2119295 (Refugee)

2119295 (Refugee) [2023] AATA 2587 (11 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Morag Milton
CASE NUMBER:  2119295
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Tamara Hamilton-Noy
DATE:11 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Statement made on 11 July 2023 at 12:10pm
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – incorrect answers in visa application – citizenship, rights in Iran and illegal departure – information from uncle that some family members are Iranian citizens – discretion to cancel visa – country information – availability of some documentation and rights – exit procedures at airport – applicant likely a citizen or at least eligible – claim of statelessness maintained at hearing – length of residence, wife a permanent resident with application for citizenship in progress, and young child a citizen – physical and mental health and treatment – no voluntary return and possibility of indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant breached s 101 of the Act by providing incorrect answers about his country of citizenship, about his rights in Iran and in his claims to have departed Iran illegally. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant's Wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in that incorrect answers had been provided by the applicant in his protection application lodged on 5 August 2013 in the following respects:
·In his temporary protection visa application form, the applicant had stated at questions 19 and 20 that he was ‘stateless’. The information appeared to be incorrect because it appears his paternal grandfather holds Iranian citizenship and he is an Iranian citizen through operation of Article 976 of the Iranian Nationality Law.
·In the temporary protection visa application at question 24, the applicant stated he ‘was stateless at birth because my parents were stateless Faili Kurds’. The information appeared to be incorrect because it appeared the applicant’s paternal grandfather holds Iranian citizenship and his father appears to be an Iranian citizen through operation of Article 976 of the Iranian Nationality Law.
·In the temporary protection visa application at question 43, in response to the question of why he had left his country, the applicant stated that the ‘Iranian government never granted my parents Iranian nationality. My parents were unable to obtain an Iranian birth certificate and could not respectively gain any other sort of identity documents in Iran’. The information appeared to be incorrect because it appeared the applicant and his parents are not stateless, but are Iranian citizens.
·In the temporary protection visa application at question 44, in response to a question of whether he had experienced harm in Iran, the applicant stated ‘yes’ and stated that he had been denied fundamental rights and privileges held by an Iranian citizen, including access to employment, health care, banking, education and the protection of the Iranian state. The information appeared to be incorrect because evidence available to the Department indicated that the applicant is an Iranian citizen and, as such, his claims of persecution and discrimination as a stateless person are unfounded.
·In the temporary protection visa application at question 45, in response to a question of what he fears if he returns to Iran, the applicant stated that ‘I know that if I am expelled to Iran, I will not survive the mistreatments of the Iranian authorities. I will be investigated as to how and why I fled Iran’. This information appeared to be incorrect because evidence available to the Department indicated that the applicant is an Iranian citizen and, as such, his claims of persecution based on being a stateless person are unfounded.
·In the temporary protection visa application at question 46, in response to a question of who he fears will harm or mistreat him if he returns, the applicant stated that ‘I believe that if I return to Iran, I will be harmed by the Iranian authorities’. This information appeared to be incorrect because evidence available to the Department indicates that the applicant is an Iranian citizen and, as such, his claims of persecution based on being a stateless person are unfounded.
·In the temporary protection visa application at question 47, in response to a question of why he thinks this will happen to him if he returns, the applicant stated that ‘I am stateless and I left Iran illegally. I cannot return to Iran because I am not an Iranian citizen’. This information appeared to be incorrect as evidence available to the Department indicates that the applicant is an Iranian citizen and, as such, his claims of persecution based on being a stateless person are unfounded.
·In the temporary protection visa application at question 48, in response to whether he thinks the authorities can and will protect him, the applicant stated, ‘No, I lived in Iran for 25 years and was never given any protection by any Iranian authority. Faili Kurds are not represented in the Iranian government. No one cares for our rights. As a stateless person, I would not be able to have access to Justice System in Iran either’. This information appeared to be incorrect as evidence available to the Department indicates that the applicant is an Iranian citizen and, as such, his claims of persecution based on being a stateless person are unfounded.
The Tribunal had before it certificated information and was of the view that the certificate was valid. The certificated information was relevant to the following findings made by the Tribunal and the Tribunal discussed the substance of part of the information, where central to the Tribunal’s findings, with the applicant at the hearing.
