2105554 (Refugee)

2105554 (Refugee) [2023] AATA 2580 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Peggy Paghona Kerdo
CASE NUMBER:  2105554
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 1:12pm
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 husband’s separate review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A, 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 in their protection application about their citizenship. 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 her husband [Mr A] and 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 20 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.
On 25 June 2020, the Federal Circuit Court dismissed an appeal by the applicants.
On 30 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 her husband.
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 applicant’s protection application submitted on 17 June 2010. The delegate considered that information provided by the applicant was incorrect as the Department had received evidence relating to the applicant, including her national identity card, her birth certificate and her marriage certificate. The delegate found that the applicant’s information was incorrect in the following respects:
·In question 19 of the application, when asked about her citizenship at birth, the applicant stated she was stateless. The delegate considered this information was incorrect because they found the applicant was an Iranian citizen who had been issued with a birth certificate and marriage certificate, and that she was not stateless as claimed.
·In question 21 of the application, when asked about whether she holds any other citizenship or is a national of another country, the applicant stated no. The delegate considered this information was incorrect because they found that the applicant was an Iranian citizen and was not stateless as claimed.
·In question 42 of the application, when asked about why she had left Iran, the applicant stated that she did not have any citizenship, that she had tried but each time she had been refused, that she had been treated badly by a hospital in Iran and that the hospital would not keep her after an operation because of her ethnicity and the risk of the Basij finding out she was at the hospital. The delegate considered this information was incorrect because they found that the applicant was an Iranian citizen who had the rights and protections afforded to an Iranian citizen and was not stateless as claimed.
·In question 43 of the application, when asked what she fears may happen if she returns, the applicant stated that the Basij will harm or mistreat and kill her because she is an undocumented stateless Faili Kurd. The delegate considered this information was incorrect because they found that the applicant was an Iranian citizen with the rights and protections afforded an Iranian citizen, and was not stateless as claimed.
·In question 44 of the application, when asked who she thinks may harm or mistreat her if she returns, the applicant stated that the Basij in Iran will harm or mistreat and kill her. The delegate considered this information was incorrect because they found that the applicant was an Iranian citizen with the rights and protections afforded an Iranian citizen, and was not stateless as claimed.
·In question 45 of the application, when asked why she thought this would happen to her if she returns, the applicant stated that the Basij in Iran will harm or mistreat her and kill her because she is an undocumented stateless person of Kurdish Faili ethnicity. The delegate considered this information was incorrect because they found that the applicant is an Iranian citizen and was not stateless as claimed.
As noted above, this matter was remitted to this Tribunal on the basis that the information relied upon by the Tribunal (previously and differently constituted) 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 the 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 basis on which the matter was remitted by the Federal Court, prior to the hearing, the Tribunal wrote to the applicants under s 424A, by letter dated 27 February 2023. The Tribunal’s letter enclosed documents that had been relied upon by the previous Tribunal and noted that the documents state that the applicant and her husband are Iranian nationals and may lead the Tribunal to find that the applicant is an Iranian national and is not stateless as claimed.
Prior to the hearing, the applicant provided a statement to the Tribunal, stating that her husband’s statement (also provided to the Tribunal) set out an explanation of what happened and why. The applicant’s husband provided a statement as follows:
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 Mahsa Amini, who was killed recently.
We had brought some documents when we left Iran. The rest we left in Iran in a bag with [the applicant]’s brother.
We were going to tell the Australian authorities what happened to [the applicant] 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 [the applicant]. 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, [the applicant]’s brother, to give him all the documents he have left in Iran and [the applicant]’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] ad paid someone to forge documents. It never occurred to us that [the applicant]’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 told the Tribunal at the hearing that her father was born in Ilam and was an Iranian citizen and that her mother was also an Iranian citizen, but she does not know where her mother was born. She gave evidence that she has [sisters] and [brothers] and that she and her siblings are all Iranian citizens. She stated that she was born in Ilam and moved to Tehran after being married at [age] years of age and that she worked while in Iran in [occupation].
The applicant stated that she is of Kurdish Faili ethnicity and is distinguishable from the Kurdish population in Iran due to her dialect. She told the Tribunal that in Iran she had a shenasnameh and a national identification card. She stated that the second named applicant was born in Tehran and that his birth was registered. She told the Tribunal that she left Iran through Tehran airport on a valid passport in her own name and that she did not have any difficulties leaving through the airport.
The Tribunal accepted from the statutory declaration provided by the applicant and the evidence she gave at the hearing that the applicant provided incorrect information in her protection application when she claimed to be stateless, when she stated that she did not hold citizenship or have nationality in another country, when she claimed to have left Iran because she did not have any citizenship and had been unable to access medical help, and in claiming that she fears returning because she is an undocumented stateless Faili Kurd. Based on the applicant’s claimed experiences with the Basij (discussed further below), the Tribunal does not find the applicant provided incorrect information about her fear of harm from the Basij generally.
The Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. 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 and was not a stateless Faili Kurd while living in Iran. The Tribunal finds that the correct information is that the applicant’s parents were both Iranian citizens and that the applicant held documents in Iran including a birth certificate and national identification card. The Tribunal finds that the correct information is that the applicant left Iran legally on her own passport and that she did not have difficulties accessing medical care and was not vulnerable to mistreatment by the Basij due to being undocumented.
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 applicant a visa was based wholly on her claims to be a stateless Faili Kurd.

