2118180 (Refugee)

2118180 (Refugee) [2023] AATA 2588 (16 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Momeni Kourosh (MARN: 0955242)
CASE NUMBERS:  2118180
2118177
COUNTRY OF REFERENCE:                   Iran
MEMBER:Genevieve Hamilton
DATE:16 June 2023
PLACE OF DECISION:  Melbourne
DECISION:Case number 2118180: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Case number 2118177: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Resident Return) visa.

Statement made on 16 June 2023 at 3:46pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – combined hearing of reviews for husband’s protection visa and wife’s 5-year resident return visa – incomplete and incorrect answers given in protection visa application – husband’s claim as stateless Faili Kurd – department’s information of Iranian citizenship and passports – family relationships not declared – new passports obtained, money transfers and return travel – applications for citizenship refused on character grounds – husband’s conviction and suspended sentence – discretion to cancel visa – advised by others in detention centre to claim statelessness and claim maintained for extended time – certain incorrect information conceded – departed lawfully on genuine passports – conversion to Christianity in Australia – length of residence, work and church and community activities – mental health – separation and reconciliation – first child a dual national and newborn second child – best interests of children – non-refoulement and legal consequences – slight balance in favour of non-cancellation – decisions under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 198
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to cancel the first review applicant’s Subclass 866 (Protection) visa and the second review applicant’s Subclass 155 (Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visas on the basis that the review applicants had provided incorrect and incomplete information in protection claims. 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 review applicants appeared before the Tribunal on 1 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses. The applicants were represented in relation to the review.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 in the following respects:
Section 101 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.
28 June 2021 s 107 notices were sent to the review applicants. The notice sent to the first review applicant contained the gist of the incorrect information and answers not given. As the incorrect information was also contained in the second review applicant’s case, the notices are largely identical. The notice to the first review applicant states as follows:
On 4 September 2010, you requested a Refugee Status Assessment (RSA). In this request, you declared you were stateless, and during your RSA interview, you stated you had no identity whilst living in Iran and no documents. This impacted on you as, although you received basic schooling, you were denied university education, you were legally unable to access work and had no freedom of movement. You claimed that whilst your spouse was a citizen of Iran, it was very hard to live in Iran. You claimed to have been routinely discriminated against due to your race and denial of a nationality. This in turn meant your wife was subjected to denial of the same rights and this would potentially follow on to your children, if you had them.
Your wife also applied for Protection on the basis of being married to a stateless Faili Kurd and the associated hardships and discrimination she encountered with this.
You and your spouse both claimed you were unable to register your marriage and you could not start a family in Iran as any children you have would also be stateless. Any resultant children of the marriage would not have the right of a birth certificate and would not be able to access the usual health or education services available to Iranian citizens.
On 3 March 2011, a Refugee Status Assessment was undertaken. The delegate determined you met the definition of a refugee set out in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. This was on the basis of your claims to be a stateless Faili Kurd, born in Iran to Iraqi refugee parents. This resulted in the recommendation you be recognised as a person to whom Australia has protection obligations.
The notices go on to note that the review applicants then lodged protection applications on 3 May 2011 also claiming that the first review applicant was stateless. The notices further outline instances of the first review applicant not providing information.
At question 20, Your current citizenship (if different at birth)?
You did not provide an answer.
At question 23, If you are stateless, how, when and why did you lose your citizenship?
You did not provide an answer.
It was noted that the review applicants had provided statutory declarations in which they stated that the first review applicant was stateless, and they had left Iran illegally on fake passports. The Department, however, had information from various sources that the applicant was a documented Iranian citizen and that they had both obtained Iranian passports.
Part of the information was based on family relationships. The second review applicant’s uncle [Mr A], on her mother’s side, came on the same boat. She did not mention him in her entry interview. He claimed to be stateless. Her mother [Ms B] came to Australia and applied for protection. She did not mention her brother, but said she was an Iranian citizen. The Department having detected the family relation, the uncle’s protection visa was also cancelled. The first review applicant’s mother [Ms C] is also a sister of [Ms B] (i.e. the review applicants are first cousins). [Ms C] was an Iranian citizen according to [Ms B]’s visitor visa application, which indicated that the first review applicant could also be an Iranian citizen.
