2101532 (Refugee)

[2022] AATA 576

2101532 (Refugee) [2022] AATA 576 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101532

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Melissa McAdam

DATE:1 February 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 01 February 2022 at 3:11pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – Federal Circuit Court remittal – incorrect answers given in visa application – citizenship – stateless or Iranian citizen – born in Iraq and living in Iran from a young age after father killed – mother’s remarriage to Iranian citizen – applicant’s Iranian driver’s licence includes father’s name and national identity card number – accuracy of translation relied on by department – licence obtained by third party while applicant in Australia to expedite gaining Australian licence – real state of satisfaction required that ground of cancellation exists – Iranian licence includes photo taken later in Australia – adverse claims made by separated wife in Family Court proceedings and anonymous allegations made to department – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A(1), 101(b), 109(1)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA (FCA, Sackville J, 6 December 1994)
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235

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

1. 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 (the Act).

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

3. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The matter was previously before the Tribunal, differently constituted.[1] The Member in that proceedings affirmed the delegate’s decision. The applicant successfully appealed the Tribunal’s decision in the Federal Circuit Court. The Court issued a writ of certiorari quashing the decision and a writ of mandamus directing the Tribunal to determine the application according to law. It was conceded that the decision was affected by jurisdictional error because the Tribunal, in exercising its discretion under s 109 of the Migration Act 1958, made an illogical or unreasonable finding concerning a 2007 Driver’s Licence, namely that it failed to determine whether the 2007 Licence was genuine or not, in order for it to find that the applicant had given false answers in his protection visa application.

   Section 107 notice, NOICC

   [1] Tribunal file number 1720145

5. On 16 December 2016 the department issued to the applicant under s.107 of the Act a notice of intention to consider cancellation of the applicant’s protection visa (‘the NOICC’).  In the NOICC the delegate set out the following:

   Particulars of the possible non-compliance:

   | consider that there has been non-compliance with the following section of the Migration Act 1958:

   Section 101 — Visa application are to be correct, where:

   s101 A non-citizen must fill in or complete his or her application form in such a way that:

   (b) no incorrect answers are to be given

   …

   [In] May 2010 you arrived as an irregular maritime arrival at Christmas Island and made claims to being a refugee. On 1 August 2010 you requested a Refugee Status Assessment (RSA) by the Australian Government which was subsequently refused on 10 September 2010. You lodged an application for an Independent Merit Review of the refusal of your RSA on 25 September 2010. On 5 June 2011 the Independent Merit Review recommended that you be recognised as a person to whom Australia has protection obligations under the 1951 Convention relation to the Status of Refugees. The Minister raised the S46a(1) bar to allow you to lodge a Protection visa application.

   On 19 July 2011 you lodged a subclass XA 866 Protection visa application. As part of your application, you completed Form 866 - Application for a Protection (Class XA) visa. I would like to draw your attention to the following questions you were asked on this form and your responses:

   At question 19 of part C of the Form 866, which states ‘Your citizenship at birth’ you responded ‘Stateless’.

   At question 20 of part C of the Form 866, which states ‘Your current citizenship (if different to at birth’ you responded ‘N/A’.

   At question 23 of part C of the Form 866, which states ‘if you are stateless, how, when and why did you lose your citizenship?’ you responded ‘From birth’.

   At question 41 of part C of the Form 866 which states, I am seeking protection in Australia so that I do not have to go back to’ you responded ‘Iran’.

   At question 42 of part C of the Form 866 which asks, ‘Why did you leave that country’ you responded ‘Please refer to attached statutory declaration’.  The statement ‘Please refer to attached statutory declaration’ refers to your Statutory Declaration made on 1 August 2010 as part of your RSA and submitted with your Form 866 application form.

   You declared the following information on the Statutory Declaration:

   The reasons I left Iran

   I came to Iran when I was a young child with my mother. We were given a Green Card. This gave us almost no rights. I was only able to attend primary school. I could not work legally. I was not entitled to free medical care or other services that were available to Iranians. I could not get driver’s licence or buy a car or motor cycle...

   In mid-2009, after the elections, I was taking passenger on my motor-cycle when another motorcycle with two passengers started to chase me and called out for me to stop. I could that see that they had a radio carried by police, so I assumed they were police. I do not why they wanted us to stop, but I was afraid because I did not have any ID and thought that they might confiscate my motorcycle. They may have been chasing the passenger. He had paid me extra because he was in a hurry and wanted to get out of the area quickly.

   The police could not catch me, so they threw something at my face and I came off the bike. I was in a coma for 20 days. When I woke up I was in hospital and I was tied to the bed. Two days later some police to my room at the hospital. They asked me for my identification and whether I was working for an anti- government group. I said that I did not belong to any anti-government group and that I did not have my ID with me. The (sic) came back two or three times. When I did not answer, they hit me. After about three days I escaped from the hospital with the help of a nurse who gave me clothes. I escaped during visiting hours when I was able to slip out unnoticed.

   After that I went to stay with a friend. I decided that I should leave the country. It took some time, but eventually made arrangements to leave the country and travel to Australia.

   Based on this information you provided, plus meeting all other relevant criteria, you were granted a class XA subclass 866 Protection visa on 20 July 2011.

   Information was since received by the Department to indicate that you hold an Australian Drivers licence. The department received information from the NSW Roads and Maritime Services for the records relating to you obtaining a car licence. The subpoena returned a certified copy and translated extract of your Iranian driving licence; licence [number], issued on 15 June 2007 and valid for ten years. The drivers licence also listed your fathers details; his name: [Mr XY], ID Card No: [Number 1] and issued in Tehran.

