2113055 (Refugee)

[2022] AATA 888

2113055 (Refugee) [2022] AATA 888 (15 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113055

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jason Pennell

DATE:15 March 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 15 March 2022 at 11.04am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect answers given in protection visa application – Faili Kurd not stateless but Iranian citizen by birth – contradictory information in sister’s protection visa application – parents’ and sister’s documented Iranian citizenship – discretion to cancel visa – undetailed claims for protection other than statelessness – long residence – mental health assessment and treatment – history and risk of psychosis, self-harm and suicide – possibility of prolonged detention – hardship if returned – statutory provisions for considering non-refoulement obligations – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 48A, 101(b), 107, 109(1), 195A, 197C(3), 197D(2)

Migration Regulations 1994 (Cth), r 2.41

CASE

MIAC v Khadgi (2010) 190 FCR 248

Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant was born on [Date] in Tehran, Iran. He arrived in [Australia] as an Unauthorised Maritime Arrival [in] January 2010, claiming to be a stateless Faili Kurd. The applicant applied for protection on 25 May 2010 and was granted a protection visa on 26 May 2010. That visa was cancelled on 21 September 2021; the cancellation is the subject of this review.[1]

   [1]  Dept File No [Number], Doc ID: [number]

3. The applicant appeared before the Tribunal on 23 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s counsellors, [Dr A] and [Ms B] of [Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian/Kurdish and English languages. The applicant also appeared on 10 March 2022 at which the Tribunal gave its oral decision subject to these written reasons. 

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

1. 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.

2. When the Minister, or a delegate of the Minister, issues notices to visa holders before cancelling a visa, the notices generally contain particulars of the grounds for the proposed cancellation and are provided to give the visa holder the opportunity to respond to the issues raised. These notices are commonly referred to as a Notice of Intention to Consider Cancellation. Notices issued under s 107 of the Act are also referred to as NOICCs.

3. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

4. In this case, the delegate issued a NOICC dated 10 May 2021. The NOICC contained particulars of non-compliance with s 101 of the Act based on inquiries made by the delegate about the applicant’s claims to be a stateless Faili Kurd. Specifically, on 4 September 2014, the applicant made an application for Australian Citizenship. In support of his application the applicant provided a form 11300t Application for Australian Citizenship-General Eligibility in which, amongst other matters, he stated that Iran was his present country of citizenship.  In addition, the applicant’s sister, [Ms C], made an application for protection to the Department and provided evidence and information to the Department, which was inconsistent with claims made by the applicant. The information before the Department suggested that the applicant is not stateless as claimed, but a citizen of Iran. As such, the Department formed the view that the applicant had not complied with s 101 of the Act. Having regard to the material, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the NOICC issued under s 107 complied with the statutory requirements. These matters are not in dispute.

5. The Tribunal had regard to the following documents in its assessment:

   (a)‘Tribunal Hearing Safety Plan’ authored by [Dr A] dated 10 December 2021.[2]

   [2]     AAT file, Doc ID no: 9247891

   (b)Letter entitled ‘Statement of [the applicant]’ dated 14 December 2021.[3]

   [3]     Ibid

   (c)Applicant’s draft statement, unsigned but written on behalf of the applicant.[4]

   [4]     Ibid

   (d)Translation (and original) of a judgment made by an Iranian court [in] February 2010 granting a divorce to the applicant’s sister, [Ms C – Alias], based on evidence that the husband was already married to someone else, was abusive, had criminal records and was addicted to drugs[5]. 

   [5]     Ibid

   (e)Translation (and original) of a judgment made by an Iranian criminal court [in] August 2010 related to charges of assault and failure to provide spousal maintenance by the applicant’s sister against her ex-husband[6].

   [6]     Ibid

   (f)Translation (and original) of a letter from a medical doctor to the police chief in Tehran province dated 28 November 2011 detailing the injuries sustained by the applicant’s sister, [Ms C – Alias][7].

   [7]     AAT file, Doc ID No: 9247891

   (g)Extract of the Royal Australian and New Zealand College of Psychiatrists relating to the mental health of asylum seekers[8].

   [8]     Ibid

   (h)Research article titled ‘The impact of immigration detention on mental health: a systematic review’ authored by M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona from BMC Psychiatry (2018).

