2107226 (Refugee)

2107226 (Refugee) [2022] AATA 1278 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2107226
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:19 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 19 April 2022 at 1:59pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – incorrect answers provided in protection visa application – not undocumented stateless Faili Kurd but documented Iranian Faili Kurdish citizen – Iranian documentation provided to department by family members – incorrect answers initially maintained then non-compliance conceded – stateless claim made on advice by people smugglers – son’s adverse interest to Iranian authorities and applicant detained and beaten – visa would likely have been granted – physical and mental health – length of residence and limited support in home country – close relationship with adult children, whose protection visas were not cancelled, and young Australian citizen grandchild – consideration of non-refoulement now made at time of potential removal – prospect of indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A(1), 101(b), (2), 107, 109, 197C(3), 197D(2), 375A, 376, 438
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa because they concluded the applicant had provided incorrect answers in certain respects in relation to his protection visa application in breach of s 101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a [Age 1]-year-old married man from Tehran, Iran. According to Departmental records, [in] December 2011 he [arrived] as an irregular maritime arrival having left Iran earlier (via [country]). He applied for a protection visa on 26 September 2012 (as a delegate, in respect of his Protection Obligations Determination (POD) application, was satisfied he engaged Australia’s protection obligations earlier), which was granted on 26 November 2012, based on his alleged status as an undocumented stateless Faili Kurd, among other things. That visa was cancelled on 20 May 2021, and that decision is the subject of this review.
The applicant came to Australia with his wife and three children, who were granted protection visas separately. His wife’s protection visa was cancelled at the same time as the applicant’s visa was cancelled. She has sought a review of that decision with the Tribunal.[1] The applicant’s children received correspondence from the Department indicating they were considered cancelling their visas; however, the delegate in their cases decided not to do so, after considering their circumstances.[2]
[1] AAT No. 2107227.
[2] The representative provided copies of the decision notifications not to cancel the applicant’s children’s visas to the Tribunal on review. At hearing he advised that there were no decision records in their cases.
The applicant and his wife appeared before the Tribunal on 5 April 2022 where they gave evidence and presented arguments about the issues in their respective cases. The Tribunal also received oral evidence from their son, [Mr A], and their daughter, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificates
The Tribunal notes there is a certificate dated 16 June 2021 issued under s 375A of the Act, and another certificate issued under s 376 of the Act of the same date on the Department’s file with respect to the cancellation decision. These sections permit the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. However, given they relate to a cancellation of a protection visa, it appears the certificates have been issued under the wrong provisions: that is, under ss 375A and 376, instead of s 438 of the Act. As such the Tribunal finds they are invalid.
The information covered by the certificates relates, broadly, to internal Departmental correspondence and/or assessments about the applicant’s (and at times his wife and other family members or relatives’) claimed identity and nationality. Much of the relevant information has already been disclosed to the applicant by the Department, for example in the Department’s notice advising his visa may be cancelled. In his response to that notice, the applicant acknowledged that he is an Iranian citizen (as is his wife), discussed in more detail below.
The Tribunal considers the remaining information is either neutral or positive to the applicant’s case; for example, the report by an Independent Assessor set out in an Independent Protection Assessment (IPA) dated 4 September 2012, which found the applicant (and his wife and children) were owed protection (and why). This is discussed further below, when considering the discretionary factors taken into account in the applicant’s case.
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.
On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 31 March 2021, which advised the applicant that his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) of the Act. He was advised to respond in writing, which he did in the form of a statutory declaration dated 26 April 2021. Also provided was a written submission from his representative dated 27 April 2021 and supporting documents.
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 in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application in the following respects.
Specifically, the notice recounts that on 15 December 2011 the applicant requested a protection obligations evaluation (POE) claiming to be a Faili Kurd born in Iraq who had been living in Iran as undocumented person since 1981. In support of the POE the applicant submitted a statement of claims dated 9 February 2012 in which he details the problems he experienced in Iran without identity documents and being stateless. On 4 September 2012 a Departmental officer found the applicant was a refugee based on his claims to have been an undocumented, stateless Faili Kurd in Iran, the Minister lifted the s 46A(1) bar and the applicant was allowed to apply for protection, which he did on 26 September 2012. In his protection visa application form, in answer to a question about his citizenship (question 20), the applicant said he was stateless, and in answer to question 24 he stated that in 1981 his family was expelled from Iraq, and they were forced to live in Iran. The NOICC records further that based in part on this information the applicant was granted a protection visa on 26 November 2012.