   Country information indicates that in order to apply for and be granted a National Identity card, Iranian nationals must hold precursor documents such as an Iranian birth certificate. Country information also advises, by operation of Iran’s nationality laws (Article 976 (2)), children born in Iran or outside whose fathers are Iranian, are considered to be Iranian subjects. Therefore since your father had a National Identity Card and therefore an Iranian birth certificate, and Iranian citizenship is passed through the paternal line, this information would all suggest that you are an Iranian citizen.

   Furthermore, in order for you to obtain an Iranian driving licence, the Iranian authorities must have been satisfied that you were able to stay in lran, and that you had sufficient Iranian identity documents.

   Given this information it is apparent that you have provided incorrect information in your application for a Protection visa. It is apparent that you are not stateless and were not stateless at time of your Protection visa application. Your claim to be stateless and not holding an Iranian driver’s licence was fundamental to the grant of your protection visa.

   Given this information that has come to light, it is apparent that you are an Iranian citizen and were so at time of your protection visa application.

   Therefore, I consider that you did not comply with section 101(a) of the Migration Act. I consider that you have provided the following incorrect answers to questions 19, 20, 23 and 42 on part C of the Form 866 - Application for a Protection (Class XA) visa.

   At question 19 of part C of the Form 866, which states ‘Your citizenship at birth’ and you responded ‘Stateless’ this is incorrect as it appears you are an Iranian citizen.

   At question 20 of part C of the Form 866, which states ‘Your current citizenship (if different to at birth)’ and you responded ‘N/A’ this is incorrect as it appears you are an Iranian citizen.

   At question 23 of part C of the Form 866, which states ‘If you are stateless, how, when and why did you lose your citizenship?’ and you responded ‘From birth’, this is incorrect as it appears you are an Iranian citizen.

   At question 42 of part C of the Form 866 which asks, ‘Why did you leave that country’ you responded ‘Please refer to attached statutory declaration’ and in the statutory declaration you made the following statements:

   ...We were given a Green Card. This gave us almost no rights.... I could not get driver's licence...

   I consider that as you have been found to possess an Iranian drivers licence, your statement is incorrect. I also note that on your drivers licence your father’s Iranian National ID Card number is recorded, which also indicates that your father holders Iranian citizenship, and therefore you would hold Iranian citizenship also.

   ... I do not why they wanted us to stop, but I was afraid because I| did not have any ID...

   | consider that as you have been found to possess an Iranian drivers licence which was issued in 2007, and this event occurred in 2009 that your statement is incorrect.

   ...They asked me for my identification and whether I was working for an antigovernment group. I said that I did not belong to any anti-government group and that I did not have my ID with me.

   I consider that as you have been found to possess an Iranian drivers licence that your statement is misleading and likely to be incorrect.

   Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. As the incorrect information you provided was material to this determination it appears you may not have engaged Australia’s protection obligations.

   As such, I consider that you have not complied with section 101(b) of the Migration Act 1958 and your visa may be liable for cancellation.

   What you can do

   Before a decision can be taken on whether to cancel your visa, the Migration Act gives you the opportunity to comment on the possible non-compliance and to give a written response why your visa should not be cancelled. Your response should provide reasons:

   why you think you have complied, or why you have not complied, with s101(b); and

   why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied, as the delegate may disagree with you); and

   provide any supporting evidence.

   You must provide your response in writing within fourteen (14) calendar days after you are taken to have received this letter.

   Applicant’s Response to NOICC

6. On 20 January 2017 the applicant’s Agent provided the following written response on behalf of the applicant:

   … The visa holder states that as he has not breached the laws and that he complied with the Migration Law, his visa should not be cancelled, bearing in mind that he has established his family and consider Australia as his home. He is married to an Australian wife and have an Australian child. He has accomplished his protection in Australia by enjoying his spousal life and parenting responsibility towards his Australian kid (attached find his marriage certificate and child’s birth certificate).

   It is unreasonable to cancel his visa for the Australian child’s best interest as the Family Law Act makes clear that:

   - both parents are responsible for the care and welfare of their children until the children reach 18, and

   there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

   …

   The Iranian driver Licence

   Although, the visa holder agrees with information you provided in regards to obtaining an Iranian driver licence, yet the information provided in the translation did not reflect the full contents of the source. Therefore, we obtained a professional opinion from an accredited third party (attached).

   [Ms A] who is a Professional Translator from Persian to English language NAATI No. [Number 2] has provided the following statement:

   Due to additional information written on the driver’s licence of [the applicant], that I have translated, I am writing this letter to emphasize the additional information:

   1. On the top right hand side, it is typed “Exiled from Iraq”

   2. On the top right hand side, it is typed “this card has no value for implementation of and legal transactions”.

   3. The word “Birth certificate” has been crossed out and replace by the word “Card”

   4. The card No. [Number 1] written next to crossed out “Birth Certificate” belongs to the holder of this drivers licence [the applicant].

   Additionally, the professional translator provided a new translation of the licence to reflect all source contents.

   The above information is significant as the department relied on the translation provided by CRC that did not provide this new information. Therefore, it is unreasonable to use the information before the department to determine that the visa holder was and is an Iranian citizen and has provided misleading information to the department.

   Furthermore, the visa holder states that this drivers licence was obtained on his behalf while he is in Australia; he used his connections in Iran to obtain with his correct information and Iranian migration status “Exiled from Iraq”. Although it was stated that it was issued on 15 June 2007, the fact is that it was issued after that date and while the visa holder was in Australia. Please refer to his photo on the licence and his photo on his travel document as both show the same.

   The visa holder stresses that drivers licence can be obtained by paying under the table, please refer to discussion forum “how to get an Iranian driver licence”!. His licence was issued for him by assistance of connections in Iran after his departure and yet he provided it in his good faith to the authorities to obtain an Australian driving licence.

   The visa holder since his visa grant, to date, appreciates the Australian values and culture, he respects and abides by the laws we uphold. He has been involved in community activities and has developed a good rapport with everyone. Therefore, considering the above discussion and submission, we submit on his behalf that his visa should not be cancelled.