Further, the Department noted that the applicants reported lost passports to the Northern Territory police and apparently used this report to obtain Iranian passports from the Embassy in Canberra, and that they had both travelled to Iran in 2014. The first review applicant had also transferred a significant amount of money to his father in Iran, and his father would need to have some identity documents in order to receive the money. The notice outlines that the applicants did not appear to have had any difficulty visiting Iran over approximately 7 weeks which contradicted their claimed fears of harm in their protection applications, including the claim to have left illegally.
The Tribunal has considered other information on the applicants’ files. In his biodata interview the first review applicant, asked about his citizenship said he was “Kurdish Faili/ Iran”. There is no entry interview on file. But his claimed statelessness is emphasised in the entry interview of the second review applicant. She said that her family had not accepted her marriage and would do anything to separate them. She said she chose Australia over Europe because she could wear her headscarf here. She did mention (when asked about whether she was affected by security organisations that the Iranian authorities were strict about moral matters e.g. mixed classrooms (she is university educated). In her protection application she said she was NOT a practising Muslim. She claimed her father did not consent to her marriage and that she was an illegal single woman who would be stoned to death on return.
The first review applicant made a citizenship application which was refused in 2017 because he was not of good character, having lied about being stateless, being convicted of aggravated assault in 2015 (six months suspended sentence) and also returning from a visit to [Country 1] later in 2015 with “violent images on his phone of such a graphic nature as to be against the standards of morality decency and propriety generally accepted by reasonable adults in the Australian community.” The second review applicant also applied for citizenship and was refused.
The first review applicant failed to declare his criminal convictions in his passenger cards. The first incoming passenger card declares that he is an Iranian citizen, returning from Iran (2014). The second passenger card (returning from [Country 1] in 2015) says he is stateless.
In response to the notice the review applicants conceded that they provided certain incorrect information.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the review applicants in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors 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 lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The review applicants’ then representative made submissions in response to the s 107 Notices. With regard to the first review applicant it was submitted that he is a Christian, and has worked consistently as [an Occupation 1] since arrival, and operates his own business. He agreed it was not correct that he was stateless, or had been discriminated against on this basis, or had a false passport, and agreed that he had not divulged he was an Iranian citizen. The correct information is that he is an Iranian citizen and left Iran legally. It was conceded that the protection visa grant was “partly” based on this. He instructs he WAS treated as a non-citizen due to being Faili and regularly subjected to discrimination and physical ill treatment. He was told on the boat to claim they were stateless and did so being “young naïve and believing that it was the only choice open to him”. He is deeply regretful, and is fully aware of what is at stake if his visa is cancelled. He has a very close relationship with his son, and is highly invested in his education. They go to church as a family. The child needs both his parents. The second review applicant needs him to share parenting and provide financial support. He is working as a subcontractor and also employs subcontractors himself, with intention to take apprentices. Business would have to close if he leaves Australia. He is anxious and has a severe recurring depressive disorder. He acknowledges he also provided false information in his citizenship application lodged on 15 May 2015, regarding being stateless, as part of the same chain of events. It was submitted that it had been 8 years since the non-compliance. It was submitted that he had no record of criminal or bad behaviour. His community contribution was to the Church, to [Organisation 1] and [Organisation 2]. He has solid professional relationships. He also looks after a local pensioner with meals and welfare checks. The parties own three properties. He would be subject to bar on further onshore applications, and liable to liable to detention and removal, if his visa remained cancelled.
The representative made submissions about non-refoulement and other international obligations including the Convention on the Rights of the Child and the Torture Convention. Their son [Master D] is a dual national which puts him at risk in Iran. The review applicants are Faili Kurd and converts to Christianity. An ITOA process would not necessarily prevent therm being detained or removed or grant them a visa. The representative referred to the general repression of civilians under the Iranian moral code, discrimination against Kurds and active repression of Kurdish opposition activists.