   (i)Media item titled ‘Psychological disturbances in asylum seekers held in long term detention: a participant-observer account’ by A. Sultan and K. O’Sullivan, MJA Vol. 175, December 2001.

   (j)Media item titled ‘The mental health implications of detaining asylum seekers’ by Z. Steel and D. M Silove, MJA Vol. 175, December 2001.

   (k)Submission made by the applicant’s migration agent dated 17 December 2021.

   (l)Report of [Dr A], [Organisation 1], 19 November 2021[9].

   (m)Report of [Ms B], [Organisation 1], 5 November 2021[10].

   (n)Letter of [Dr D], Consultant Psychiatrist at [Mental health services provider 1], 5 October 2021[11].

   (o)Letter of [Mr E], Social Worker at [Mental health services provider 1], 5 October 2021[12].

   (p)Report of [Ms B], [Organisation 1], 5 July 2021[13].

   (q)Report of [Dr F], [Medical services provider 1], 2 July 2021[14].

   [9]     AAT file, Doc ID No: 9248552

   [10]  Ibid

   [11]  Ibid

   [12]  Ibid

   [13]  Ibid

   [14]  Ibid

Was there non-compliance as described in the s 107 notice?

1. 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) of the Act by reason that the applicant provided incorrect information regarding his claims to be a stateless Faili Kurd.

2. Section 101 states that:

   Visa 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 

3. Section 98 of the Act provides that 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.

4. Section 99 of the Act provides 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 s 100, ss 101(b) and 102(b) and ss 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.

5. Section 100 provides that 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.

Applicant’s migration history

1. The applicant arrived in Australia as an unauthorised maritime arrival [in] January 2010. He was interviewed for a Refugee Status Assessment on 3 April 2010; this was when he first submitted claims for protection. He subsequently applied for a protection visa by completing an application dated 25 May 2010. The visa was granted on 26 May 2010.

The NOICC

1. On 10 May 2021 a delegate of the Department issued the applicant with a NOICC in relation to his protection visa. The Department alleged that information before it suggests that the applicant is not stateless as claimed, but a citizen of Iran.

Particulars of the non-compliance

1. The NOICC stated that the applicant claimed to be stateless as evidenced by the provision of the following material:

   (a)Form 80 Personal particulars for character assessment, in which the applicant:

   i.claimed to be stateless and that his parents were stateless, and that he was born in Iraq, and his [siblings] were stateless (questions 8, 19 and 20).

   (b)Form 866C Application for a Protection (Class XA) visa, in which the applicant:

   i.claimed to be stateless by birth (question 19);

   ii.answered ‘N/A’ in response to the question relating to his current citizenship (question 20);

   iii.claimed that he holds no other citizenship (question 21);

   iv.answered ‘no’ to whether he had a right to enter any other country (question 22);

   v.claimed that he was born stateless (question 23);

   vi.left Iran illegally using a false passport (question 49).

   (c)Form 1300t Application for Australian Citizenship – General Eligibility, in which the applicant stated that his parents were born in Iran and are citizens of Iran.

   (d)A statutory declaration provided to the Department shortly after the lodgement of his application for citizenship declaring that his parents are not citizens of Iran and that no proof of birth exists

2. In addition, the NOICC identified the signing of the declaration by the applicant acknowledging that the information provided was correct as another example of him providing incorrect information. Relevantly, at page 14 of the application, it is noted as follows:

   I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

3. The NOICC stated that:

   information before the Department informs that your parents, [Mr G] and [Ms H] are citizens of Iran and are not in fact stateless as you have claimed in your application for a Protection visa. Your sister, [Ms C], has presented herself to the Department in the identity of [Ms C – alternative spelling], Iranian citizen and has lodged an application for a Protection visa.

   In support of her application, [Ms C], has provided a family composition that is near identical to what you have provided in your application. Specifically, she has stated her father is [Mr G – alternative spelling] and mother is [Ms H – alternative spelling 1]/[Ms H – alternative spelling 2] who are both documented citizens of Iran. It appears these are the same identities as your mother and father you have provided to the Department in your application for a Protection visa and subsequent application for Australian citizenship. [Ms C] has also stated that she holds an Iranian Citizenship Certificate and has presented evidence of a National ID Card issued by the Interior Registry Office in Tehran.