   Allegations

7. A letter dated 4 February 2019 received by the department from an anonymous author alleged the following against the applicant:

   -That the applicant had Iranian nationality

   -That the applicant’s father and mother held Iranian nationality.

8. The author of the letter also provided copies of documents stated to be official Iranian documents in the names of the applicant, his mother and his father or step-father.

   Delegate’s decision

9. The delegate found that the applicant had not complied with s.101(b) of the Act. The delegate reasoned that:

   The visa holder stated in response to the notice that the driver's licence was obtained on his behalf while he is in Australia and that he used his connections in Iran to obtain this with his correct information and Iranian migration status “Exiled from Iraq”. Further, the visa holder stated that driver's licences can be obtained by paying under the table in lran. Whilst the method of obtaining his Iranian driver's licence is plausible, I note that Iran is also a highly regulated country in relation to the issue of documents. Given that the visa holder confirmed in response to the notice that his driver's licence contained his correct information, I consider that the Iranian ID card number also included on his driver's licence is the correct information and indicates that the visa holder is an Iranian national.

   I consider the fact that the visa holder had an Iranian driver’s licence issued in 2007 to be a significant matter in this case especially given that the visa holder stated at time of Protection visa application that “...We were given a Green Card. This gave us almost no rights....  I could not get driver's licence...” Furthermore, it would appear that the visa holder held official Iranian documents to secure an Iranian drivers licence which refutes his claims of statelessness.

   Additionally, it was put to the visa holder that his father’s name, [Mr XY] was listed on his Iranian driver's licence. The visa holder has not provided comment regarding this in response to the notice. I find this to be significant in this case especially given that the visa holder claimed at time of protection that his father died in Iraq when he was [Age 1]years old, prior to the visa holder and his mother fleeing to Iran. The visa holder also claimed that his father was stateless and never obtained citizenship of any country.

   Given that the visa holder’s Iranian ID card number and his father’s name appears on his driver’s license demonstrates that this information would have been derived from either of the two official Iranian identity documents; the shenasnameh or the National Identification Card. Therefore this indicates that the visa holder and his father are both known to the Iranian authorities as Iranian nationals.

   This further supports the fact that the visa holder was not stateless at time of Protection visa; and raises serious concern regarding the overall credibility of his claims on his Protection visa application.

10. The delegate considered the prescribed matters set out in regulation 2.41 of the Migration Regulation 1994 and found that whilst primary consideration must be the best interest of the visa holder’s child this must be weighed against the seriousness of the non-compliance of the visa holder and the importance of maintaining the high integrity of Australia’s migration programme. The delegate found that the reasons for cancellation outweigh the reasons not to cancel in these circumstances. The delegate considered that had the [former] delegate been aware of the visa holder’s true identity at the time of his Protection visa application, it would have been unlikely that the visa holder would have been granted a Protection visa, as the incorrect information provided was material to the grant.  The delegate therefore decided to cancel the applicant’s visa

    Information to the Tribunal

    Written Submissions

1. On 31 January 2019 the applicant submitted the following written materials to the Tribunal:

   -The applicant’s Australian Marriage Certificate.

   -A translation of the applicant’s Iranian Driver’s Licence, noting that he was “repatriated from Iraq” and that his father’s name is “[Mr XY]”.

   -A letter from an accredited translator stating that she observed the following information written on the applicant’s Iranian Driver’s Licence:

   ·On the top right hand side it is typed 'Exiled from Iraq '.

   ·On the top right hand side it is typed 'This card has no value for implementation of --- and legal transactions'.

   ·The word ' Birth Certificate' has been crossed' out and replaced by the word 'Card'.

   ·The card No. [Number 1] written next to the crossed out 'Birth Certificate' belongs to the holder of this driver’s licence [the applicant].

   -A personal character reference.

   -The applicant’s [child]’s NSW Birth Certificate.

   -A submission by the applicant’s former Migration Agent.

2. On 19 February 2019 the applicant submitted the following written materials to the Tribunal:

   -A character reference from a community organisation.

   -A character reference from the applicant’s doctor.

   -Photographs of the applicant assisting with providing food at a gathering.

   -A further submission by the applicant’s former Migration Agent.

3. On 16 September 2019 the applicant submitted the following written material to the Tribunal:

   -A Statutory Declaration by the applicant stating that his mother acquired Iranian nationality through her second marriage to an Iranian national.  Her Iranian husband physically abused the applicant so he left home.

4. On 1 November 2019 the applicant submitted the following written material to the Tribunal:

   -A Statutory Declaration in which he states the following:

   I confirm that I provided the tribunal with the correct information in relation to my marital status and my marriage life, what my agent stated on 28 January 2019 is correct, as was married to an Australian wife and have an Australian child, it is correct that enjoyed my spousal life and parenting responsibilities.

   My problems with my wife started around Christmas time of 2018, in the beginning I didn't imagine that our problems will escalate, I tried my best to reconcile with my wife, however, she was persistent that we break up from this relationship, I was unable to give the tribunal an update about something that I am not certain how it will end, me and my wife are not divorced until now, we are going through legal battel in relation to the custody of [my child].

   If the tribunal think that I misinterpreted the facts in relation to my marriage status, then it is my statement that I didn't misrepresent any fact, because I cannot say for sure that me and my wife broke up when we were at the initial stage of our problems.

5. On 6 December 2021 the applicant submitted the following written material to the Tribunal:

   -A written submission by the applicant’s current Migration Agent.

   -A Statutory Declaration by the applicant in which he states:

   I was born in Karbala on [Date, Year 1], Iraq , my mother and father were born in Iraq. My name is [the applicant], I have never been known by any other name , my name on [Social media] page is [Username], I created [Social media] name when I was in Australia, "[Part of username] " means "[Meaning]" in [Language], my friends chosen this name to my [Social media] page.

