2105543 (Refugee)

2105543 (Refugee) [2023] AATA 2581 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Peggy Paghona Kerdo
CASE NUMBER:  2105543
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Tamara Hamilton-Noy
DATE:20 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 20 June 2023 at 9:28am
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – Federal Court remittal – incorrect answers given in visa application – undocumented stateless Faili Kurd – political, economic and social discrimination – documentation provided to department by relative shows Faili Kurdish Iranian citizenship – discretion to cancel visa – claim maintained for extended time and in different forums before non-compliance conceded – advised by other boat passengers to claim statelessness – documents held by relative for safekeeping provided to department after family dispute – departed lawfully on valid passport – length of residence, work, family, community activities and health – country information – member of family unit – consequential cancellation of son’s visa with no jurisdiction to review – son’s wife and child Australian citizens – possibility of prolonged immigration detention – combined hearing with wife’s separate review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 424A, 425
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 first named 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 that the applicants had provided incorrect information to the Department about their citizenship in their protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the [first named applicant] (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
Background
The [first named applicant] (the applicant) arrived in Australia [in] April 2010 as an unlawful maritime arrival with his wife [Ms A] and with their son, the second named applicant.
The applicant applied for a protection visa on 17 June 2010. On 26 July 2010, a refugee status assessor found that the applicant was owed protection as an undocumented stateless Faili Kurd.
On 7 October 2016, a delegate of the Department issued a notice of intention to consider cancellation of the applicant’s protection visa, based on documents that had been provided to the Department.
On 21 December 2016, a delegate of the Department cancelled the visa.
The applicants applied to the Administrative Appeals Tribunal for a review of that decision. On 20 June 2017, the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s visa and found that it had no jurisdiction with respect to the second named applicant.
[In] June 2020, the Federal Circuit Court dismissed an appeal by the applicants.
[In] March 2021, the Federal Court remitted the matter to the Tribunal on the basis that the applicants had not been given sufficient particulars of documents before the Tribunal to provide a meaningful response as required by ss 424A and 425.
The applicants appeared before the Tribunal on 5 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant’s hearing was combined with that of his wife.
A resumed hearing was held before the Tribunal on 9 June 2023 and the Tribunal hearing was again conducted with the assistance of an interpreter in the Persian and English languages. The Tribunal also received oral evidence from a number of witnesses whose evidence is discussed further below.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the written protection application dated 17 June 2010 and the accompanying statement provided by the applicant, in the following respects:
·In response to question 6 of the application about his place of birth, the applicant stated that he was born in Baghdad, Iraq.
·In response to question 19 of the application about his citizenship at birth, the applicant stated that he was stateless.
·In response to question 20 of the application about his current citizenship, the applicant stated that he was stateless.
·In response to question 21 of the application about whether he holds citizenship or is a national of any other country, the applicant stated no.
·In response to question 41 of the application about what countries he was seeking protection from, the applicant stated Iraq and Iran.
·In response to question 42 of the application about why he had left his country, the applicant referred to his statement. In the statement, the applicant claimed to be a disenfranchised and stateless person who was being harassed by government agents and subject to discrimination.
·In response to question 43 of the application about what he feared if he returns, the applicant referred to his statement. In the statement, the applicant claimed that he cannot return to Iraq as he has no documents and no identity, and his family never did and that is why they were expelled. The applicant claimed that he has no protection in Iraq and no family and no links, and that he cannot go back to Iran as he fears for his life from the Basij and Pasdar.
·In response to question 44 of the application about who he fears will harm or mistreat him if he goes back, the applicant referred to his statement. In the statement, the applicant stated he fears harm from the Basij and Pasdar.
·In response to question 45 of the application about why he thinks this will happen to him if he returns, the applicant referred to his statement. In the statement, the applicant stated that the Basij and Pasdar will kill him because he is a Kurdish Faili.