Additionally, the NOICC indicates that the applicant had provided details about his family composition: in a ‘Personal Particulars’ form (Form 80); at his arrival interview; and at an identity interview with the delegate on 10 September 2019.
The NOICC goes on to record that after the applicant was granted a protection visa, the Department received an Iranian identity certificate in the name of ‘[Ms C]’ (date of birth: [Date 1]), which the delegate considered belonged to his sister, [Ms C spelling variant]. The delegate reached this conclusion because:
·The certificate provides that the holder has a father named ‘[Mr D]’, which matches information provided by the applicant about his father.
·The certificate provides that the holder has a mother named ‘[Ms E]’, which matches information provided by the applicant about his mother.
·The certificate was provided by a person named [Mr F] (date of birth: [Date 2]) who had previously advised the Department: that they had a maternal uncle called ‘[Given name]’, which matches the applicant’s name; that his mother’s name is ‘[Ms C spelling variant]’ which matches the applicant’s sister’s name; and his maternal grandmother’s name is ‘[Ms E]’ which matches the applicant’s mother’s name.
Department records confirm [Mr F] lived at the applicant’s address in [suburb], and the NOICC refers to information[3] before the Department that indicates [Mr F] is a relative of the applicant’s family, leading the delegate to consider the applicant is [Mr F]’s maternal uncle. At his identity interview in September 2019, the applicant denied he was related to [Mr F], claiming he was only his housemate.
[3] Including information contained in [Mr F]’s Iranian birth certificate, his mother’s ([Ms C spelling variant]’s) Iranian identity certificate, and his father’s ([Mr G]) Iranian identity certificate.
It is also stated in the NOICC that the Department had information that indicates the applicant’s wife is an Iranian citizen, apparently acquired at birth through her Iranian citizen father. Furthermore, Departmental records show she voluntarily returned to Iran as an Iranian passport holder in 2014.
As citizenship is passed through the paternal line under Iranian law, the delegate formed the view that as the applicant’s father is an Iranian citizen, so was he; that is, he was not stateless as claimed at the protection visa stage.
Response to the NOICC
In the statutory declaration dated 26 April 2021 provided in response to the NOICC, the applicant acknowledges he provided incorrect information at the protection visa application stage about being undocumented and stateless, claiming this was due to the influence of people smugglers who encouraged him to do so to increase his chance of success in obtaining protection. In his response the applicant confirmed the following:
·He was born in Iraq.
·He is an Iranian citizen.
·He is a documented Faili Kurd.
·[Ms C], also spelt [Ms C spelling variant], is his sister.
·[Mr F] is his sister’s son: that is his nephew.
·He wrongly denied any relation to [Mr F] at his identity interview in 2019 after [Mr F] asked him to deny their familial relationship to protect them both from facing serious consequences.
·His son [Mr A] left Iran using a forged passport.
In response to the NOICC the applicant also provided a report from his General Practitioner (GP), [Dr H] dated 17 April 2021, and a letter from a psychologist, [Dr I], dated 17 May 2016.
On 20 May 2021 the delegate decided to cancel the applicant’s visa. In the decision record the delegate noted the matters set out in the s 107 notice and concluded the applicant did not comply with s 101(b) of the Act. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, including considering the applicant’s submissions about such matters. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
Review of the cancellation decision
On review the representative provided to the Tribunal a comprehensive submission dated 8 September 2021, which sets out the applicant’s relevant background, immigration history and current circumstances. The focus of the submission is on the discretionary factors with respect to cancellation given the applicant conceded he had provided incorrect information in certain respects in his protection visa application, specifically, about being undocumented and stateless. These submissions are considered, where relevant, below.
The representative also submitted to the Tribunal a statutory declaration from the applicant’s son, [Mr A], whom he lives with in Australia, and his daughter, [Ms B], who also resides in Melbourne (separately, with her husband and son), both dated 21 September 2021. Several other supporting documents were provided, including from the applicant’s treating doctor and psychologist in the past, referenced, where relevant, below.
At hearing the applicant acknowledged he provided incorrect information at the protection visa application stage in claiming he (and his wife) were stateless and undocumented, due to advice from the people smugglers. He maintained this falsehood at the identity interview in September 2019, because he was scared and also because his brother-in-law had just died and his sister was experiencing a lot of problems and he was not able to make the right decision.
He said they left Iran in 2011 mainly because his son, [Mr A], had been of adverse interest to the Iranian authorities, as indicated at the protection visa stage, which was true. However, they added the claim to be stateless, which was not true. He apologised, indicating his remorse.