   I am in de facto relationship with [Ms B], me and [Ms B] live in the same place, [Ms B] is an Australian permanent resident on [a visa].

   My father got killed in in Iraq after the uprising against Saddam Hussein in 1991. Shia in the south of Iraq revolted against Saddam Hussein's regime at that time following the Iraqi invasion of Kuwait, I was [Age 1] years old when me and my mother escaped to Iran, my mother apprehended that she will be punished by the Iraqi government so she escaped to Iran

   My father's name is [Mr XY Applicant’s surname], my mothers name is [Ms C].

   After my mother and I escaped to Iran , we were granted green card, I was included in my mother's green card , around three or four years after that my mother got married to an Iranian Citizen (he was originally an Iraqi Citizen), as a result my mother was granted an Iranian Shensnameh (birth certificate ) as she became an Iranian citizen in 2002, the Iranian government replaced the green card with white card, however, I was not included in the new system of white cards as I was included in my mother's green card until 2002 and due to her marriage and acquiring Iranian citizenship then I did not have a status in Iran , because in Iran , only the family head can apply for refugee cards on behalf of the children and while my mother acquired Iranian citizenship then I was not included in the new system of white cards in Iran, therefore I was stateless Arab all this time in Iran, I have advised the department of immigration about the fact that my mother acquired Iranian citizenship and that she is married to an Iranian citizen as well, that was prior to the grant of my protection visa.

   I don't have any right to Iraqi citizenship, I never applied for Iraqi citizenship and I never had any documents from Iraq, as I stated above , my mother acquired Iranian citizenship because of her marriage an Iranian national, the law in Iran doesn't entitle me to acquire Iranian citizenship because of my mother’s new citizenship, in Iran , you have to have an Iranian ancestry in order to get Iranian citizenship , I have advised the department from the beginning about my mother's Iranian citizenship and about her marriage from "[W] ".

   When I was 12 or 13 years old, I left family home after I was mistreated by my stepfather, during these years my step father was very cruel and he considered me as a burden on him, at that time I lived in a factory where I worked as well. after that I lived and worked in a restaurant , I was abandoned by my mother as she was very busy with her life , I felt the bitterness all of my life because of how things were against me all the time and how I was neglected by my mother and step father, I don't have any relationship with my mother and step father since then.

   I never travelled outside of Australia fearing persecution, I fear harm from the hands of the Basij in Iran for the reasons mentioned in my application for protection visa.

   I confirm that the Drivers licence that I presented was obtained through a person called "[Mr D] or "[Alternative spelling]" who used to live in Sydney NSW, the reason why I approached [Mr D] was the fact that if I don’t have an overseas drivers licence then I should stay on the "L" licence followed by red "P" and green "P" licence , while if I present an overseas drivers licence then the RTA will grant me a full licence "C", so I paid [Mr D] in order to get the licence , [Mr D] told me that he will bring me drives licence original from Iran. I told [Mr D] that it was impossible because I was here in Australia , the licence in the name of [the applicant], in this drivers licence, [Mr D] used the same photo I used to get my "titre de voyage " , my purpose was to get full licence , the issue before the previous AA T hearing was in relation to the 2007 driver's licence , accordingly I went to the RTA telling them that the drivers licence was fraudulent and I provided written statement to the RTA in this regard, I understand that my letter to the RTA is part of the material that the Tribunal have .

   I invite the Tribunal to inspect the drivers licence that I presented as it is fake drivers licence, because I was in Australia when I got this licence through [Mr D], [Mr D] advised me that he will get me genuine drivers licence but apparently it wasn't , the photo on the 2007 drivers licence is exactly the same photo that I have on my Australian travel document that was issued in 2014, that by itself proves that the 2007 licence is fraudulent in nature .

   I confirm that I and my wife have family problems in relation to the custody of [our child],  my ex-wife [Ms F] presented an affidavit to the family court that are full of fabrications, I remember that have seen her affidavit which contained many fabrications , when the dispute about the custody of my child started , I requested that have share of the custody of my child as usual , because I miss my child too much and I cannot sleep my nights because of that, so what my ex-wife done was to tell the family Court that my visa was cancelled and that if the Court grant me some custody rights then that will lead to my child depending on me emotionally, and then if I will be deported then that will lead to a major depression to the child, so the Family court adjourned the hearings waiting for my residency status to be sorted , that is why my family court is pending until now, I live in daily torture because of this because I couldn't prove to the court that I have even a bridging visa due to the cancellation of my visa, it will be great damage to my child's welfare if he grew up without the care of his biological father.

   Due to the problems that happened between me and my ex-wife, she threatened me that she will deport me to Iran and that I will be harmed because she knew that I am wanted to the Iranian government as a result of my escape from the hospital in iran in 2009 after I was accused of being anti-government person, she threatened me that she and her brother in law who works for the Itila'at (Iranian security forces) will manage to force my removal to Iran where I will be persecuted , accordingly she and her brother in law fabricated some documents and presented them to the family, these documents accuse me of being an Iranian citizen , the affidavit that she filed contained forged documents for the purposes of cancelling my visa in Australia, she fabricated all of this evidence in order to remove me to Iran because we have a family court dispute about the custody of our child, I don't have a copy of this affidavit or the documents that she presented however, I remember the content of her affidavit and the forged documents that she presented, she presented fake documents in order to confirm the cancellation of my visa and in order to deprive me from seeing my child and to harm me in Iran.