·In response to question 46 of the applicant about whether he thinks the authorities can and will protect him, the applicant referred to his statement. In the statement, the applicant stated that the authorities do not and will not and cannot protect them; if they could, they would have done so already.
In making the cancellation decision, the delegate of the Department noted that the Department had received evidence of the applicant’s Iranian citizenship, and that this evidence included: the applicant’s Iranian national identity card; the applicant’s Iranian birth certificate; the applicant’s Iranian passport; the applicant’s marriage certificate issued in Ilam; the applicant’s Iranian bank accounts; and the applicant’s Iranian health insurance documents. The delegate considered that this suggested that the applicant is an Iranian citizen and was so at the time of his protection application and therefore that he had provided incorrect information to the Department.
As noted above, this matter was remitted to this Tribunal on the basis that the information relied upon by the Tribunal had not been put with sufficient specificity as to meet the requirements in s 424A, nor did the information as put to the applicants at hearing meet the requirements of s 425. The Court, in its judgment, noted that the source documents upon which the Tribunal had based its decision were critical, that is, that they were both the impetus and a determinative factor in the Tribunal’s decision. The Court found that there had been no opportunity for the applicants to see the original documents or copies of the documents and therefore could not give evidence about why the documents were not genuine documents. The Court found that where the genuineness of the identity documents was the assumption upon which the whole cancellation process had proceeded, and where the applicants had never been given even copies of the documents, the applicants had not been given sufficient particulars to provide a meaningful response to authenticity of the documents. In addition, the Court noted that there had never been any examination of the documents by the Department’s Document Examination Unit, which the Tribunal had relied upon to bolster its findings.
Given the findings made by the Court when remitting the matter, prior to the hearing the Tribunal wrote to the applicants under s 424A, enclosing copies of identification documents relating to the applicant and noting that it had information before it provided by an individual who purported to be a relative of the applicant and his wife and the second named applicant. The Tribunal’s correspondence noted that the information was a copy of the applicant’s birth certificate, marriage certificate and national identification card. The Tribunal attached copies of the documents for the applicant’s information, based on the comments made by the Court in remitting the matter.
In response to the s 424A letter, the applicant provided the following statement to the Tribunal, dated 28 March 2023 (in relevant part):
I am making this statement in response to the questions the Administrative Appeals Tribunal asked in a letter dated 27 February 2023.
The Tribunal said that they had information about our identity from someone who says they are a relative.
The Tribunal said that it has a copy of my Iranian birth certificate, national ID card and marriage certificate.
I want to say that these are in fact copies of authentic documents.
I am an Iranian citizen, as is my wife and son.
I am so deeply sorry for maintaining that we were undocumented Faili Kurds for so many years.
While I understand that we have maintained these untruths for so many years, I ask that the Tribunal show some mercy to my family and understand that we were fleeing a regime in Iran that was not possible for us to keep living under.
We fled because we feared for our lives and for the life of our child.
We suffered discrimination and persecution in Iran as Faili Kurds and for my wife as a woman, and this is why we left.
In 1388, my wife was caught by the Gashte-Ershad, the “morality” police. Her hair had come away from her veil and the Gashte-Ershad beat her with batons. We are grateful she was not killed, like Masha Amini, who was killed recently.
We had brought some documents when we left Iran. The rest we left in Iran in a bag with [Ms A]’s brother.
We were going to tell the Australian authorities what happened to [Ms A] and present our documents, but a few things happened that led to the untruths we told when we arrived.
The first thing that happened was that the smugglers took our bag with all our documents. We had nothing left. This was disastrous for us, and we panicked.
The other Iranians on the boat convinced us that we should say we were undocumented Faili Kurds and that this would secure our safety.
We were so desperately afraid. We made the decision to follow through with this untrue story.
We were granted a permanent protection visa.
We always felt uncomfortable with this story but did not try to correct this as we feared we would be sent back to Iran.
Our lives were turned into a nightmare when my wife’s nephew, [Mr B], came to stay with us after he separated from his wife towards the end of February in 2016.