In his statutory declaration dated 15 July 2021 the first review applicant said he was a Christian and a Faili Kurd, his mother was born in Iraq, his father in Iran, and he is not stateless but is an Iranian citizen. His marriage is registered. Being Faili Kurd meant constant discrimination. He left his parents and siblings to come to Australia. He outlined his property holdings, and his role in this son’s life. He described how difficult it is to get work in Iran hence he transferred 137,000 to his father in 2016 so his father could buy a home. After [Ms E] died the whole family fell into depression, and her sister in Sydney encouraged them to attend Church. After attending a few times he felt touched and filled with positive spirit. He became more devoted and eventually converted to Christianity. It would not be safe to practice Christianity in Iran. On arrival in Australia he came down with depression and was on government support. He got better when they moved to Darwin in 2012 and obtained employment. He is involved in community organisations and is an organ donor. He won’t be able to support his family if he is returned to Iran.
The following documents were submitted for the first review applicant.
·Factory lease documents
·Business name registration and ABN
·Work orders from [Company 1]
·Successive notices of tax assessment.
·His birth certificate
·Rates notices in join names for unit in [Suburb 1] and unit in Darwin
·Construction safety induction (white card) training
·Rates notice for house in [Suburb 2]
·Organ donor registration
·3 baptism certificates dated 4 June 2017 (himself, the second review applicant and their son [Master D])
·Professional and personal reference from [Mr F] a fellow [Occupation 1]
·Employment records [Employer 1], [Employer 2] and [Employer 3].
·Letter of recommendation from the former president of [Organisation 1].
·Professional and personal reference from [Ms G] [Occupation 2]
·Professional and personal reference from [Mr H], Director of [Company 2]
·Letter of support from [Ms I] from [Church 1]
·Passport copy
·Photos of [the first applicant] and [Master D]
·Professional and personal reference from [Ms J]
·Letter from [Rev K] of [Church 1], stating that [the first applicant] has been baptised after completing requirements.
·Letter of support from the spokesperson for [Organisation 2].
·Statutory Declaration of [Mr L], a pensioner who is assisted by [the first applicant] with shopping, meals and welfare checks.
·Letter of support from [Ms M], Member of the [Church 1] Board.
·Professional and personal reference from [Mr N], owner of [Company 3].
·Professional and personal reference from [Mr O] of [Company 4]
·Letter of support from [Mr P] of [Church 1].
·Letter of support from [Dr Q], a dentist.
·Letter of support from [Dr R], of the Church.
·Water notice for property in [Suburb 3]
·Assessment by [Mr S], psychologist
The submission for the second review applicant concedes that the correct information is that she was married to a documented Iranian citizen and departed Iran legally on her Iranian passport. The submission outlines the events that began in 2013 with her sister [Ms E]’s cancer diagnosis and the obtaining of new passports to go to see her. They did have difficulties during their trip to Iran, they were interrogated about why they had returned and threatened that they would not be able to leave again, $3000 cash was confiscated from them. The submission describes the impact of [Ms E]’s illness and death on the family. It was submitted that the applicant was regularly subjected to discrimination and physical mistreatment by the Basij due to being a Faili Kurd. She did believe she would eventually be killed in Iran and that is why she chose to go to Australia. Children affected by cancellation include not only [Master D] but also her nephews in Sydney. Her other family members will also be affected. They are citizens and permanent residents. Due to the death of one sister they need to keep the family together. She has been here for 10 years, is anxious and depressed at the possibility of losing her son and her home Australia, and has not further breached her obligations to be truthful to the Department. She is an active and valued member of [Church 1]. She was a good worker and contributed to the economy.