Based on this evidence, the Tribunal is satisfied the applicant is an Iranian citizen and was an Iranian citizen at the time he applied for protection (as is and was his wife). It follows that the Tribunal is satisfied he provided incorrect information when claiming to be stateless in answer to question 20 in the protection visa application form, and stating his family were expelled from Iraq and were forced to live in Iran in 1981 in answer to question 24 about how, when and why he became stateless, as particularised in the NOICC.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice regarding his claim to have been stateless and undocumented (and related matters).
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 Migration Regulations 1994 (Cth) (the Regulations), as follows.
The correct information: the applicant is a documented national of Iran. His claims that he was undocumented and stateless and had experienced problems in the past in Iran as a result (specifically) were not true. The Tribunal gives this factor considerable weight in favour of cancelling the visa.
The content of the genuine document (if any): this prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: in response to the NOICC the representative submitted that being stateless was part of the applicant’s and his wife’s claims but the main claim put forward at the time related to the incident where the applicant was harmed by the Iranian authorities looking for their son. The representative agreed that the claim of being stateless may have been part of the reason for the decision maker to be satisfied the applicant is a refugee, however, in the absence of the decision record[4], it is hard to say what weight this claim was given overall in the protection visa assessment.
[4] The Tribunal notes the IPA decision record was covered by a non-disclosure certificate: this may explain why the representative was unable to access the decision record.
In his submission to the Tribunal, the representative states that the applicant was tortured as a result of the conflict between the Iranian authorities and [Mr A], which is the event that led to them fleeing Iran. He submits that the stronger claims of the applicant and his family seem to be that they belong to the minority Faili Kurd ethnicity and that the applicant was harmed by the authorities. As such, he contends that it is likely the applicant (and his wife) would have still been granted a protection visa based on such claims, without putting forward the stateless claim.
As noted, at hearing the applicant (and his wife) indicated the main reason they left Iran in 2011 was because their son, [Mr A] had had a fight with local Basij members, upset at him for not participating in their school activities. The fight became physical one day; [Mr A] fled and shortly thereafter Basij members came to their family home looking for him. They then detained the applicant and assaulted him, in a bid for him to give up his son. After he was released the applicant engaged a people smuggler so he could leave Iran along with the rest of the family. They all departed on their own passports except for [Mr A], who had a fake passport, organised by the people smuggler. Their claim to be undocumented and stateless was added to their profile at the protection visa stage, based on advice by people smugglers, as noted earlier.
The Tribunal notes the applicant’s claims related to problems [Mr A] and he experienced at the hands of the Basij in Iran were made at the protection visa stage (and at the IPA Office interview as indicated in the IPA dated 4 September 2012 on the Departmental file). Accordingly, it accepts his claims in this regard and accepts that his fears related to what may have happened to [Mr A] led to their decision to leave Iran in 2011, and claim protection in Australia.
The Departmental file in relation to the applicant’s cancellation contains a copy of the IPA dated 4 September 2012 in respect of the applicant, his wife and their children. In it the assessor found all five applicants met the complementary protection criterion in s 36(2)(aa), satisfied there were substantial grounds for believing each one faced a real risk of significant harm if returned, due to the problems the applicant and his son had experienced at the hands of the Basij in Iran. The assessor noted in the report that whilst accepting the applicant (and the other family members) were undocumented and stateless (Faili Kurds), he was not satisfied any problems or discrimination they may experience as a result on return to Iran amounted to persecution, including in the form of a denial of capacity to subsist. He also rejected the then submission that they would face a real chance of persecution in Iran as returnees and failed asylum seekers.

Given this finding by the IPA assessor, the Tribunal considers it likely the applicant would have been granted protection at that time even if the correct information that he was documented and an Iranian citizen was known. It finds the decision to grant him the visa was not based wholly or in part on the incorrect information. Accordingly, it gives this factor considerable weight towards not cancelling the visa.
The circumstances in which the non-compliance occurred: the incorrect information was provided by the applicant in respect of his POE request (which included a statement of claims dated 9 February 2012) and subsequent protection visa application made on 26 September 2012. The applicant claims he provided the incorrect information, based on advice from people smugglers, to enhance his chances of being successful in gaining protection in Australia. Although his claims to be undocumented and stateless were untrue, he was scared to remain in Iran – mainly in relation to the Iranian authorities’ interest in his son – and scared of returning. As noted, he indicated at hearing that he was remorseful (as did his wife).