[Mr B] stayed in my son’s room and my son slept in the spare room. We wanted [Mr B] to have comfort.
My son, [the second applicant], had been working and was saving for a car. He had around $7000 in a drawer.
When [the second applicant] checked his savings, he found only $50. He told me about this. We believe [Mr B] stole the money.
I tried to speak to [Mr B] about this calmly and he immediately became very aggressive and physically assaulted [Ms A]. He threatened to kill us.
….
We were granted 5-year intervention orders against [Mr B] and his brother [Mr C]. These expire in November this year.
[Mr B] threatened that he would write to the Department of Immigration and get them to cancel our visa and deport us.
What we did not know at that time was that [Mr B] had asked his father, [Ms A]’s brother, to give him all the documents he have left in Iran and [Ms A]’s brother did this, plus also gave photos of us in family photos.
We did not know what documents were sent to the Department. We only saw them a few months ago when they were sent to us from the Department.
We had never seen the documents forwarded to the Department before this time, only heard what they were, and we really did think that [Mr B] had paid someone to forge documents. It never occurred to us that [Ms A]’s brother would break trust and send these documents to [Mr B].
We were deeply shocked to see our original documents.
We understand why our visas were cancelled. We do not step away from the fact that we lied. But we ask for our visas to be reinstated, as we cannot return to Iran.
The applicant’s wife also provided a statutory declaration to the Tribunal, stating that the applicant’s statement set out an explanation of what had happened and why.
The applicant gave evidence to the Tribunal at hearing that he was born in Ilam and that his parents were also born in Ilam and were farmers. The applicant stated that he grew up a Shia Muslim and he now believes in God but is free of religion. The applicant stated that his grandparents were also born in Ilam. He claimed to be a Faili Kurd who was issued a birth certificate and national identification document by the Iranian authorities. He gave evidence that he had left Iran on a valid passport that had been legally obtained, with his correct name and photo, as did his wife and son. He gave evidence that he had not had any problems departing Iran.
The Tribunal asked the applicant about the evidence he had given at a previous Tribunal hearing, in which he claimed to be a stateless Faili Kurd. The Tribunal observed that this weighed in favour of the applicant’s visa remaining cancelled, on the basis that he had maintained over a prolonged period that he was stateless. The applicant stated in response that he had had to, because he lost his documents in [Country 1] and was told, given he had no documents, to say he was stateless. He stated that he had left because he had been politically active in Iran and that he fears returning because of this.
The Tribunal accepts from the statements provided by the applicant and his wife, and from the oral evidence of the applicants and witnesses at their combined hearing, that the applicant provided incorrect information in his protection application that he had been born in Baghdad, Iraq; that he was stateless; that he does not hold citizenship in any country; that he is seeking protection from returning to Iraq; and that he had left because he had been a disenfranchised and stateless person. Based on the evidence before the Tribunal (discussed further below), the Tribunal does not find that the applicant’s claimed fear of harm from the Basij was false or incorrect information.
The Tribunal finds that there was non-compliance with s101 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. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
The correct information
The Tribunal finds that the correct information is that the applicant is an Iranian citizen who was born in Ilam, and whose parents and grandparents were born in Iran. The correct information is that the applicant was not born in Iraq or expelled from Iraq. The Tribunal finds that the applicant had identification documents in Iran, including a birth certificate, national identification card and passport. The correct information is that the applicant left Iran on a genuine passport that was validly issued to him. The correct information is that the applicants were not stateless Faili Kurds who were disenfranchised and subject to discrimination.
The Tribunal weighs this factor in favour of cancelling the visa.
The content of the genuine document (if any)
The Tribunal finds that this factor is not relevant as the applicant did not provide any bogus documents to the Department. The Tribunal does not give this factor any weight.
