2107227 (Refugee)

2107227 (Refugee) [2022] AATA 1277 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2107227
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 – possession of Iranian passport and voluntary return – incorrect answers initially maintained then non-compliance conceded – stateless claim made on advice by people smugglers – son’s adverse interest to Iranian authorities and husband detained and beaten – visa would likely have been granted in any case – 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), 107, 109(1), (2), 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 as they concluded the applicant had provided incorrect answers in certain respects in relation to her 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 woman from Tehran, Iran. According to Departmental records, [in] December 2011 she [arrived] (accompanied by her husband and three children) as an irregular maritime arrival (IMA) having left Iran earlier (via [Country 1]). She applied for a protection visa on 26 September 2012, which was granted on 26 November 2012, based primarily on her (and her husband’s) alleged status as an undocumented stateless Faili Kurds. That visa was cancelled on 20 May 2021, and that decision is the subject of this review.
The applicant came to Australia with her husband and three children, who were granted protection visas separately. Her husband’s protection visa was cancelled at the same time as the applicant’s visa was cancelled. He has sought a review of that decision with the Tribunal. [1] The applicant’s children received correspondence from the Department indicating they were considering cancelling their visas; however, the delegate in their cases decided not to do so, after considering their circumstances.[2]
[1] AAT No. 2107226
[2] The representative provided copies of the decision notifications in respect of the applicant’s children to the Tribunal on review. At hearing he advised that there were no decision records in their cases.
The applicant and her husband 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 her husband 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 her visa may be cancelled. In her response to that notice, the applicant acknowledged that she is an Iranian citizen (as is her husband), and confirmed her correct date of birth (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 her husband and three 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 NOICC dated 31 March 2021, which advised the applicant that her visa may be cancelled under s 109 because of concerns that she did not comply with s 101(b) of the Act. She was advised to respond in writing, which she did in the form of a statutory declaration dated 26 April 2021, a written submission from her 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 her protection visa application in certain respects. Specifically, the notice recounts that on 15 December 2011 the applicant requested a protection obligations evaluation (POE) claiming (in a statement of claims dated 9 February 2012) to be a Faili Kurd born in Iraq who had been forced to move to Iran with her family when young and lived there without identity documents.
At that time she also provided a completed Form 80, personal particulars form, giving details of her family members.
The NOICC states that on 4 September 2012 the applicant was found to be owed protection as 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 she did on 26 September 2012. Her protection visa was granted on 26 November 2012.
However, subsequently, on 4 November 2013, as set out in the NOICC, the applicant’s sister, [Ms C] (date of birth: [Date 1]) submitted to the Department an application for a partner visa (from Iran). In doing so she provided a copy of her Iranian birth certificate, and her Iranian passport, which confirmed her status as an Iranian citizen. [Ms C] also provided a copy of her father’s, [Mr D]’s, Iranian birth certificate and national identity card, which listed (among other things) details of his children, including the applicant and her brother, [Mr E], who was also found in possession of an Iranian passport.
Furthermore, as indicated in the NOICC, [in] July 2014 the applicant visited Iran and on return to Australia [in] September 2014, following a search of her baggage, an Iranian passport issued in her name in Canberra [in] 2013 was located. In that passport was a record of the applicant’s last exit date of ‘[11]/2011’ from Imam Khomeini Airport, which was prior to the applicant’s arrival in Australian as an IMA [in] December 2011. At her interview with the Department on 10 September 2019, the applicant was presented with a copy of that Iranian passport. She confirmed it was hers, but denied applying for it directly, indicating that she had used people smugglers.
Given that under Iranian law citizenship is passed through the paternal line, and based on the evidence that the applicant’s father was an Iranian citizen, the delegate concluded in the NOICC that the applicant was an Iranian citizen.
Additionally, the NOICC records that the applicant’s date of birth listed in her Iranian passport and her father’s Iranian birth certificate is [Date 2], not ‘31/12/[Year]’ as stated in her protection visa application. Accordingly, they concluded the applicant had also provided incorrect information at the protection visa stage about her date of birth.
