of his actions and prolonged process that has followed. It is prepared to accept that he was motivated by fear of being returned and misguidedly relied on advice of the people smuggler to say he was stateless in order to be successful in his application. However, despite the explanations and statement of regret now provided, the Tribunal finds that the applicant deliberately provided incorrect information to the Department about his nationality and citizenship status for the precise purpose of achieving a favourable visa outcome and the incorrect information was central to his protection claims. The Tribunal gives significant weight to this factor in favour of cancelling his visa.
The present circumstances of the visa holder

The applicant indicates in his recent statement that he has worked hard to provide for his family and has been contributing to the community at the [Community Centre], together with his wife.
On the evidence before it the Tribunal accepts the applicant has been residing in Australia for over 11 years now with his wife and two children, now aged [Age] and [Age]. During this period they were able to purchase a house (subject to a mortgage). The applicant previously held employment at a [company], although his employment and circumstances changed significantly when the cancellation process commenced and he lost his permanent visa status.
The applicant referred to the impact on his mental health as a result of the visa cancellation process. He has sought, and continues to receive, treatment for this. A report from his treating psychologist, [Mr C], confirms that he was referred for psychological treatment and management by his GP in July 2017 due to symptoms arising in the context of his visa cancellation. [Mr C] states that the applicant’s psychosocial history, assessment, clinical presentation and mental status examination is consistent with a diagnosis of major depressive disorder, with anxious distress, severe as outlined in the Diagnostic and Statistical Manual of Mental Disorders (5^th ed, DSM-5). The Tribunal accepts on the evidence before it, that the applicant’s mental health has been significantly impacted as a result of the visa cancellation and particularly the prolonged process and impact on his family.
The applicant referred to fears about the stigma of his mental health condition if he were to return to Iran. His psychologist gave an opinion that, in light of country information about stigmas and limited access to mental health services in Iran, the applicant’s psychological health will deteriorate and suicidality will increase.
A report was also provided from [Dr B] in relation to the applicant’s two children and the family’s circumstances. [Dr B] interviewed the applicant, his wife 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 has established a life here with his family; has been undergoing regular mental health care for some years and his children are settled and doing well in their lives here. It accepts that his access to mental health services in Australia is likely to be better than what he would be able to access and afford in Iran. It affords these matters 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
In his response to the NOICC provided in December 2015, when the non compliance was first put to him, the applicant maintained that he did not provide incorrect information about his citizenship status. He submitted that he obtained an Iranian passport after he was granted his protection visa as a consequence of his father obtaining Iranian citizenship in 2012. He continued to maintain this position before the first Tribunal, until the very end of the hearing in October 2016, when he conceded that he did in fact give incorrect information and was an Iranian citizen upon arrival in Australia and was never stateless. In his recent statement he expresses regret and remorse for his actions and delay and that he wishes he 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 applicant did not make this concession until very late in the process. In these circumstances the Tribunal considers, notwithstanding the applicant’s concession, his failure to make this admission earlier when provided the opportunity in responding to the NOICC, diminishes the weight that it may otherwise have given to the concession. Nevertheless, the Tribunal gives the applicant’s subsequent concession some, though limited, 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. The applicant, his wife and his two children have lived in Australia in this period and established their lives. This is a substantial length of time, particularly in the context of the lives of the children, the older one having arrived at age [Age] and is now [Age] years old and the younger one, born in Australia, is now [Age] years old. The Tribunal gives this factor significant weight 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 involvement and contribution to the community at [a Community] Centre, where he attends regularly since 2013. A letter from the Director and Manager, [Mr D], 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
There are no consequential cancellations under s140 in respect of the applicant. However, the Tribunal notes, and takes into consideration, the applicant’s wife was granted a protection visa separately to the applicant (and has a separate review for the cancellation decision in her case) and [Child 1] was included in her application and therefore is subject to consequential cancellation under s140 on the basis of the cancellation of her visa. Their younger [child] 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[6] 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.[7]
[6] Article 28, Articles 23 and 24
[7] 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 B], 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] aged [Age] and [Age] respectively. [Child 1] has lived in Australia since the age of [Age] and [Child 2] was born here and is an Australian citizen. The evidence indicates the children attend school and are in years [grades] 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 B]’s opinions set out in her report.
[Dr B] 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 a 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 that 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 B] opined that their educational trajectory could take a significant step backwards. In conclusion, [Dr B] stated ‘while it is impossible to crystal ball the impact this will have on the children for each person as 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 the applicant’s Iranian citizenship. As Iranian citizens, country information before the Tribunal indicates that they will have access to services including education and health as other Iranian citizens,[8] although it 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 strongly supported by country information, with DFAT assessing 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.[9]
[8] DFAT Country Information Report Iran April 2020, para 2.36
[9] 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 involuntarily. The Tribunal accepts that they have spent their entire lives (or virtually, in the case of the elder one, who was [Age] 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. They are both 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.[10]
[10] 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 possibly his wife), which would also result in the separation of the family unit for some indeterminate period of time. The applicant’s 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 he is an unlawful non-citizen he 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,[11] 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.[12] 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.[13]
[11] 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.
[12] s 197D, inserted by item 3A of sch 1 of No. 35, 2021.
[13] 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 ethe 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 [child], who are dependent on him (and his wife who may also be subject to prolonged detention for the same reasons). The Tribunal gives this consideration significant weight towards 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 his appeal rights, he will become an unlawful non-citizen and may be detained under s 189 of the Act. He is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for him as noted, the Act does not require or authorise his removal as per the recent amendments: s 197C(3). This means he 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 him a visa under s 195A of the Act, the Minister decides under s 48A of the Act it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.
As it considers the prospect of indefinite detention likely in the applicant’s case, and the applicant has ongoing chronic health issues, the Tribunal gives this factor significant weight against cancelling the applicant’s visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant indicated in his statement his concern that his mental health condition would be a stigma against him in Iran, as Iran is not as accepting as Australia about mental health issues. The Tribunal accepts there is some evidence for the applicant’s concerns about the social stigma attached to mental illness in Iran. Country information indicates that while the availability of mental health services has improved, ongoing social stigma discourages people from seeking professional treatment.[14] Given the concerns the applicant has raised, it is possible he would be reluctant to seek out and continue to access treatment, as he has done here. It gives this some weight against cancelling the visa.
[14] DFAT Country Information Report , April 2020, paragraph 2.24-2.25, p15
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 his citizenship status at the visa application stage for the purpose of gaining a favourable migration outcome, and the significance of the incorrect information to the decision to grant the visa. Further, he maintained this falsehood up until a very late stage in the hearing of 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:
·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.
·The applicant and his 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 there would be significant disruption to the family if the visa remains cancelled.
·The applicant suffered significant mental health issues arising from and since the cancellation process over the past 6 years. The Tribunal considers the prolonged process of this cancellation has been a significant consequence he has suffered for the non compliance already. He has and is continuing to receive mental health treatment, which he may not be willing or able to access in Iran if he was required to return there due to limited services and social stigma. Failure to access treatment would be detrimental to himself and his family.
·Prolonged detention for an indeterminate amount of time may occur in the applicant’s case if his visa remains cancelled, an eventuality that would be of particular concern given his ongoing mental health issues and 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.

[2022] AATA 2508

15 June 2022

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