   As I stated above , my mother got married to [Mr WZ] , I remember that my ex-wife fabricated an Iranian card which shows his name as [Mr XYZ] to show that my father is still a live and that I gave an incorrect information, and although my father's surname was not" [Z]", she also provided another document as I remember that says that I was born in [Year 2] while my date of birth is [Year 1], I confirm that she provided incorrect information to the Court as it contained names that are not mine and date of birth that are not mine as well , I remember also that one of the documents she presented contained a photo that is not for me not my date of birth and the photos on this licence is not mine , I invite the tribunal to do a comparison between the photo on the drivers licence and my picture , you will note the difference between the two, as I said , my wife fabricated all of these evidence in order to deport me from Australia and to prevent me from seeing my child due to the sever family problems that we had .

   I remember also that my ex-wife presented an iranian The Shenasnameh (birth certificate) which is supposed to be for my mother , even this birth certificate is fraudulent and she done that intentionally in order to exclude me from the custody of my child , she threatened me that she will force my removal from Australia and she tried everything to do that , even by following illegal methods ,for example , the alleged birth certificate of my mother (Sheneshnameh) says that it was issued by the consulate of Karbala when Karbala is in Iraq and not in Iran , how an Iranian documents is issued in Iraq ? , also the screen shot of my iPhone shows a conversation between me and someone with the name of [G]" who I don't know at all , my ex-wife committed forgery.

   I did not give any incorrect information, I advised the department that my mother acquired Iranian citizenship because of her marriage to [Mr WZ], [Z] is not my surname at all

   Another question that I put to the tribunal is that if I have birth certificate, passport or ID from Iran then why my ex-wife did not present them to the department especially that we were married and have child and we lived together·, it is clear that my ex-wife fabricated some documents in order to defeat me in my family court dispute.

   The reason why I discuss these issue in this statement is that in my previous tribunal, I was faced with information that alleged that I have the citizenship of Iran, I believe that my wife was the reason behind the incorrect information that reached the tribunal

   In February 2019 I converted to the Zoroastrianism , and I am true believer in that religion , I found that this religious reflects my identity and personality because it doesn't distinguish between people, full respect to the nature and animals such as dogs and any animal which is considered "filthy" in Islam, also because this religious doesn't have persists of sheikhs and it believes in the karma and many other principles that I am fond of, I was familiar with this religion almost 5 years ago when I started studying about this religion and especially when I saw that my wife was a fanatic Muslim who used religion to justify her acts.

   I fear that I will be persecuted die to my religious beliefs in Zoroastrianism as this faith is hated by the Iranian conservative government and people, I believe that I will be harmed in Iran because the main principle of the Zoroastrianism is to call people for the principles of this religion which means that I have to be active in publicising this religion which means that I will be persecuted in Iran for these reasons.

   My family court is still pending, and they are waiting for my tribunal decision in order to decide the custody arrangement over the child , the reason being is that in order to grant me a custody rights the court should be satisfied that I will be residing in Australia and that I will not be removed from Australia because my removal from Australia will cause depression to my [child].

   Currently I am working at [Workplace] at [Suburb 2] , I never been charged with any offence or any crime , I am law abiding person and I am trying my best to be a good example of an Australian resident and future Australian citizen.

   I confirm that I will be persecuted in Iran due to the perception about my political activities , due to my conversion to the new religion and due to the fact that I was singled out as member of particular social group who is targeted by the Iranian government , I confirm that I am stateless person who suffered real harm and Iran and who will be subject to real harm if l to be forced to return to Iran.

   -A Statutory Declaration by the applicant’s current partner [Ms B] in which she writes about how she met the applicant and how their relationship developed. She states she is of the Zoroastrian faith and introduced the applicant to the Zoroastrian religion. She describes the applicant’s former wife as a “fanatic Muslim” who is angry and bitter at the applicant.

   -A Statutory Declaration by [Mr D]in which he states the following:

   I am dual citizen of Australia and Iran.

   I was born in Tehran, I came to Australia in 1999 on a partner visa.

   In around march 2005 I went back to Iran to run the businesses that my father left to me which are [Business 1] and [Business 2], in 2005 I met [the applicant] who is stateless person , [the applicant] used to have a motorbike and he used his motor bike to transport goods that I used in both my [Business 1] and my [Business 2].

   In Ira , I used to have frequent contacts with [the applicant] as my business required daily transport of goods to both [businesses]. the period when I had a contact with [the applicant] was for the period between 2005 and 2010 when he left Iran.

   I confirm that [the applicant] is stateless person and doesn't have a drivers licence in Iran, I know that for a fact because as I stated above [the applicant] used to use his motorbike which was registered in someone's else name , I know for sure that [the applicant] doesn't have a drivers licence and he was driving his motor bike illegally (without licence), it was common thing for stateless people and refugees in Iran to these kind of jobs, we as business owners knew that as it was very common practice. I confirm that my relationship with [the applicant] extended beyond my business commitments, as I developed great relationship with him as I know that he is very honest person and he was struggling due to his statelessness status in Iran, I confirm that [the applicant] told me about how his father got killed in Iraq in 1991 and how he lived a very hard life in Iran, I myself witnessed how [the applicant] have no rights in Iran. I personally warned him many times when the Iranian Basij or Itila'at  comes to the area as they used to arrest the  people who worked illegally in our area, the security forces were  more strict in dealing with stateless people who worked in the capital of Tehran;  I used to warn [the applicant] about these thing so he run away from the area , because [the applicant] was very close to me and I liked him very much and I consider him like a brother to me.

   In 2012, and after I came back to Australia , I was very pleased to see [the applicant] in [an event] at [Suburb 1] NSW. It was very nice thing to see [the applicant] again, I was very pleased to see him in Australia as I felt he is very well protected in Australia compared to the persecution he suffered in Iran, we became inseparable in Australia, [the applicant] was like a brother to me I confirm that [the applicant] is stateless person until now, as I said, I am very close to [the applicant] and my friendship with him was established in Iran and it was continuing in Australia all this time

   In around February 2020, [the applicant] joined the Zoroastrianism religion, I was very happy for him as I saw that he is very happy with this religion and I saw how happy he was with his new faith, [the applicant] used to tell me about his activities within that religion, I am Muslim by faith, however I am very happy for [the applicant] conversion to his new religious because I understand that it is something that made him very happy person and have interests in something in this life, and I saw how he occupied his time searching and learning about his new religion, especially after his drastic breakup with his wife.