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 applicant was granted protection through a Refugee Status Assessment decision made on 26 July 2010. In the decision, the assessor accepted the applicant was an undocumented Faili Kurd who had had no right to wage-earning employment, access to public health care or to own property, and whose everyday movements had been severely restricted. The assessor accepted the applicant was socially, politically and economically disenfranchised. The Tribunal finds that the decision to grant the applicants a visa was based wholly on the applicant’s claims to be stateless Faili Kurds.
The Tribunal weighs this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant claimed in his written statement that he and his family had lost their documents en route to Australia and that they had been persuaded by other Iranians to present themselves as stateless Faili Kurds to secure their safety. He claimed that they did not correct this at any stage because they feared being returned to Iran.
The Tribunal weighs this factor in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant told the Tribunal that he is living with his wife in [Suburb 1] and that the second named applicant is living in [Suburb 2] with his wife and [age] year old child who was born in Australia. They have other family members in Australia including nieces and nephews from both his side and his wife’s side. He has a mortgage over his home and runs a small [business] through which he also undertakes [work] such as [specified].
The applicant told the Tribunal that he has health issues including high blood pressure, diabetes, a problem with his thyroid and depression. He told the Tribunal that he is managed by his GP and sees a specialist for his blood pressure every six months. He has seen a counsellor in the past.
The second named applicant gave evidence to the Tribunal at the hearing that he arrived in Australia at [age] and is now [age]. He gave evidence that he commenced studying in Year [level] in Australia after one year in immigration detention and after completing English classes, and that he worked for eight years for a [company]. The second named applicant told the Tribunal that he set up his own [business] two years ago and that he has been actively working under this arrangement for the past six months. He gave evidence that his wife and child are financially dependent on him as his wife does not work, and that he also assists his parents financially on occasion. He described that he assists with the local Kurdish community by helping organise [sport] for young children but that his time with the community is limited due to his own commitments. He told the Tribunal that he had accessed counselling through a Mental Health Care Plan around five years ago following issues with extended family members and that he has no other medical issues. He told the Tribunal that his wife and child do not have any medical issues.
The second named applicant’s wife, [Mrs D], gave evidence to the Tribunal at the hearing that she met the second named applicant in 2017 and that they were married in 2019 and have a son who is now [age], who is an Australian citizen and whose birth they have not registered with the Iranian consulate. [Ms D] gave evidence that she had come to Australia in 2011 with her parents and had been recognised as a refugee due to her parents’ claims and has subsequently been granted Australian citizenship. [Ms D] gave evidence that her parents and younger brother are also in Australia. [Ms D] described the applicant and the applicant’s wife as supporting her by helping with her son three to four days per week. She described that, when she had been pregnant, the applicant’s wife had stayed for several weeks with her to help, returning only sporadically to the family home.
The Tribunal accepts the evidence given by the applicant and witnesses about the applicant’s current circumstances, and accepts that the applicant owns a home in Australia, and has immediate and extended family around him in Australia. The Tribunal finds that this weighs against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:
The applicant maintained his incorrect claim about being a stateless Faili Kurd in several forums, including in his previous evidence before this Tribunal (differently constituted). The applicant told the Tribunal at hearing that he apologises for this and feared for his life. He claimed that in [Country 1] he had lost his documents and had been told to say he was stateless because he didn’t have documents. He claimed to have feared returning to Iran because he is a political person.
The Tribunal finds that this factor weighs in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate states that no other instances of non-compliance are known to the Minister. The Tribunal accepts this as correct.
The Tribunal finds that this factor weighs against cancelling the visa.
The time that has elapsed since the non-compliance
The relevant non-compliance took place in 2010 during the conduct of a Refugee Status Assessment and some 13 years have elapsed since then.
The Tribunal finds that this factor weighs against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate states that no breaches of the law since the non-compliance are known. The Tribunal accepts this as correct.
The Tribunal finds that this weighs against cancelling the visa.
Any contribution made by the holder to the community
The Tribunal heard from a number of witnesses about the applicant’s current activities within the Kurdish community in Melbourne.