Response to the NOICC
In her statutory declaration dated 26 April 2021 provided in response to the NOICC, the applicant acknowledges she provided incorrect information at the protection visa application stage about being stateless, claiming this was due to the influence of people smugglers who encouraged her to do so to increase her chance of success in obtaining protection. In her response, the applicant confirmed the following:
·She was born in Iraq on [Date 2].
·She is an Iranian citizen, and documented Faili Kurd.
·Her father and siblings are documented Faili Kurds.
·The passport she used to return to Iran in 2014 is genuine.
·She left Iran in 2011 due to issues between the authorities and her son, [Mr A]. The authorities also tortured her husband and assaulted her daughter ([Mr B]).
The applicant also submitted a copy of a letter from her doctor dated 17 April 2021, who details her medical history, and current health issues and medications.
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 she had provided incorrect information in certain respects in her protection visa application, specifically, about being undocumented and stateless and having a different date of birth. 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 she lives with in Australia, and her daughter, [Ms B], who also resides in Melbourne (separately, with her husband and [child]), both dated 21 September 2021. Several other supporting documents were provided, including from the applicant’s doctor, referenced, where relevant, below.
At hearing the applicant acknowledged she provided incorrect information at the protection visa application stage in claiming she (and her husband) were stateless and undocumented, due to advice from people smugglers. She maintained this falsehood at the identity interview in September 2019 because she was not in a good situation having recently undergone an operation, and as her brother-in-law had just died; she claims that she was not able to make proper decisions at that time.
The applicant told the Tribunal they left Iran in 2011 mainly because her son, [Mr A] had been of adverse interest to the Basij (and her husband had been beaten by the Basij when trying to locate their son), as indicated at the protection visa stage, which was true. However, they added the claim to be stateless, which was not true; she apologised, indicating her remorse.
A copy of the applicant’s Iranian passport is on the Departmental file, issued [in] 2013, valid until [2018]. It states her date of birth is [Date 2], which she confirmed is correct in her response to the NOICC. In that response she also confirmed this passport was genuine. At hearing the applicant said she obtained the passport via the Iranian Embassy in Canberra before returning to Iran in 2014. She had given her Iranian passport that she used to depart Iran to people smugglers in [Country 1].
Based on this evidence, the Tribunal is satisfied the applicant was born on [Date 2], is an Iranian citizen and was an Iranian citizen at the time she applied for protection (as is and was her husband). It follows that the Tribunal is satisfied she provided incorrect information: when claiming to be born on 31/12/[Year], in answer to question 8 in her protection visa application; when claiming to be stateless, in answer to question 20 in the protection visa application form; and stating ‘no country recognises us as their nationals’, in answer to question 24 about how, when and why she became stateless.
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 in these respects.
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 who was born on [Date 2]. Her claims to have been undocumented and stateless and to have 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 her husband’s claims but the main claim put forward at the time related to the incident where her husband 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[3], it is hard to say what weight this claim was given overall in the protection visa assessment.
[3] 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’s husband was tortured as a result of the conflict between the Iranian authorities and [Mr A], which is the event that led to the family fleeing Iran. He submits that the stronger claims of the applicant and her family seem to be that they belong to the minority Faili Kurd ethnicity and that the applicant’s husband was harmed by the authorities. As such, he contends that it is likely the applicant (and her husband) 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 her husband) 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’s husband and assaulted him, in a bid for him to give up his son. After he was released the applicant’s husband 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 her husband 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 her claims in this regard and accepts that her fears related to what may have happened to her son led to their decision to leave Iran in 2011, and claim protection in Australia.
As noted earlier, 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, her husband and their three 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’s son (and husband) 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 she was documented and an Iranian citizen was known (and related to her correct date of birth). It finds the decision to grant her 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 her 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 she provided the incorrect information based on advice from people smugglers to enhance her chances of being successful in gaining protection in Australia. Although her claims to be undocumented and stateless were untrue, she told the Tribunal she was still scared to remain in Iran – mainly in relation to the Iranian authorities’ interest in her son – and scared of returning. As noted, she indicated at hearing that she was remorseful (as did her husband).