   -A letter from [Dr E] who has had several counselling sessions with the applicant.

   -Counselling notes from [Dr E].

   -A letter from [Dr E] confirming the applicant’s conversion to the Zoroastrian faith.

   -A letter from a [University] Religious Studies Professor regarding the applicant’s conversion to the Zoroastrian faith.

   -Letters of support for the applicant from members of the Australian Zoroastrian community.

   -The applicant’s Australian Tax Return.

   -A letter of support from the applicant’s accountant.

   -Photographs of the applicant, [an Occupation], at his [workplace] in [Suburb 3].

   -Photographs of the applicant with his current partner.

   -Information regarding the Zoroastrian religion.

   Hearing

6. The applicant appeared before the Tribunal on 10 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant is not receiving any mental health treatment. He is not on any medication.

   b.The applicant is separated from his wife but they are not yet divorced. They will get divorced. They have proceedings in the Family Court regarding the custody of their [child].  He has not seen his [child] for three years.

   c.The documents submitted by his wife are not correct.  She wants to get rid of the applicant.  One of his wife’s relatives works in a government department.  

   d.The Sepah are investigating the applicant in Iran because of the incident on his motorbike and the upheaval of 1388.  He thinks his wife’s brother-in-law made documents to damage the applicant.  The brother-in-law works for [Government] Ministry.  He heard this from them, his wife and her mother.

   e.The applicant was approximately [Age 1 or 2]years old when his mother remarried.  The applicant knew the man his mother married in Iran as [Mr WZ].  His mother would call him [W].  The applicant was very young when he left the house because of the beatings from his step-father.  He was 12 or 13 years old.

   f.After he left home the applicant went to a friend who had a factory in Tehran making cages.  He lived there.  His mother and [W] also lived in Tehran.

   g.He was involved in a car accident in Iran and has a brain injury so cannot remember things well.

   h.His mother and he escaped Iraq and went to Iran illegally without papers.  They stayed in a temporary camp in Iran where his mother arranged their paper work and then they went to Tehran.  His mother remarried in Tehran.

   i.The applicant does not have much contact with his mother because of his step-father but they are in touch. He contacts her by phone.  Their relationship is okay.  He sometimes helps his mother.  For example he paid a fine for her.  He thinks her relationship with her husband is not very strong but they are still together.

   j.The applicant has no siblings.  He has one half-brother.  He does not know if [W] had any other children when he married the applicant’s mother.

   k.He has asked his mother for evidence of her second marriage but she said she can’t provide it because all the documents are with her husband and he will not allow her to send them to the applicant.  She has a Shenasnameh.  The applicant will ask her again to provide her documents to him but her husband does not want her to help the applicant.  She has an ID Card which she uses.

   l.The applicant has not visited Iraq since he and his mother went to Iran.  He thinks he has some relatives still living in Kerbala.  His maternal aunt is in Kerbala or Baghdad.  He will contact her to ask if she can provide her identity documents.  His mother has visited Kerbala.

   m.The Tribunal asked the applicant if the ‘card’ mentioned on his Iranian driver’s licence was a reference to his Iranian Carte Melli. The applicant responded that he did not have a Carte Melli.  The Tribunal put to the applicant that country information indicated a Carte Melli was needed to obtain an Iranian Driver’s Licence, and that only Iranian nationals could have a Carte Melli.  The applicant responded that he obtained the Iranian Driver’s Licence in Australia not Iran through a friend who said he could make it. The friend has gone to Iran and the applicant does not have his contact details. His friend told the applicant that the Driver’s Licence was made in Iran.

   n.The applicant’s life is in danger in Iran and he hasn’t been back there. His wife and child previously visited Iran and asked the applicant to go with them but he refused as his life is in danger there, even though he had an Australian travel document.

   o.The Tribunal showed the applicant the copy of the document purporting to be an Iranian passport for ‘[Mr XYZ]’.  The applicant stated that the photograph in the passport was of his step-father but that the applicant knows him as [W].  He has no knowledge of these documents.  They are not legitimate documents.  His wife is doing everything to ruin him.

   p.The applicant lives with his new partner in Sydney.  They run a [Business] together.  They plan to get married and buy a house together.  They have applied for a housing loan and are waiting for the result from the bank.  They plan to have children together in the future.  They are engaged.  His partner has a [permanent visa].  [Details deleted]. 

   q.The applicant adopted the Zoroastrian religion after he researched it.  He had heard about it in Iran.  In Australia he saw its beauty.  He was born into the Islam religion but he did not believe in it.  Islam has some beautiful things but not a lot as the people representing Islam in Iran are not good.  Zoroastrianism considers men and women equal and they have respect for animals. In Islam women are considered lower than men.  He observed this in his childhood. There is a way ashavan, of happiness and truthfulness in Zoroastrianism. Zoroastrians believe that people should not do anything that tortures anything living.  What he does as a Zoroastrian is positive so he gets positive energy in return.

   r.The applicant attends Zoroastrian meetings held by [Dr E] where they discuss things.  He is doing this by telephone now because of the pandemic, every second day.  At the last meeting they discussed how people get energy from the environment and how to ask from the ahura master by focussing and concentrating.  [Dr E] has conducted the Sedreh Pushi ceremony for the applicant.  The applicant knows that he has to do good actions all the time and reflect.

   s.The applicant adopted the Zoroastrian religion five years ago.  He was suffering because of his marriage problems. His wife had extreme Islamic views.  She would not let him hold their child if he had shaken hands with a Christian.