In her statutory declaration the second review applicant said they did face discrimination in Iran as Faili Kurds. She and her ex-husband (the parties were separated at the time of the s 107 Notice) listened to the smugglers and did what they were told to do. They were told on the boat that Australia would deport anyone who had any citizenship. She sincerely apologised that she provided incorrect information when she said she was married to a stateless person. She stated that she was a Christian and that her parents and her surviving siblings now live in Australia. She has a son, and the first review applicant provides child support and visits. She admitted that her marriage was registered in Iran. She lives in a house registered in the first review applicant’s name. They were trying to rebuild their marriage. Her son is an Australian citizen. She is close with her family. Her sister passed away in 2016, that is why she went to Iran in 2014, as her sister was sick with cancer. They have a genuine fear or returning to Iran as Christians. Her sister who first migrated to Australia encouraged them to go to Church, the whole family was depressed after her other sister in Iran died. They were now all converts. The second review applicant outlined her employment history and further qualifications gained in Australia. She also helps members of her community with administrative matters. She undertook to comply with Australia law if given a second chance.
With her response to the s 107 Notice the second named applicant submitted the following documents:
·Training and employment records for [the second applicant] in Australia
·Photographs (family and other)
·Her ABN
·Her police check
·Organ donor registration
·YMCA ([Master D] enrolled in programs).
·[Master D]’s Kindergarten teacher letter
·[Master D]’s birth certificate [date]
·Mother and siblings’ baptismal documents
·[Ms E]’s death certificate
·[Individual name]’s Australian citizenship.
·Various identity documents for her family members.
·[Employer] work reference, family day care reference.
·Statutory declarations of her parents and siblings, and other evidence of their close family relationships
·Statutory declaration of a supportive colleague from [employer]
·Rates notice in joint names for a unit in NSW
·Rates notice in joint names for the property in Darwin
·Letter of support from [Ms I] who knows [the second applicant] from Church.
·Letter of support from [Ms M], Church Board Member
·Letters of support from [Rev K] from the Church, who baptised her after she met the requirements.
·Letter of support from [Mr P] from the Church
·Letter from [Dr R] stating that she knows [the second applicant] from the Church
·Several years’ tax notices of assessment.
·Education offer from [university]
·Assessment and report by [Mr S], psychologist.
Further documents were submitted to the Tribunal in advance of the hearing:
·Birth certificate of the parties’ second child, a girl, born on [date]
·A letter from a counsellor
·Further letter from [Ms M]
·Further letter from [Dr Rev K]
·Letter from [Mrs U] of [Church 1]
·Photos of the review applicants at a protest against the Iranian government.
The Tribunal was also assisted by a pre-hearing submission from the review applicants’ new representative who reiterated and amplified arguments previously made in response to the s 107 Notice, particularly concerning the background to their decision to claim that one of them was stateless and their feelings of guilt about this. It was noted that they had resiled from this claim in their return passenger cards after visiting Iran, as they had decided to correct their information with the Australian Government. Nevertheless they did not hear from the Department for years. They separated then reconciled, and their daughter does not have a Persian name which is contrary to Iranian law. It was noted that the second review applicant now has no family in Iran. It was noted that the parties have converted to Christianity which was a risk in itself but also carries the imputation of an anti-Government political opinion in Iran. They had participated in the recent protests against the Iranian government because the deceased Mahsa Amini was also Kurdish. The submission proceeds to address considerations regarding the interests of the children, and cited [Mr S]’s reports.
At the hearing the Tribunal heard from [Mrs M] and [Mr P] attesting to their belief that the review applicants were genuine in their faith, and acknowledged that other members of the Church had been willing to give evidence to the same effect.
The first review applicant agreed that he was not stateless and had held a genuine Iranian passport. He agreed that he did not have major problems in Iran due to being stateless. His mother was Iraqi but later became an Iranian citizen. His father is Iranian. They are both Faili Kurds. He grew up in Tehran. He and the second review applicant married in Iran in 2009; the marriage was registered. His family have a low socio economic status. Life was difficult due to being Faili Kurd, laws and regulations interfered in their lives and they were often stopped in the street. They were treated as Arabs, and as Iraqi enemies. He didn’t want to bring children up in that environment. On their mothers’ side the marriage was supported, but the second review applicant’s father was not entirely happy because she had been expected to marry his brother’s son.