At hearing the applicant’s daughter, [Ms B], who was [Age 2] (and the oldest of the three children) when she and her family arrived in Australia, said her parents saved her and her brother (and younger 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 her 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 her husband are remorseful; that 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 her and her husband’s nationality 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 her husband and children in December 2011. At hearing she confirmed that she lives with her husband 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 her husband, 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 her husband 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 brother lives in Melbourne, with his wife and [daughters], whom they are reasonably close to. The applicant told the Tribunal that her parents, sister and brother continue to reside in Iran.
Evidence has been provided showing the applicant’s history and current presentation of at times, serious mental health issues. Specifically, in a letter to the Tribunal dated 27 August 2021, her treating psychologist, [Dr F], states that the applicant, who she has treated since 2013, has been diagnosed with severe Major Depressive Disorder with psychotic features, and severe generalised anxiety disorder. At hearing the applicant said she stopped seeing [Dr F] after her visa was cancelled given she no longer had access to a healthcare card, noting the costs were prohibitive. Before that she saw her regularly and has also seen a psychiatrist on occasion in the past. She experienced depression in Iran and was prescribed Valium and other medicine to help her sleep there: in Australia the doctors have altered her medication. Presently she takes anti-depressants. She said in addition to the depression diagnosis, her psychologist had diagnosed her with bipolar disorder. Her husband said a few times the applicant has fainted due to panic attacks and he has had to organise an ambulance for her to go to hospital.
The applicant also told the Tribunal she is a diabetic and has high blood pressure, for which she takes medicine. This is confirmed in the letter from her GP provided.
The applicant’s husband experiences several chronic and ongoing health problems, including diabetes and high blood pressure. He has also experienced mental health problems including depression and PTSD, exacerbated by the cancellation decision. This has been confirmed in letters from health professionals provided in respect of his cancellation matter.
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 grandchild) here, given: their physical and mental health issues (which they help manage); how close they are as a family unit; and the length of time their parents have resided in Australia and the limited support available in Iran.
The Tribunal accepts the applicant’s evidence about her and her family’s present circumstances, noting the significant length of time she has spent in Australia, her closeness (and in some ways co-dependency) with her children here, her husband’s complex and chronic health issues and challenges, and her health issues and her mental health issues, which are chronic and at times, serious. 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 she provided incorrect information about being undocumented and stateless at the protection visa stage, and about her date of birth (by confirming her actual date of birth), as contended in the notice. 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 her children who currently work or study here. In his submission to the Tribunal, the representative explains that as the applicant (and her husband) 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,[4] 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’.
[4] 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 husband 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 their 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.[5]
[5] 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 her and her husband 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, the Tribunal is not satisfied that cancellation of the applicant’s visa would lead to a breach of Australia’s obligations under 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 her visa would not necessarily cause her to be returned to her country of origin as an ITOA would be completed by a Departmental officer prior to any decision to remove her to her 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 she is an unlawful non-citizen, she 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. 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 her appeal rights, she will become an unlawful non-citizen and may be detained under s 189 of the Act. She is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for her as noted, the Act does not require or authorise her removal as per the recent amendments: s 197C(3). This means she 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 her a visa under s 195A of the Act, the Minister decides under s 48A of the Act it is in the public interest for her to be able to apply for a further protection visa, or she 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 mental 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 she and her husband return to Iran. Although adults, it appears to the Tribunal that the applicant and her husband 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 [child]. They also spoke of the adverse impact their departure would have on them, and in [Ms B]’s case, her [child].
The Tribunal accepts the applicant is very close to her children and grand[child] in Australia – the latter of whom she helps care for – and as a family they rely on, and support one another. It accepts if her visa remains cancelled and she returns to Iran, away from her children and grand[child], this will cause significant emotional hardship for the applicant and her 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 her (and her husband’s) citizenship status at the visa application stage, in an attempt to gain a favourable migration outcome. Further, she maintained this falsehood at an interview with the Department in September 2019. She also provided incorrect information about her date of birth; it is unclear to the Tribunal her motivations for doing so.
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 her husband’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 her husband’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 they have with their children (and grandchild) and the hardship that would be caused if they separated. Furthermore, prolonged detention for an indeterminate amount of time may occur in the applicant’s case if her visa remains cancelled, an eventuality that would be of particular concern given her serious mental health issues, and her reliance on her children and husband in Australia for psychological, emotional and other support.
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 1277

19 April 2022

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