   t.Around two years ago he met his fiancée.  He was already aware of the Zoroastrian religion but became strong in it after he met her.  There are no Zoroastrian temples in Australia so they meet at homes when they can.

   u.Zartush is not a manifestation of God but came a long time before the birth of Christ. He was an investigator who explained and taught the laws to his followers.  His book is God’s book.  The applicant has read it.  Zoroastrians have to teach the faith and bring people to that way of life.  The applicant does this by talking to people and explaining the religion to them.  He has invited two friends to the Zoroastrian religion.  He told them about Zartush and that he is a big philosopher who brought laws to the people and taught three main principles.  His two friends were Iranian and Muslim.  They talked about the lies in Islam in Iran. Killings happen in the name of Islam in Iran.  The applicant told his friends that Zoroastrianism is the religion of peace not killing.  They saw the killing happening around the world by Muslims so they became very interested to come to the Zoroastrian religion. In Zoroastrian they see the religion of kindness and truthfulness. His friends became interested to attend the meetings with [Dr E].  One of his friends has now adopted the religion.  She is [Ms H] and is in Iran. The applicant knew her in Iran and they found each other again through social media. 

   v.When the applicant converted to Zoroastrianism he felt positive energy from everywhere which helped him a lot.  His conversations with [Dr E] give him comfort. He has a beautiful feeling towards the religion.  He does good actions all the time.  He helps people in the street and is kind and forgiving to his employees when they make mistakes.  He makes and provides food to the community on special occasions.

   w.He has not broken any laws in Australia.

   Post-Hearing Submissions

1. On 10 January 2022 the applicant provided the following written materials to the Tribunal:

   -A Statutory Declaration in which he states the following:

   I confirm that I am stateless person.

   After the Tribunal hearing, I have tried every possible effort to convince my mother to send her Iranian birth certificate without success, as her husband is fearful that the Iranian government will track them down because of me, my mother's husband threatened my mother with violence if he is to send me any document from Iran even via telephone or social media, my mother's husband believes that because of my past political perception in Iran and the incidents which led me to flee Iran then it will become obvious that any person who will correspond with me is at risk of being persecuted for the same reason, the tribunal may consider that this reaction from my mother's husband is unreasonable, however, that is exactly what happened to me when I asked my mother to provide me with her birth certificate, people in Iran are so fearful from the Iranian government, especially those who were born in another country like Iraq.

   I was advised by my mother that she was subjected to family violence in Iran since her new marriage, therefor , after the overthrow of Saddam Hussein's regime, she travelled to Iraq with the intention of acquiring Iraqi citizenship for her and me as she was planning to escape from Iran to Iraq due to the Domestic Family Violence, upon arrival to Iraq, she was provided with an information card, after that her application for Iraqi citizenship was refused because the new Iraqi government couldn't find a registry file for her or for my deceased father as the previous regime has destroyed their registry file on purpose, after that she returned to Iran and she lived with her husband as it is the case for a lot of women in Iran who lives under constant domestic family violence until now.

   Attached is translation and copy of the information card which was issued by the Iraqi government to my mother in 2004.

   Attached also are translations of my aunt's [Ms I] and [Ms J] Iraqi national ID cards, recently, I was advised by my mother that both of my two aunts are Iraqi citizen and that they did not have an Iran citizenship at all, my mother also told me that she was unable to acquire Iraqi citizenship because the Saddam government intentionally destroyed their file in Iraq after my father's participation in the uprising against Saddam Hussein in 1990, so, our family records in Iraq was intentionally destroyed for political reasons by the Saddam's Government, my mother did not try again to apply for Iraqi citizenship because it was a lengthy and very complicated process, for my mother such an application is futile for the reasons mentioned above.

   The reason why I refer to my aunt's Iraqi citizenship and my mother's attempts to acquire Iraqi Citizenship is to illustrate that I am still stateless person, and that I don't have an Iranian citizenship.

   In relation to the documents that the tribunal referred to which refer to my mother birth certificate, her husband's ID card and a drivers licence etc, I wish to comment with the following:

   In relation to the alleged message to "[G]", I confirm that this is completely fake message as I don't know anyone with the name of [G], my ex-wife used to use my phone even during the problems between us, my ex-wife might fabricated this message  in order to remove me from Australia.

   In relation to the drivers licence, I confirm that this is not my drivers licence as it was issued on [Date 3] while I was in Australia and I never travelled to Iran, also the photo on this licence is not my photo at all, the tribunal can make facial comparison between my face and the image on the drivers licence, I am ready to sign on any undertaking so the Tribunal can compare the photo on this licence with my photo through a formal facial analysis process, again I confirm that this drivers licence is not mine at all.

   In relation to the alleged birth certificate of my mother I stated before how that birth certificate issued from Karbala while Karbala is in Iraq , I referred to the discrepancy in that regard as the shensnameh an Iranian document and not an Iraqi document, also the serial number on the alleged birth certificate which is [Number 3] is different from [Number 4] which is existed in the following page, this is by itself proves that this document is a counterfeit, I have no idea about how the birth certificate is working but what I stated above prove that there is substantial inconsistencies in this document.

   I have no comments on my mother's ID card and his Iranian passport, however, both documents doesn't prove that I have an Iranian citizenship at all, all what I knew from my mother is that her husband's initial name was "[Mr WY]'' as a compound name , and that he later changed it to "[Y] " only because his name was too long, that is why I know him with the name of [W] only.

   I call the tribunal not to rely on my ex-wife presented documents as they were incorrect and fraudulent  and as I stated during the tribunal hearing that my wife did not present any document to prove that I am an Iranian citizen  although she lived with me and we have a child together  and that she fabricated some documents in order to harm my case before the family court and in order to deport me from Australia  the question that I put to the tribunal is that if I am an Iranian citizen then how come my wife did not present any Iranian document that is related to me and how come she resorted to fabricating documents that is not related to me personally although she lived me and we have a child together.