4. Iranian citizenship is derived paternally and given that the above information suggests both applicants’ parents are documented Iranian citizens, the information that the applicant provided with his protection visa application was incorrect. The delegate asserted that this incorrect information gave rise to a consideration of cancellation for possible non-compliance with s 101(b) of the Act.

5. Having reviewed the particulars contained in the NOICC and the answers given by the applicant in his application, the Tribunal is satisfied that the NOICC accurately sets out the answers provided by the applicant. I am also satisfied, in the absence of evidence to the contrary, that the applicant signed the relevant declaration.

Response to the NOICC

1. The Department received a response to the NOICC[15] on 5 July 2021 following two approved requests for an extension of time.

   [15] Response to the NOICC, Department file [Number], doc ID no:. [number]

2. The applicant responded to the NOICC through his migration agent at the time who acknowledged that grounds for cancellation under s 109 exist but requested that the Department exercise its discretion not to cancel the applicant’s visa based on the applicant’s vulnerable state and risk of self-harm and suicide. The migration agent cited the applicant’s history of self-harm and suicide ideation, hospital admissions and intervention by Crisis Assessment and Treatment teams and claimed that a decision to cancel would subject the applicant to such an extreme degree of hardship that it would be entirely disproportionate to the act of non-compliance.

3. The response to the NOICC also acknowledged that the decision to grant the applicant’s protection visa is likely to have been partly based on the incorrect information but claimed that the applicant “fled Iran to seek asylum in Australia on the basis of genuinely held concerns for his safety and to protect against persecution by the Iranian authorities” and that his mental health issues would have been exacerbated by his [detention] at the time that the incorrect information was provided. Furthermore, the applicant claimed that he was instructed by other [asylum seekers] to identify as a stateless Faili Kurd and did so in fear of the other asylum seekers mistreating him if he deviated from the agreed story. The applicant also alleges he lied about his age so that he would be placed in a camp with families and additional support, away from the male asylum seekers that he feared.  

4. The migration agent claimed that the applicant’s mental health issues impact on his decision-making abilities in that “he is likely to have wanted to prioritise safe outcomes and environments, as well as being disproportionately affected by fears of harassment and social exclusion”. The response to the NOICC also alleges that cancellation is not reasonably justifiable as the applicant has been recognised as a disabled person in need of additional supports and cites the reports of two medical professionals who have been involved in the treatment of the applicant’s mental health issues.

5. Included in the response to the NOICC are the following supporting documents which have also been provided to the Tribunal:

   (a)Statutory declaration of [the applicant], declared in July 2021[16].

   (b)Report of [Ms B] of [Organisation 1], dated 5 July 2021[17].

   (c)Report of General Practitioner [Dr F] of [Medical services provider 1], dated July 2021[18].

   (d)Letter of support by the applicant’s landlord, [Mr I] dated July 2021[19].

   [16] AAT file No 2113055, Doc ID No: 9248552

   [17] Ibid

   [18] Ibid

   [19] Ibid

6. The Tribunal finds that the applicant answered all questions in the application for the protection visa but provided incorrect information in answer to questions 8, 19, 20, 21, 22, 23 and 49 and his declaration that the information provided was correct at page 14 was also incorrect.

7. 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 and the Tribunal is satisfied that the ground for cancellation has been established.

Should the visa be cancelled?

1. 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).

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).

3. The Tribunal’s consideration of these matters follows.

The correct information

1. The correct information is that the applicant is a citizen of Iran by birth and is not stateless as he had claimed in his application form. As this is a question central to the identity of the applicant and forms the basis of his claim for protection, the Tribunal places considerable weight in favour of cancelling the applicant’s visa.

The content of the genuine document (if any)

1. 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

1. The applicant’s representative submitted[20] that the applicant acknowledged the decision to grant the applicant a protection visa was partly based on incorrect information. This included information regarding the applicant’s citizenship (or lack thereof), ethnicity and the nature of the harassment suffered by his family prior to arrival in Australia. 