The applicant maintained at the Tribunal at the hearing that he is a stateless Faili Kurd. He gave evidence to the Tribunal that he was born in Tehran and grew up and lived in Tehran during his time in Iran. He gave evidence to the Tribunal at hearing that his parents are cousins, both born in Iraq, who were married in Iraq and then came to Iran in 1980, living first in Ilam and later moving to Tehran. He gave evidence to the Tribunal that he has one brother who is also living in Melbourne, that his parents are currently in Tehran and that he has no other siblings. He told the Tribunal that he grew up as Shia Muslim but since arriving in Australia has decided he has no religion, he ‘just believes’. He stated that he finished school at primary school level and then worked in his father’s [shop]. He stated that the family spoke Kurdish and Farsi when he was growing up, and that his parents also speak Arabic. When asked, he stated he also can speak Kurdish Faili. The Tribunal observed that the applicant had had difficulty using a Kurdish Faili interpreter at a Department interview, which had caused the Department concerns about his claimed identity, to which he stated that he had used a Kurdish Faili interpreter in the camp. He maintained that he did not have any documentation in Iran because his parents didn’t have money to purchase anything. In response to the Tribunal’s observation that most people expelled from Iraq to Iran came with little and were eligible for white and green cards, the applicant stated that that is what he was told at the time and he has no understanding why they didn’t receive cards or identification. When asked what documents he could have obtained as a Faili Kurd, he stated he only knows that cards were issued to Kurdish Faili but they didn’t have these.
The applicant told the Tribunal that his father has [brothers]. His mother also has [brothers] and one of whom has passed away. He confirmed that [Mr B] is his uncle on his father’s side, who is currently living in Melbourne.
The applicant’s wife gave evidence at the hearing that she had met the applicant in Melbourne in 2016 within the Kurdish community and that they were married in 2018. The applicant’s wife gave evidence that she and the applicant speak Kurdish and Farsi at home. As to the applicant’s background, his wife stated that all she knows is that he was Kurdish Faili, ‘similar to herself’, and that he had no documents. The Tribunal observed that it had before it information suggesting some of the applicant’s family members are Iranian citizens and asked whether she wanted to comment on this. The applicant’s wife stated that she is not in a position to comment on whether the documents are real or fake, and her husband is not in contact with the people who provided them. When she met the applicant in 2016, he had no documents and when his brother was diagnosed, he didn’t want her to be aware of this. The hospital in Melbourne had wanted the applicant’s parents to visit his brother. but they couldn’t because they had no documents.
The Tribunal is prepared to accept that the applicant is of Faili Kurdish ethnicity and is from Tehran, Iran. The Tribunal accepts the applicant’s evidence about his father and mother’s siblings. However, for the following reasons, as discussed with the applicant at hearing, the Tribunal does not accept that the applicant is an undocumented Faili Kurd who was unable to access schooling or other essential services in Iran.
Firstly, the Tribunal discussed with the applicant the contents of an identity assessment he had undertaken with the Department in 2014, during which the Department had noted that the vast majority of Faili Kurds in Iran had been issued identity cards.[1] The Tribunal observed that only a tiny proportion of Faili Kurds in Iran didn’t have some form of documentation. The Tribunal observed that this had caused the Department to doubt the applicant’s claims and that it also caused the Tribunal to doubt that the applicant didn’t hold any documents in Iran. The applicant stated in response that he has nothing to hide and has consistently claimed to have said he is an undocumented Faili Kurd.
[1] DFAT, Status of Faili Kurd refugees and documentation issued to then in Iran, 19 October 2011.
The Tribunal considers it implausible that, if the applicant faced the range of difficulties he claims to have faced (lack of access to education, medical treatment and other services), he would not have investigated an avenue to gain access to these services. The applicant was eligible to seek documentation in Iran and the inconsistency of his claims with the above country information, prepared commensurate with the time the applicant was in Iran, causes the Tribunal to have doubts that he was an undocumented Faili Kurd in Iran.
Secondly, the Tribunal discussed with the applicant other findings made in the identification assessment in 2014, where the Department had found, based on information it had before it, that the applicant’s mother’s brother, [Mr C], is a citizen of Iran. The applicant stated in response that he is not sure about this.
The Tribunal observed that the applicant had told the Department at the identity assessment that some of his family members are Iranian citizens, and asked which ones he had been referring to. The applicant stated in response that [one of his father’s brother]’s son had told the applicant a long time ago that they had paid and ‘got their visa’ but he doesn’t know anything about the rest.