[Mr E] gave evidence to the Tribunal that he has known the applicant since 2010 through their local community. [Mr E] stated that he had established [Organisation 1] in 2017 and was elected its leader at the first conference. The association is a non-profit organisation registered through the Victorian Multicultural Council and is active on social media including [Social media 1], and through a Kurdish Program on [media outlet].
The applicant was elected as a committee member in 2017 and has been working as a [specified role] on the committee. [Mr E] described the applicant as very active with the organisation, as participating in demonstrations against the Iranian regime and supporting the Kurdish community, attending meetings, celebrations and demonstrations. Other activities the applicant is involved in include arranging celebrations each year. His [committee role] include [specified tasks].
[Mr E] gave evidence to the Tribunal that he knows the applicant is Kurdish because of his dialect. As to his understanding of why the applicant came to Australia, he stated that such things are not discussed and information is not given about these things. As to any risks to the applicant in Iran, [Mr E] stated that because the applicant is active politically, and has represented the Kurdish community, the Iranian regime is observing all websites and [social media]. Because the committee ‘publishes’ on [social media], he knows the regime listens to everything. He believes the applicant would be put in prison or sentenced to life or to death because he is Kurdish.
[Mr E] gave evidence that the second named applicant also participates in the organisation, as does the applicant’s wife, who participates in the women’s part of the association.
The Tribunal accessed the public [social media] page of [Organisation 1] and noted that the applicant’s face appears on numerous of the association’s posts, dating back a couple of years, and that an open letter to the [Public figure], prepared by the applicant, also appears on the association’s [social media] page.
[Mr F] gave evidence to the Tribunal that he met the applicant and his family in 2018 after arriving in Australia and needing to buy things for their new home. He gave evidence that he obtained a PhD from [University] in 2008, then returned to Iran before retuning to Australia in 2018 on a permanent resident visa. He told the Tribunal that the applicant and his family had assisted them in 2018, including giving them things for free, and that he had noticed that the applicant and his family were also trying to help other people in the community. [Mr F] told the Tribunal that he is from Iran and is of Turkish ethnicity, and knows that the applicant and his family are Kurdish because of their accent when they communicate with one another. He stated he also knows because he knows the applicant is active in the Kurdish community, because he has spent a lot of time with the family for the past five years. For example, the applicant was at his house during the pandemic and was actively participating in online meetings while there.
[Mr F] told the Tribunal that there are a lot of executions in Iran, he thinks 20 in the last month, because people are expressing their ideas. He gave evidence of having seen a speech given by the applicant several years earlier in [Suburb 3] Park, following which he claimed to have warned the applicant about facing the death penalty in Iran as a Kurdish person, because the government feels Kurds are trying to make their own country in that area. He described the applicant as facing significant risk in Iran because he has made a public speech. He described the second named applicant as also being active in the community, including organising gatherings for young people. He described the applicant’s wife supporting his own wife who is suffering from depression.
As noted above, the second named applicant’s wife [Ms D] gave evidence to the Tribunal at hearing. [Ms D] gave evidence that the applicant had organised rallies and signed letters for the Kurdish community and had taken part in Kurdish celebrations.
[Ms G] gave evidence to the Tribunal at hearing that she has known the applicant and his family since 2016 or 2017, when she was allocated as their interpreter at the Magistrates’ Court for intervention order proceedings the applicant had taken out against a nephew. [Ms G] told the Tribunal that the applicant and his family had told her that they are of Kurdish Faili background. She had assisted them throughout their cancellation proceedings and became aware that the applicant was very involved in the politics through his community. She described that she is of the view they are Kurdish Faili rather than Kurdish because of their dialect and because they described being from Ilam, which is a Kurdish area. [Ms G] described that she has known the applicant and his family on both a personal and professional level and knows the trauma they have been going through since their visas were cancelled.