   [20]  Letter [Mr J], [Law Firm 1] dated 17 December 2021 at p.7; Letter [Mr J], [Law Firm 1], dated 5 July 2021 at p.7

2. On 25 May 2010 the applicant lodged an application for a protection visa[21], in which he claimed he was born on [Date] and that he was a stateless Faili Kurd born in Iran. The Departmental file with respect to the applicant’s cancellation case contains a copy of the RSA record dated 3 April 2010[22] (the applicant’s statement) in which he claimed, amongst other matters, that his parents were born in Iraq and were expelled into Iran when Saddam Hussein was in power and that his parents were undocumented. As a result of being stateless Faili Kurds, the applicant claimed that his family did not have the right to work and were not able to access government services. He claimed that they were ‘only living to survive.’[23] He claimed that as Faili Kurds he and his family were not accepted by Iranians. He claimed that they were forced to wait at the end of queues in shops and forced to stand in busses because people would not allow them to sit.[24]

   [21]    Dept File No: [Number]; Doc ID: [number]

   [22]    Dept File No: [Number]; Doc ID: [number]

   [23]  Applicant’s statement dated 3 April 2010 at [8]; Dept File No: [Number]; Doc ID: [number]

   [24]  Applicant’s statement dated 3 April 2010 at [9]; Dept File No: [Number] Doc ID: [number]

1. The Tribunal has considered the delegate’s decision[25] in which the delegate accepted the applicant’s claim that he and his family were stateless Faili Kurds, who had been deprived of several rights associated with citizenship including the right to work in Iran.  The delegate found that given he does not hold Iranian citizenship, he would face a similar situation if he was returned to Iran and concluded that the applicant faced a well-founded fear of persecution in Iran due to his race and being stateless. The Tribunal accepts the applicant’s evidence that he is of Kurdish ethnicity[26] and that he and his family may have experienced some discrimination and hardship in the past in Iran.  However, the Tribunal notes that the applicant’s claims at the protection visa stage were incorrect as they related to his claim of being a stateless Faili Kurd. For these reasons, the Tribunal finds that the applicant would not have been granted a protection visa based on his Kurdish ethnicity alone at that time.

   [25]  Protection (Class XA) Visa Decision record dated 26 May 2010; Dept File No: [Number]; Doc ID: [number]

   [26]  Applicant’s statutory declaration dated July 2021 at [3]

2. Accordingly, the Tribunal considers the decision to grant the protection visa was based on the applicant’s claims to have been an undocumented stateless Faili Kurd, to have experienced discrimination and problems in Iran as a result, and to hold fears of persecution related to being stateless (among other things) in the future.  The tribunal finds that based on the applicant’s claims for protection, had the correct information been known about his citizenship, he would not have been granted protection. The Tribunal gives significant weight to this factor towards exercising its discretion to cancel the visa.   

The circumstances in which the non-compliance occurred

1. The non-compliance occurred when the applicant provided incorrect information regarding his citizenship and his ethnicity in his application for protection visa lodged on 25 May 2010. The applicant claimed that he had experienced a difficult life of persecution in Iran as a result of being a stateless Faili Kurd. In the applicant’s response to the NOICC[27], the applicant claims that most people arriving by boat were Iranian citizens falsely claiming to be stateless Faili Kurds. His evidence was that he was told to state he was a stateless Faili Kurd so as not to harm everyone else’s chance of being granted a protection visa.[28] The applicant claimed that those people who stated that they were not Faili Kurds or who altered their claims in a way the rest of the group did not approve were mistreated and ostracised.[29] The applicant also stated that he provided a false date of birth so that he would be placed with families in detention and receive greater care.

   [27]    Applicant’s statutory declaration dated July 2021 at [16]-[18]

   [28]    Ibid

   [29]    Ibid

2. The Tribunal notes that at the time of his protection visa application the applicant appears to have received limited assistance in making his application. It appears at the time of his application he was poorly advised by those around him and under the false impression that if he provided the correct information, he would adversely affect the prospects of others obtaining protection visas who had also claimed to be stateless Faili Kurds.