The Tribunal finds that this factor weighs in favour of cancellation.
The circumstances in which the non-compliance occurred
The applicant claims that the documents she travelled with had been stolen by the smuggler and that on the boat people had told them to say they were undocumented Faili Kurds and they did this because they were so anxious. They then felt that they could not tell the truth and they were terrified of returning to Iran.
The Tribunal weighs this factor in favour of cancellation.
The present circumstances of the visa holder
The applicant told the Tribunal that she has attended English classes in Australia and that she was previously receiving the disability support pension due to her neck and back problems, but this was cancelled when her visa was cancelled. Her husband was receiving carer allowance for the care he was providing to her, which included help around the house following an operation on her hand. She also had a torn tendon in her shoulder which required physiotherapy and exercise. The ‘channels’ in her hand are blocked again, on both hands, and she requires further operations for these. She is under the care of a specialist for her shoulder and hand. She also suffers from thyroid problems, high blood pressure, diabetes, a stomach condition and anxiety and depression. She is taking medication for pain, thyroid, depression, blood pressure and diabetes and her medications are managed by her GP. She previously saw a psychologist between 2016 and 2020. The applicant stated that two years ago she and her husband started a [business] and have been working together in the business, and that they have a mortgage on their home.
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, [Ms D], gave evidence to the Tribunal at the hearing that she met the second named applicant in [year] and that they were married in [year] and have a son who is now [number] months of 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 [Year] 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 accepted the evidence given by and on behalf of the applicant about her current circumstances. The Tribunal accepted that the applicant suffers from a range of health issues for which she is medicated and attending a GP and a specialist, that she owns a home in Australia and that she has immediate and extended family in Australia. The Tribunal finds that this factor weighs against cancellation.
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 has maintained her incorrect claim about being a stateless Faili Kurd in a series of proceedings, including before this Tribunal (differently constituted) and before the courts on review. The Tribunal finds that this factor weighs in favour of cancellation.
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 at the Tribunal hearing.
[Mr E] gave evidence that he is the leader of [Organisation 1] which was established in [year] and which is a non-profit organisation registered through the Victorian Multicultural Council. [Mr E] gave evidence that the association is active on social media, including on [social media] and through a Kurdish Program on [media outlet]. [Mr E] told the Tribunal that the applicant is part of the women’s arm of the association and attends meetings and demonstrations for the association. [Mr E] described that the second named applicant as also participating in activities of the association and the applicant’s husband as holding a [role] and having been a committee member since [year].
[Mr F] gave evidence to the Tribunal that he met the applicant and her 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 [year], then returned to Iran before retuning to Australia in 2018 on a permanent resident visa. He told the Tribunal that the applicant and her family had assisted them in 2018, including giving them things for free, and that he had noticed that the applicant and her 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 her family are Kurdish because of their accent when they communicate with one another and because he knows they are active in the Kurdish community. [Mr F] described the applicant and her family as helping people in the community. He described the second named applicant as also being active in the community, including organising gatherings for young people, and the applicant having had a role supporting his own wife who is suffering from depression.
[Ms G] gave evidence to the Tribunal at hearing that she has known the applicant and her family since [year] or [year], when she was allocated as their interpreter at the Magistrates’ Court for intervention order proceedings that had been taken out against a nephew. [Ms G] told the Tribunal that the applicant and her family had told her that they are of Kurdish Faili background. 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 her 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 is part of the same social networking group of Iranians and Faili Kurds as the applicant and the applicant is active in this group. [Ms G] stated that she is not very active in the group but is aware that the applicant attends rallies and other events with the group. [Ms G] told the Tribunal that she believes the second named applicant would face compulsory military service if returned to Iran.
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 active within the Kurdish community in Melbourne.
The Tribunal considers this factor weighs against cancellation of the visa.
Additional factors
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.
·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.
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 notes that, in the delegate decision for the applicant, the delegate did not have the second named applicant listed as a party in the decision. Rather, the second named applicant was dealt with by the delegate in the applicant’s husband’s separate decision).
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 with both of his parents in Australia and to have contact with his grandparents who are actively involved in his care. The Tribunal finds that the best interests of the child are for the applicant’s visa to 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 she 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 her political activities within the Kurdish community. The applicant, second named applicant and the applicant’s husband 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 headscarf having slipped and that, following the Basij stopping them because of this, the applicant’s husband had been detained and the applicant had been 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 and her family making a decision to leave Iran.
The applicant’s husband 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 husband’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 her own name without the authorities interfering with her travel, the Tribunal does not accept the applicant’s husband was politically active in Iran in any way which brought him to the attention of the Iranian authorities. The Tribunal does not accept that the applicant was of any interest to the authorities at the time she left Iran, because of her husband’s political activities or for any other reason.
The Tribunal accepts the applicant has been politically active within the Kurdish community in Melbourne over a number of years. 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 in Melbourne.
DFAT states that ethnicity remains a sensitive political topic in Iran and that 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 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 and the level of her husband’s political activities since arriving in Australia, the Tribunal is prepared to accept that the applicant would be politically active upon her return to Iran. The Tribunal finds that, if she is removed from Australia to Iran and continues her political activities for the Kurdish community, she 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 is unable to be returned involuntarily to Iran.[5] The Tribunal accepts that the applicant would not return voluntarily to Iran. She 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]. 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 court appeal process. The Tribunal has accepted the applicant left Iran after one incident with the Basij but has not accepted that the applicant or her family were previously politically active in Iran or that she was of adverse interest to the authorities at the time she left Iran. The Tribunal finds that if the applicant’s correct information had been known, she 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 she has created with her local community in this time. The Tribunal accepts that the applicant has immediate and extended family in Australia and has a [age]-year-old grandchild whose life she is very active in. The Tribunal also places significant weight on the prolonged immigration detention the applicant would face if the visa is cancelled. 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 2580

20 June 2023

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