Asked if there were any problems at all when they went to Iran in 2014 the first review applicant said there were no problems, they mainly visited the hospital. There were no problems at the airport either going in or going out.
Asked why he had claimed to be stateless the first review applicant stated that he was scared; he had felt bad about it ever since. It was at the detention centre. Other arrivals were saying that they were stateless and he was under pressure to do the same so as not to jeopardise their case. The Tribunal asked what the review applicants were planning to claim when they were arranging their trip. The first review applicant stated that they just wanted more freedom. The Tribunal put to the review applicants that it would have thought they would already be planning to claim statelessness when they were still in Iran. The fist review applicant denied this was the case, they did not have a thought that being stateless would be important to their case. The Tribunal put to him that since then he had never come forward and told the truth. He replied that he had established his life here and was afraid of having to go back to Iran. He still regretted it. He told the Tribunal that his wife had no part in the scheme, he had asked her to go along with it. Both parties stated that they were no longer in contact with Uncle [Mr A], nor was [Ms B]. He is no longer considered a good person in the family.
The first review applicant confirmed that he had worked and saved money in order to send it to his father so he could buy a house. With regard to his criminal conviction he said that he had never instructed his lawyers that he did not have a record.
The Tribunal discussed with the parties two periods in which they were separated. These correlated with periods when the second review applicant declared to be single for Centrelink purposes. As soon as they reconciled (at the end of 2021) they advised Centrelink accordingly. Sometimes the first review applicant stayed at the house during the separation, but in a different room. He paid child support during their separations. They kept going to Church as a family.
There followed a discussion about how the whole of the second review applicant’s family converted to Christianity and then the first review applicant as well. The second review applicant said her brother had recently married in a Church ceremony. The Tribunal put an allegation that her [business] had been a fraudulent operation. She replied that this had never been mentioned to her before and that it was not true. She closed the business during Covid lockdowns.
The Tribunal turns to evaluate the prescribed circumstances are set out in reg 2.41.
The correct information is that the first named review applicant is not stateless but is an Iranian citizen. The review applicants did not have problems in Iran due to his being stateless. They were not prevented from registering their marriage. They left Iran legally travelling on genuine passports in their own names. This provision of incorrect information about an important aspect of identity is anathema to the integrity of the migration program and weighs strongly in favour of cancellation.
The content of the genuine document (if any): this factor is not applicable on the facts and is therefore of neutral weight.
Whether the decision to grant a visa was based, wholly or partly, on incorrect information: The Tribunal notes that the positive RSA assessment states confidently that the first review applicant has been deprived of all of his fundamental rights in Iran due to being stateless. This was, on any reading, the only basis for the positive assessment. The decision to subsequently grant the applicants protection visas was based entirely on the acceptance that the first review applicant was stateless. The centrality of the claim of statelessness to the grant of protection visas weighs strongly in favour of cancellation.
The circumstances in which the non-compliance occurred: the review applicants sought a better life and engaged people smugglers. They claimed that it was only after leaving Iran that they were persuaded (and pressured) to claim that one of them was stateless. The Tribunal doubts that this is the case. Members of the second named review applicant’s family had already arrived by boat, and others undertook the journey with them. It is improbable that the details of their claims had not been discussed prior to departure from Iran. This factor weighs moderately in favour of cancellation of their visas.
The present circumstances of the visa holders: the review applicants live a settled family life in Australia. The first review applicant is by all accounts a hard worker and a good provider for his family with the opportunities he has had here. They are connected to their communities and have reunited as a family to have a second child. The second review applicant has parents and siblings in Australia, to whom she is closely bonded. This factor weighs moderately against cancellation of their visas.
The subsequent behaviour of the visa holders concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act: The second review applicant embellished dramatically the risks she faced in Iran due to the claimed unregistered marriage. While it is true that on one of his incoming passenger cards the first review applicant stated that he was an Iranian citizen, he reverted to claiming statelessness in his citizenship application and on his return passenger card from Thailand. In response to the s 107 Notice the review applicants exaggerated the harm they experienced while living in Iran by claiming they were physically mistreated. They either invented or exaggerated the significance of questioning and cash demanded during their trip to Iran in 2014. The second review applicant (and her mother) have also been evasive about the existence of family members with Iranian citizenship. This factor weighs strongly in favour of the cancellation of their visas.