3. The applicant submits[30] that he left Iran to seek asylum in Australia based on genuinely held concerns for his safety and to protect against persecution by the Iranian authorities and organised criminals who were a direct threat to his family. He claims that he and his family were subjected to physical harm by his sister’s husband, [Mr L].[31] The applicant referred to a judgment of the Public Criminal Court of [Location] which referred to [Mr L]’s failure to pay maintenance to the applicant’s sister and described physical harm that he had inflicted on the applicant’s sister, including bruising to her lip, the side of her torso and the puncture of her skin on her left inner thigh.[32] The applicant claimed that the injuries suffered by his sister were substantial and included loose teeth and damage to her face and body. He claims that the puncture to her skin was caused by a gunshot wound. The applicant claims that [Mr L] is part of an organised crime network with extensive connections in the area where the applicant’s family live in Iran.[33] He claims that [Mr L] is in prison on drug related offences and is set to be released in the near future.[34]

   [30]    Letter [Mr J], [Law Firm 1] dated 17 December 2021 at p.8

   [31]  Ibid

   [32]  Letter [Mr J], [Law Firm 1] dated 17 December 2021 at [51]

   [33]  Letter [Mr J], [Law Firm 1] dated 17 December 2021 at [54]

   [34]  Ibid

4. The applicant claimed that his sister went into hiding, after which he was abducted by [Mr L] to try to obtain her whereabouts. He claims that [Mr L] beat him and threatened him with a gun. The applicant did not provide any evidence of his claim. In his response to the NOICC[35], the applicant makes no mention of [Mr L] or any harm he or his sister suffered by him.  Therefore, based on the applicant’s response to the NOICC, the Tribunal has some concerns about whether the applicant was beaten and threatened by [Mr L] as submitted to the Tribunal.

   [35]    Applicant’s statutory declaration dated July 2021

5. Nevertheless, the applicant, in his response to the NOICC[36] claimed that he left Iran because the government were killing and harassing people. His evidence was that he did not recall the exact problems his family faced, only they were insistent that he leave Iran. The applicant claimed that he felt personally threatened as he saw the authorities threaten his family and treat them with disrespect. However, the applicant did not provide any detail as to how the authorities had treated his family. 

   [36]  Applicant’s statutory declaration dated July 2021 at [13]

6. In addition, the applicant claimed that the authorities fixed elections and were watching everything people did. Finally, he stated that he was beaten on one occasion by the Basij while walking home. His evidence was that he was struck several times before the Basij members became distracted and returned to ‘some other business’[37].  The applicant gave no evidence of his injury. In addition, the attack described by the applicant appeared to be on a random basis.  Therefore, the Tribunal has some doubt that the applicant was seriously or significantly harmed or that the attack was based on any systematic or discriminatory basis.

   [37]    Applicant’s statutory declaration dated July 2021 at [14]

7. Finally, the applicant stated[38] that he has criticised the Iran government, having posted on Instagram and Facebook. The applicant did not provide any supporting evidence that he had made the social media posts as claimed or if they had been monitored by the Iranian authorities. 

   [38]  Applicant’s statutory declaration dated July 2021 at [27]-[28]

8. Therefore, based on the applicant’s own evidence[39], the Tribunal finds that there is no real chance or real risk the applicant will be seriously or significantly harmed upon his return to Iran by reason either of the government or the Basij as claimed. 

   [39]  Ibid

9. In addition, it was submitted the applicant suffered mental health concerns at the time of his protection application that impacted on his ability to exercise good judgement at the time of the application.[40]  

   [40]    Ibid

10. Nevertheless, despite the applicant’s claims that he will be seriously or significantly harmed upon his return to Iran, as detailed in his response to the NOICC, the Tribunal finds that the applicant deliberately provided incorrect information to the Department about his ethnicity and nationality and related matters which was central to the decision to grant him a protection visa. The Tribunal gives significant weight to this factor towards cancelling his visa.

The present circumstances of the visa holder

1. The applicant arrived in Australia [in] January 2010 and has remained in Australia since that date. As a result, he has been a resident of Australia for approximately 12 years.  He currently lives in shared accommodation in [Suburb 1], Victoria. The applicant’s evidence was that he has little interaction with his flatmates. The applicant claims to have difficulty meeting people but claims to have two or three friends he meets regularly.  [Mr I], the applicant’s landlord’s nephew, provided a statement[41] in which he claims to have met the applicant approximately nine years ago as part of his duties involved in managing his uncle’s property.  