[Ms G] told the Tribunal that she believes the second named applicant would face compulsory military service if returned to Iran and believes the applicant, due to his extensive political involvement, would face detention from the Islamic Revolutionary Guards.
The Tribunal accepts the evidence given by the witnesses on behalf of the applicant and accepts from this evidence that the applicant has ties to the Iranian community in Australia and is advocating on behalf of the Kurdish community.
The Tribunal considers this factor weighs against cancellation of the visa.
Other factors to be considered
The above factors 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:
·Whether there would be consequential cancellations under s 140.
·If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal accepts that, if the applicant’s visa remains cancelled, the second named applicant’s visa remains cancelled by operation of s 140.
The Tribunal accepts that the second named applicant came to Australia as a [age]-year-old and that he has spent his teenage and early adult years in Australia. The Tribunal accepts that the second named applicant is married to an Australian citizen and that they have a child who was born in Australia and who is also an Australian citizen. [Ms D] spoke to the Tribunal of the bond between the second named applicant and his son, and of the level of contact the second named applicant has with his son even while at work. The Tribunal accepts that [Ms D] came to Australia as an [age]-year-old and has been recognised as a refugee in relation to her parents’ claims for protection and that, because of this, she would be unable to return to Iran with the second named applicant. The Tribunal finds that the best interests of the child are to remain in Australia with both parents and with his grandparents who are actively involved in his care. The Tribunal finds that the best interests of the child are that the applicant’s visa not be cancelled. The Tribunal finds that this factor weighs heavily against cancellation of the visa.
The applicant is prevented from making a further application for a protection visa without the Minister intervening because of the operation of s 46A, which prevents ‘unauthorised maritime arrivals’ from making valid visa applications onshore unless they hold or have held a safe haven enterprise visa (SHEV) and satisfied prescribed employment, educational or social security requirements. The applicant is subject to s 46A as he has never held a SHEV.
The applicant’s representative submitted to the Tribunal that the applicant would be otherwise granted protection on the basis of his political activities within the Kurdish community. The applicant, second named applicant and the applicant’s wife all gave evidence to the Tribunal separately that there had been an incident with the Basij prior to their departure from Iran. There was consistent evidence given by all three that the incident had occurred due to the applicant’s wife’s headscarf having slipped and that, following the Basij stopping them because of this, the applicant had been detained and his wife beaten, resulting in her having to attend the hospital for X-rays due to back and neck pain. The Tribunal is prepared to accept that this event occurred and led to the applicant making a decision to leave Iran.
The applicant claimed at the hearing that he had been politically active in Iran. When asked in what way he had been political, he stated it was through ‘[social media] and those kind of things, nothing further than that’. The Tribunal found the applicant’s evidence about his claimed political activities in Iran to be lacking in detail. Given this, and given the applicant’s ability to leave Iran on a valid passport in his own name without the authorities allowing him to leave, the Tribunal does not accept the applicant was politically active in Iran in any way which brought him to the attention of the Iranian authorities.
The Tribunal accepts the applicant has been politically active within the Kurdish community in Melbourne since 2014. Having regard to the evidence of the witnesses and the evidence given by the applicant, and the certificates and photos provided by the applicant to the Tribunal, the Tribunal accepts that the applicant has undertaken a range of activities with the Kurdish community including speaking in public on behalf of [Organisation 1]. The Tribunal accepts that the applicant appears in several posts on the association’s [Social media 1] page, and that a letter he wrote to the [Public figure] has also appeared on the [Social media 1] page.
DFAT states that ethnicity remains a sensitive political topic in Iran and official and societal discrimination against minorities does occur. Ethnic minorities report political and socio-economic discrimination, particularly in relation to their ability to access economic and business licences, university admissions, job opportunities, permission to publish books in their languages, and housing and land rights. Ethnic minorities in pre-trial detention are subjected to more severe physical punishment or mistreatment than other prisoners, and account for a disproportionate number of political prisoners and executions on national security-related charges.[1]
[1] DFAT Country Information Report Iran, 14 April 2020 at 3.3 – 3.4.