Any other instances of non-compliance by the visa holders known to the Minister: the Tribunal is not aware of any other non-compliance by the visa holders with their immigration obligations. This matter is of neutral weight in considering the cancellation of their visas.
The time that has elapsed since the non-compliance: the non-compliance occurred almost 13 years ago. The non-compliance began to come to light when the parties lodged citizenship applications and the identities of various family members began to unravel. That was itself almost a decade ago. This factor weights moderately against cancellation of their visas.
Any breaches of the law since the non-compliance and the seriousness of those breaches. The first review applicant has a conviction for assault. This weighs strongly in favour of cancellation of his visa. Other matters raised on the files have, on the information before the Tribunal, not been investigated or prosecuted.
Any contribution made by the visa holders to the community: the first review applicant is a contributor to the economy and appears to be professionally well regarded and a good neighbour. Otherwise their community involvement is limited mainly to the Church. This factor weighs moderately against cancellation of the visas.
Regarding matters in the PAM 3 guidelines, there would be no consequential cancellations under s 140.
The best interests of the children as a primary consideration: The consequences for the stability of the upbringing of the review applicants’ children, particularly the [age] year old boy who has been brought up and begun his education in Australia and apparently does not speak Farsi, would be detrimental if they had in due course to return to Iran, or their parents returned without them, or even if their parents lose their privileges as residents of Australia and the financial implications of this. It is clearly in their best interests that the visas not be cancelled. The Tribunal gives this factor the strongest weight against cancelling the visas.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations. The review applicants have been found to be owed protection, and unless a further assessment is made to the contrary, generally they cannot be removed from Australia under s 198. This factor is therefore of neutral weight in considering whether or not their visas should be cancelled.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening: The review applicants would be liable for detention, whether closed or in the community, if their visas are cancelled. Recent arrangements between Iran and Australia facilitating their removal to Iran do not apply; Iran will not accept them as involuntary returnees and it is improbable that they would return voluntarily. They are unlikely to be able to make onshore visa applications due the s 46A bar affecting unauthorised maritime arrivals. If their visas are cancelled the first applicant is also subject to the bar in s48A preventing the lodgement of a further protection visa application as he will have had a protection visa cancelled. The Tribunal gives this factor some weight against cancellation of their visas, but not much. After all these provisions are designed precisely to protect the integrity of the migration regime.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): it was put to the Tribunal that as Faili Kurds they would suffer discrimination, and as Christian converts they would face persecution in Iran (if they returned). The review applicants have not detailed particular instances of discrimination they experienced as Faili Kurds in Iran, rather their claims about this were very generalised. Outwardly they have presented as Christians in Australia and this does create some risk as it is likely to be known or suspected by the Faili community in Tehran. The Tribunal gives this moderate weight against cancellation of their visas.
To sum up, the immigration fraud perpetrated and perpetuated by the review applicants is egregious, and factors pertaining directly to it weigh strongly in favour of the cancellation of their visas. There are other character concerns which also weigh in favour of the cancellation of their visas.
On the other hand the review applicants’ present circumstances, the likely legal consequences of cancellation in terms of their immigration status, the duration of their life in Australia, and settled position in the community, along with the hardship they would experience if they had to return to Iran in due course, overall carry moderate weight against cancellation of their visas.
The Tribunal attributes the strongest weight to the best interests of the children as a primary consideration against cancellation of their parents’ visas. The Tribunal has therefore formed the view that the considerations against cancellation slightly outweigh those in favour.
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 visas should not be cancelled.
DECISION
Case number 2118180: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Case number 2118177: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Resident Return) visa.
Genevieve Hamilton
Member

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

[2023] AATA 2588

16 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Remedies