   [41]  Statement of [Mr I] dated 5 July 2021

2. The applicant is unemployed. He is currently supported by Centrelink payments, including through the Disability Support Pension (DSP) scheme.  The applicant claims that he suffers from social anxieties and other mental health issues, which make it difficult for him to maintain any form of employment and to complete any course of study.[42] Nevertheless, he has submitted[43] that that he plans to apply for a [work-related] licence, which will require him to improve his English language skills.

   [42]  Applicant’s statutory declaration dated July 2021 at [54]-[56]

   [43]  Applicant’s statutory declaration dated July 2021 at [54]

3. In or about 2019 the applicant started playing [Sport] with a friend, however, with the COVID-19 restrictions the applicant has withdrawn and become depressed.[44] The applicant concedes that he has made minimal contribution to Australian society but states that is because of the serious impediments he faces on an ongoing basis.

   [44]  Statement of [Mr I] dated 5 July 2021 at [11]

4. The applicant claimed that he suffered from serious mental health issues. His evidence to the Tribunal was that he suffered mental health issues prior to his arrival in Australia. Its is submitted that this may have had a material effect on his judgement at the time of proving the incorrect information to the Department as part of his protection visa application.[45]  A report by [Ms B] of [Organisation 1] dated 5 July 2021[46] (‘the [Organisation 1] Report’) notes that since his arrival in Australia the applicant has maintained regular appointments with [Organisation 1]. His initial referral to [Organisation 1] was made by the applicant’s caseworker at [Organisation 2] in May-July 2010. At that time the applicant was reported as having a history of suicide attempts and suicidal thoughts.[47]  The [Organisation 1] Report[48] notes that during the past 10 years he has been attending [Organisation 1], the applicant’s mood and functioning has fluctuated. Its reports[49] that he has difficulty self-regulating stress, anxiety and his emotions. In addition, it reports[50] that he struggled to maintain meaningful friendships and finds it difficult to sustain work or study. At his most unwell, it’s reported that the applicant decompensates psychologically into a state of hyper-arousal and anxiety, often accompanied by self-harm behaviours and, at the worst, psychosis and suicidality.  

   [45]  Letter [Mr J], [Law Firm 1] dated 5 July 2021 at [43]

   [46]  Letter by [Ms B] from [Organisation 1] dated 5 July 2021

   [47]  Letter from [Organisation 1] dated 5 July 2021 at p.1

   [48]  Letter from [Organisation 1] dated 5 July 2021 at p.5

   [49]  Ibid

   [50]  Ibid

5. A report provided by the applicant’s representative by [Prof K] from [Mental health services provider 1] dated 3 March 2022 (the [Mental health services provider 1] Report) states that the applicant ‘has a history of major depressive disorder and has had three psychiatric inpatient admissions since 2010 after presenting with depressive symptoms and suicidal attempts.’ The [Mental health services provider 1] Report[51] notes that in the context of his visa being cancelled in September 2021, the applicant overdosed on his medication and was admitted as an inpatient to the [Suburb 2] acute inpatient psychiatric unit.  The applicant was at [Suburb 2] hospital from 29 September 2021 to 11 October 2021.[52] Due to the current proceedings and uncertainty in relation to his visa status, the applicant fears being deported to Iran, which has had considerable impact on his mental health and places him at a heightened risk of suicide. While the Tribunal accepts that the applicant may be particularly vulnerable, the uncertainty of proceedings before the Tribunal and the associated stress of the proceeding is unavoidable and is something that all applicants experience to some degree.

   [51]  Report by [Prof K] from [Mental health services provider 1] dated 3 March 2022

   [52]  Letter by [Mr E] from [Mental health services provider 1] undated

6. The Tribunal accepts the applicant’s evidence about his present circumstances. In addition, based on the reports provided to the Tribunal, it accepts that the applicant suffers for mental health issues as claimed in that he has difficulty self-regulating stress, anxiety, and his emotions, and that he can present in a state of hyper-arousal and anxiety. 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

1. 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. 