DFAT assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination and may face denial of access to employment and housing, although they are unlikely to face violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved, or perceived to be involved, in activism is higher. This includes those advocating for greater political and cultural rights or speaking out against perceived violations.[2]
[2] DFAT Country Information Report Iran, 14 April 2020 at 3.7.
Kurds make up 10 per cent of the population of Iran.[3] DFAT describes that the authorities are highly sensitive to organised political activity by the Kurds. The Special Rapporteur on the situation of human rights in Iran in 2019 reported that Kurdish political prisoners charged with national security offences represent almost half of the political prisoners in Iran and constitute a disproportionately high number of those who receive the death penalty and are executed. International sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association. While Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, Kurds who are politically active are likely to attract adverse attention from the authorities. Those who advocate for greater rights, autonomy or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[4]
[3] DFAT Country Information Report Iran, 14 April 2020 at 2.4.
[4] DFAT Country Information Report Iran, 14 April 2020, at 3.20 – 3.22.
Having regard to the length and range of activities the applicant has been involved in with the local Kurdish community in Australia, the Tribunal is prepared to accept that he would be politically active upon return to Iran. The Tribunal finds that, if he is removed from Australia to Iran and continues his political activities for the Kurdish community, he faces adverse attention from the authorities including harassment, monitoring, imprisonment and mistreatment. The Tribunal finds that removal of the applicant to Iran would be in breach of Australia’s non-refoulement obligations and that this factor weighs heavily against cancellation.

Further, as the applicant arrived prior to March 2018, the Memorandum of Understanding on Consular Matters does not apply and the applicant therefore is unable to be returned involuntarily to Iran.[5] The Tribunal accepts that the applicant would not return voluntarily to Iran. He therefore faces indefinite immigration detention. The Tribunal accepts that a significant body of literature exists about the mental health impacts of prolonged immigration detention,[6] and that the applicant’s previous mental health issues may be enlivened or exacerbated by such detention. The Tribunal finds that this factor weighs heavily against cancellation.
Exercise of discretion
[5] DFAT County Information Report Iran, 14 April 2020, at 5.27.
[6] For example, literature review undertaken on 26 studies in: M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382. The review indicated that the most common mental health conditions reported included anxiety, depression and post-traumatic stress disorder and that these were reported both during and following detention. Detention duration was found to be linked to increased severity of mental health symptoms, as was greater trauma exposure prior to detention.
The Tribunal notes that, while it is required to have regard to each of the reg 2.41 factors, not all of them will be central or fundamental to every case. The weight to be given to any particular factor is a matter for the Tribunal and will vary from case to case (MIAC v Khadgi (2010) 274 ALR438 at [68]).
In this case, the Tribunal finds that the applicant has maintained claims to be a stateless Faili Kurd through a refugee status assessment, previous Tribunal proceedings and a court appeal process. The Tribunal has accepted the applicant left Iran after one incident with the Basij but has not accepted that the applicant was previously politically active in Iran or that he was of adverse interest to the authorities at the time he left. The Tribunal finds that if the applicant’s correct information had been known, he would not have been granted a protection visa. These factors weigh in favour of cancellation.
However, in weighing all of the relevant factors, the Tribunal places significant weight on the 13 year period the applicant has been residing in Australia and the ties he has created with his local community in this time. These ties include links to the local Kurdish community, to immediate and extended family and in particular to a grandchild whom the applicant sees several times a week and plays an active and important role in the child’s life. The Tribunal also places significant weight on the prolonged immigration detention the applicant would face if the visa remains cancelled and the impact on his mental health and on his family unit. The Tribunal finds that these factors weigh overall against cancellation. For this reason, the Tribunal has decided that, having regard to all of the relevant circumstances as set out above, the applicant’s visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Tamara Hamilton-Noy
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.

[2023] AATA 2581

20 June 2023

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