   -An Iraqi photo ID with English translation, belonging to ‘[Ms K]’, issued [in] March 2004, and stating that the holder of the card is one of the citizens who returned to the homeland and she was provided with the document for six months for the purpose of official review.

   -An Iraqi National ID Card with English translation, belonging to ‘[Ms L]’ with place of birth ‘Kerbala’ issued [in] July 2017.

   -An biodata page extract from an Iraqi passport belonging to ‘[Ms L]’ with place of birth ‘Kerbala’ issued [in] December 2019.

   -An Iraqi Personal ID Card with English translation, belonging to ‘[Ms M]’ with place of birth ‘Kerbala’ issued [in] April 1988.

   -Conditional pre-approval for a housing loan to the applicant and his fiancée from the [Bank].

   -Australian Tax Statements regarding the applicant’s [business].

   -A letter from the director of a Disability Support agency stating that the applicant had provided work experience at his [business] to one of the agency’s disability workers.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

3. 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.

4. 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?

5. 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.

6. There is no onus upon an applicant to establish that a ground for cancellation does not exist.  Generally, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister, or on review, the Tribunal.[2]  In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the Court stated:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[3]

   [2] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

   [3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

7. The Court’s comments would be applicable to cancellations under s.109 of the Act.

8. In the civil context, Dixon J in the High Court held that:

   the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[4]

   [4] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362].

9. While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[5]

   [5] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

    That he provided incorrect answers to questions 19, 20, 23 and 42 on part C of the Form 866 Application for a Protection (Class XA) visa, regarding being stateless, not having citizenship at birth, not having a current citizenship, and the reasons he left Iran.

11. All the evidence presented supports the applicant’s claims to have been born in Iraq and to have been forced out of Iraq to Iran as a child.

12. The determination that the applicant’s answers in his Protection visa application were incorrect largely relies upon the applicant’s possession of an Iranian Driver’s Licence and the allegations received by the Department.

    Driver’s Licence

13. The country information indicates that only Iranian nationals can be issued an Iranian Driver’s Licence, leading to the conclusion that the applicant is an Iranian national, and not stateless. The applicant contends that the Driver’s Licence was obtained while he was in Australia, by a third party, and that it is either a fraudulent Licence or unlawfully obtained. 

14. The applicant argues that the photograph that appears in the Driver’s Licence is obviously one taken of him while he has been in Australia, and also appears on his 2014 issued Australian Travel Document.

15. In the Tribunal’s view the applicant’s argument has force.  In 2007, the date of issue of the Iranian Driver’s Licence, the applicant would have been [Age 3] years old.  The photograph in the licence does appear to be of an older person, although this obviously remains speculative.  More significantly, it is quite apparent that the photograph is the same one as that which appears in the applicant’s 2014 issued Australian Travel Document.   This indicates the Driver’s Licence was created after the applicant arrived in Australia, in or around 2014, not in the year of issue ‘2007’ recorded on the Licence.

16. The Tribunal therefore considers that there is insufficient certainty regarding the authenticity and legality of the 2007 Iranian Driver’s Licence for the Tribunal to find that it establishes the applicant has Iranian nationality.

    Allegations

17. The allegations received by the department are very detailed and include copies of documents purporting to be official Iranian documents issued to the applicant, his mother and his father and/or stepfather.  The documents containing the applicant’s mother and father or stepfather’s name include Iranian passports.  The documents purporting to belong to the applicant are two Driver’s Licences - the 2007 issued Driver’s Licence and another 2018 Driver’s Licence containing a photograph with some apparent dissimilarities to the applicant’s features, indicating that it does not belong to him.  There are no purported documents of nationality belonging to the applicant.

18. The applicant has always confirmed that his mother has Iranian nationality, asserting that she acquired this by marrying an Iranian national in Iran.  He states that the man appearing in the other nationality documents is his stepfather, not his father and that he has since learned that his name was also ‘[Y].’  He further states the documents may not be genuine or lawful ones.

19. The applicant’s contention that the allegations and documents provided were made out of an animosity towards the applicant, is supported by the sentiments expressed in the allegations, and the context in which the information was provided.  While this alone does not make the allegations false it does reveal an element of adverse self-interest which raises a question as to their reliability.

20. The Tribunal considers the applicant’s late explanations as to why his stepfather shares the same given name as his father, weak and contradictory to his earlier evidence that his stepfather’s given name was ‘[W]’.  In the circumstances it is doubtful both men were named ‘[Y]’.  However there remains some small possibility that both men did have the same given name.  It also is quite possible the national identity document copy presented in the allegation is not of a genuine or legally issued document, as it is a photocopy only, and was presented along with at least one other document that appears to be fraudulent, tampered with, or to belong to someone else, namely the 2018 issued Iranian Driver’s Licence. Further the two pages of an Iranian Birth Certificate alleged to belong to the applicant’s mother contain identifiers which show the two pages are from different Birth Certificates, with one referring to the applicant’s mother, not as the holder of the Certificate but as the ‘spouse’ of the holder.

21. Given that the documents are copies, there is some possible self-interest on the part of the person who provided the documents and the allegations, the documents contain at least one that is irregular or improperly attributed to belong to the applicant, and the lack of any actual nationality document in the applicant’s name, the Tribunal is not satisfied the document copies and allegations carry sufficient weight, clarity or certainty to establish that the applicant has Iranian nationality.

22. In view of the above the Tribunal is not satisfied that the available evidence sufficiently establishes to an acceptable degree that the applicant has Iranian nationality.  The Tribunal is therefore not satisfied that the applicant provided incorrect answers in his Protection visa application form in relation to being stateless, not having Iranian nationality, and his reasons for departing Iran.

23. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.

24. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Melissa McAdam
    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.