At hearing the applicant’s daughter, [Ms B], who was [Age 2] (and the oldest of the applicant’s children) when she and her family arrived in Australia, said her parents saved her and her brother (and sister) by leaving Iran when they did; it was not an easy decision or without risk, particularly coming by boat; and they listened to the smugglers to protect their children. She said they are Faili Kurds but the smugglers pushed them to say they were undocumented.
In his written submission to the Tribunal, the representative argues that the applicant’s (and his family’s) vulnerability and fear of being returned to Iran at the time they lodged the protection visa application is a significant factor that should be considered.
The Tribunal accepts that: the applicant and his wife are remorseful; they left Iran out of fear and came to Australia by boat; a lot was at stake; and they were fearful about having to return to Iran. Nonetheless, the applicant deliberately provided incorrect information to the Department about his nationality (and his wife) and related matters. However, the Tribunal notes for reasons above they would likely have been granted protection even if the correct information had been known.
The present circumstances of the visa holder: the applicant has been resident in Australia for over 10 years, having arrived here with his wife and children in December 2011. At hearing he confirmed that he lives with his wife and son, [Mr A], in a house [Mr A] owns in Melbourne. [Mr A] – who works as [an Occupation 1] – helps financially support the applicant and his wife, who received Centrelink benefits up until the visa cancellation. Their daughter, [Ms B], also lives in Melbourne with her husband and [Age 3]-year-old [child]. The applicant and his wife look after their grand[child] two days a week when [Ms B] works (as [an Occupation 2]). [Ms B] is expecting her second [child]. The applicant’s other daughter currently lives in Brisbane, studying to be [an Occupation 3]. In terms of other relatives in Australia, the applicant’s wife’s brother lives in Melbourne, with his wife and three daughters, to whom they are reasonably close. The applicant told the Tribunal that his brother and sister and their respective families live in Tehran, in Iran.
The applicant experiences several chronic and ongoing health problems, as set out in a letter provided to the Tribunal from his GP dated 26 July 2021. In it the GP states he has treated the applicant since 22 December 2016, and lists his various health problems and medications. At hearing the applicant said in addition to diabetes and high blood pressure, he has high cholesterol, asthma, joint problems, and an unidentified problem with his blood requiring further tests. He is also waitlisted for surgery on a [torn tendon]. He has struggled to obtain medicines for his various ailments after the visa cancellation and removal of his health care card, noting without the subsidy the costs are prohibitive.
The applicant said he has also experienced mental health problems in the past, exacerbated by his health problems and circumstances in Iran. He has seen a psychiatrist in the past, evidenced by a letter from [Dr J], consultant psychiatrist to his GP dated 19 August 2015. No contemporaneous evidence of his mental health status has been provided to the Tribunal. At hearing the applicant said his mental health has deteriorated since around 2019 and worsened around the time of his visa cancellation.
Further, evidence has been provided to the Tribunal with respect to the applicant’s wife’s cancellation matter showing the applicant’s wife’s history and current presentation of, at times, serious mental health issues, including depression with psychotic features.
In their written and oral evidence to the Tribunal, [Mr A] and [Ms B] indicated their concern for their parent’s health and safety if they had to return to Iran, separated from their children (and grandchildren) here, given: their physical and mental health issues, which she and her brother help manage; how close they are as a family; and the length of time they have resided in Australia and the limited support available in Iran.
The Tribunal accepts the applicant’s evidence about his and his family’s present circumstances, noting the significant length of time he has spent in Australia, his co-dependency with his children here, his complex and chronic health issues and challenges, and his wife’s severe mental health issues. The Tribunal places considerable weight on these factors in favour of not cancelling the applicant’s 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: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.
In response to the NOICC, the applicant admitted he provided incorrect information about being stateless at the protection visa stage, as contended in the notice, and the Tribunal is satisfied that the applicant responded to the NOICC without making any incorrect statement. This factor weighs in favour of the visa not being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.
The time that has elapsed since the non-compliance: the relevant non-compliance took place when the applicant applied for the protection visa on 26 September 2012, which is almost 10 years ago. This is a significant period of time and the Tribunal places considerable weight on this factor in favour of not cancelling the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.
Any contribution made by the holder to the community: in response to the NOICC, the representative submits the applicant has contributed to the Australian community by raising his children who currently work or study here. In his submission to the Tribunal, the representative explains that as the applicant (and his wife) suffer from multiple mental and medical issues they have not been able to work in Australia. Nonetheless, he reiterates that they have contributed to the community by raising and supporting their children. The Tribunal accepts that is the case and gives this some, albeit limited weight toward not cancelling the visa.