2. In response to the NOICC[53], the applicant admitted he provided incorrect information about being undocumented and stateless at the protection visa stage, as contended in the notice, and has provided evidence of his Iranian citizenship in response.  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.

   [53]  Applicant’s statutory declaration dated July 2021 at [3]; Letter [Mr J], [Law Firm 1] dated 5 July 2021 at [2]

Any other instances of non-compliance by the visa holder known to the Minister

1. There are no instances of non-compliance known to the Tribunal. Being a minimum expectation of all visa holders, this carries little weight against cancelling the visa.

The time that has elapsed since the non-compliance

1. The applicant arrived in Australia [in] January 2010 and was granted his protection visa on 26 May 2010. Since arriving, he has spent 12 years in Australia. This is a factor that would tend to weigh against cancelling the applicant’s visa.

Any breaches of the law since the non-compliance and the seriousness of those breaches

1. There is no evidence before the Tribunal to suggest that the applicant has breached the law since the non-compliance. This carries limited weight against cancelling the visa.

Any contribution made by the holder to the community.

1. On the applicant’s own submission he has not made any contribution to the community. This factor weighs in favour of the visa being cancelled.

Other considerations

1. While the factors specified in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal has also had regard to lawful government policy. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be considered 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’.

2. As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the circumstances of a particular case.[54]

   [54] Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634 (‘Re Drake No 2’)

3. The policy refers to the following matters:

   (1)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

   (2)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

   a.    if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision‑makers are obliged to treat as a primary consideration the best interests of the children.

   b.    whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.

   (3)Whether there are mandatory legal consequences to a cancellation decision, for example three examples:

   a.    whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non‑refoulement obligations.

   b.    whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P); and

   c.     whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189, and liable for removal under s 198.

   (4)Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).[55]

   [55]  Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) at [4.1]

4. Notably, all these matters relate to the consequences of cancellation.

Whether there would be consequential cancellations under s 140

1. There are no consequential cancellations in this case. As such, the Tribunal gives no weight to this consideration. 

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

1. 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.[56]

Best interests of the applicant’s child and family unity principles

[56]  PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).

1. As a signatory to the Convention on the Rights of the Child (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).  These are not relevant in this case. As such, the Tribunal gives no weight to this consideration. 

Australia’s non-refoulement obligations

1. In this case it was submitted that if the applicant is returned to Iran there would be a real risk, he would face persecution amounting to death and other forms of serious harm. As such, it was submitted that any act to forcibly remove him to Iran would amount to a clear breach of Australia’s non-refoulment obligation. It was noted that Iranian authorities do not currently accept non-voluntary returnees.[57]   

   [57]  Department of Foreign Affairs and Trade, Country Information Report 14 April 2020 at [5.27]

2. 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).

1. 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.

1. In this case the applicant made a valid application for a protection visa on 25 May 2010 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 26 May 2010.  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.

2. 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).

3. 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.

4. 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, particularly taking into account the applicant’s mental health status. The Tribunal gives this consideration significant weight toward not cancelling the visa.

5. For the reasons set out above, the Tribunal finds that ss 197C(3) and 197D(2) provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal and it is not necessary for the Tribunal to make findings about those matters in the context of this decision.

Mandatory legal consequences to a cancellation decision

1. 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 (in May 2010) as noted, the Act does not require or authorise his removal as per the recent amendments pursuant to 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. 

2. As it considers the prospect of indefinite detention likely in the applicant’s case, given the effect that such detention will have on his mental health, 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)

1. There are no other relevant matters. .

EXERCISE OF DISCRETION

1. 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 on several matters at the visa application stage, including his statement that he was stateless.  The incorrect information he provided was central to the decision to grant him a protection visa.  As discussed, the Tribunal considers that had the correct information been known, he would not have been found to engage Australia’s protection obligations. Accordingly, the Tribunal considers it inappropriate that the applicant should benefit from having provided the incorrect information. 

2. However, in this case, having considered 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.  The Tribunal gives weight to the fact that by operation of section 197C of the Act, the applicant will likely be subjected to prolonged detention if his visa remains cancelled.  This is of particular concern taking the applicant’s mental health into account and the effect that such prolonged detention would have upon his mental health.

CONCLUSION

1. 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

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

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.