Other factors: Departmental guidelines
While these factors in reg 2.41 of the Regulations must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to government policy,[5] as follows. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be taken into account before making a decision to cancel a visa. The relevant policy is set out in the Department’s Procedural Instruction ‘General visa cancellation powers s 109, s 116, s 128, s 134B and s 140’.
[5] PAM3 ‘General visa cancellation powers’.
Whether there would be consequential cancellations under s 140: there are no consequential cancellations in this case. As noted, the applicant’s wife was granted a protection visa separately to the applicant (and has a separate review for the cancellation decision in train) and separate decisions have been made not to cancel his children’s protection visas.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: it is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[6]
[6] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).
At hearing the representative submitted that it would be in the best interests of the applicant’s grand[child] – an Australian citizen – for him and his wife to remain in Australia, in accordance with the principles set out in the Convention on the Rights of the Child (CRC). As a signatory to the CRC Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). However, in this case the applicant’s children are independent and self-sufficient adults, who are capable of caring for their own children. As such it is not satisfied that cancellation of the applicant’s visa would lead to a breach of Australia’s obligations as per the CRC.
With respect to Australia’s non refoulement obligations, the Tribunal notes in this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment (ITOA) before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel his visa would not necessarily cause him to be returned to his country of origin as an ITOA would be completed by a Departmental officer prior to any decision to remove him to his country of origin. In response to the NOICC, the representative argued that if the applicant’s visa is cancelled without conducting an ITOA, it will be against Australia’s non refoulement obligations. At hearing the representative noted the Department has changed its procedure; that is, before, an ITOA was part of the cancellation decision but now it is done at the point of removal. He argues this is unfair, particularly if it results in keeping someone in detention indefinitely.
The Tribunal notes that due to recent amendments to s 197C of the Act, which now provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal, it is not necessary for the Tribunal to make findings about those matters in the context of this part of this cancellation decision. The effect of these amendments relevant to this case is considered below.
If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act and must be removed as soon as practicable (s 198 of the Act).
Recent amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In this case the applicant made a valid application for a protection visa on 26 September 2012 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 26 November 2012. In these circumstances, s 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non‑citizen requests removal.
The decision to grant the applicant a protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
However in such a scenario, cancellation may lead to prolonged detention for these reasons. The Tribunal gives this factor significant weight towards not cancelling the visa.
Mandatory legal consequences to a cancellation decision: if the visa is cancelled and the applicant exhausts his appeal rights, he will become an unlawful non-citizen and may be detained under s 189 of the Act. He is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for him as noted, the Act does not require or authorise his removal as per the recent amendments: s 197C(3). This means he may face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant him a visa under s 195A of the Act, the Minister decides under s 48A of the Act it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.
As it considers the prospect of indefinite detention likely in the applicant’s case, and the applicant has ongoing chronic health issues, the Tribunal gives this factor significant weight against cancelling the applicant’s visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): it is submitted the applicant’s children and grandchild in Australia will be adversely impacted if the visa is cancelled and the applicant and his wife return to Iran. Although adults, it appears to the Tribunal that the applicant and his wife are very close to their children, and they are financially and emotionally dependent on them to a certain degree. At hearing [Ms B] and [Mr A] gave evidence about the ways they help support their parents’ various health challenges, with [Ms B] acknowledging they also help care for her son.
The Tribunal accepts the applicant is very close to his children and grand[child] in Australia – the latter of whom he and his wife help care for – and as a family they rely on and support one another. It accepts if his visa remains cancelled and he returns to Iran, away from his children and grand[child], this will cause significant emotional hardship for the applicant and his children (and grand[child]). It gives these factors considerable weight towards not cancelling the visa.
DISCRETION
In exercising its discretion as to whether the visa remains cancelled or not, the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department about his citizenship status at the visa application stage, in an attempt to gain a favourable migration outcome. Further, he maintained this falsehood at an interview with the Department in September 2019.
However, in this case, having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular, the Tribunal gives weight to its finding that had the correct information been known about the applicant’s and his wife’s citizenship status, it is likely they would have been granted protection, anyway, based on problems their son had experienced in Iran at the hands of the Basij. These claims have been consistently made.
Additionally, the Tribunal has taken into account: the applicant (and his wife’s) medical and mental health issues; the significant amount of time they have resided in Australia, focusing on raising their children and grandchild; and the close relationships he and his wife have with his children and the hardship that would be caused if they were separated. Furthermore, prolonged detention for an indeterminate amount of time may occur in the applicant’s case if his visa remains cancelled, an eventuality that would be of particular concern given his serious and ongoing health issues.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Nicole Burns
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form, that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 1278

19 April 2022

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