The Tribunal finds from this information that family members of the applicant on his mother’s side have obtained Iranian citizenship. The Tribunal considered it likely, given this finding, that the applicant also held Iranian citizenship. This also causes significant doubt for the Tribunal that the applicant was an undocumented Faili Kurd in Iran.
Thirdly, the Tribunal noted at the hearing that it had information before it, in the form of a written statement, from the applicant’s uncle [Mr B], stating that he is an Iranian citizen and that he misrepresented that he was a stateless Faili Kurd when he arrived in Australia. The Tribunal observed that this suggested that the applicant’s family members have Iranian citizenship and that the applicant was also eligible for citizenship. The applicant stated in response that if someone lies once, there is no reason to not lie again and again. The applicant stated that he was aware his uncle had provided other inaccurate information. He stated that his family doesn’t have any contact with his uncle’s family at present. When his uncle initially said he was stateless he obtained a visa and then, when applying for citizenship, his uncle’s visa was cancelled. The Department told his uncle that he needed to provide identification to show who he is. The applicant doesn’t know where his uncle obtained the documentation. He stated that his uncle ‘spent a lot of money on that one’. He stated that, as far as he is aware, his uncle is not an Iranian citizen.
The Tribunal accepted the evidence of the applicant’s uncle that he is an Iranian citizen, on the basis that his uncle had no motivation to disclose this and render himself more likely to face negative consequences in terms of his own visa. The Tribunal finds from this information that at least one family member on the applicant’s father’s side has obtained Iranian citizenship. The Tribunal considers it likely from this that the applicant either held Iranian citizenship or was eligible to hold Iranian citizenship. This causes further significant doubt for the Tribunal that the applicant was an undocumented Faili Kurd in Iran.
Fourth, country information commensurate with the time the applicant left Iran indicated that it was very difficult for individuals to leave through Tehran Airport on a fake passport. The Tribunal referred to this country information at the hearing and noted these difficulties arose partly because of the number of checks involved as one moved through the airport.[2] The Tribunal noted that this information also caused the Tribunal some doubt that an undocumented Faili Kurd could leave Iran on a fake passport at the time the applicant left Iran. The applicant stated in response that he knows a lot of people, including himself, who have left Iran with a fake passport. Iran is known to be able to create documents that are unable to be recognised by anyone as fake. His father spent a lot of money and the passport photo was his own photo. If someone searches on Google, they can pay and obtain documentation showing they have a PhD, degree or masters in any topic they want; they just have to pay for it. The explanation provided by the applicant did not alleviate the concerns the Tribunal had about the applicant’s ability to leave Iran through Tehran airport.
[2] Immigration and Refugee Board of Canada, ‘Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking such bribes’, 21 October 2013 at
The Tribunal has had careful regard to the post-hearing submissions made by the applicant’s representative, dated 11 May 2023. The Tribunal has also given consideration to the evidence of the applicant and his wife regarding an invitation, from the hospital treating the applicant’s brother, to the applicant’s parents to visit Australia to see their unwell son. Both the applicant and his wife submitted that the applicant’s parents were unable to accept the invitation and that this was evidence of their undocumented status. The Tribunal has also given consideration to letters of support provided on behalf of the applicant asserting that he did not have documents in Iran.
However, after weighing up the concerns the Tribunal had about the applicant’s claims as set out above, and in particular the weight the Tribunal places on the evidence given by the applicant’s paternal uncle, the Tribunal was not convinced of the genuineness of the claimed reasons for the applicant’s parents inability to travel to Australia or on the letters prepared on his behalf, from individuals who do not provide independent evidence of his status in Iran. The Tribunal is satisfied, having weighed up all of the evidence before it, that the applicant’s extended family members are Iranian citizens and that the applicant is also an Iranian citizen.
The Tribunal has therefore decided that there was non-compliance by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.

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 correct information
The Tribunal finds that the correct information is that the applicant is an Iranian citizen who was born in Tehran and who resided in Tehran. The correct information is that the applicant was not a stateless Faili Kurd without documentation in Iran but was an Iranian citizen.
The Tribunal weighs this factor in favour of cancelling the visa.
The content of the genuine document (if any)
The Tribunal finds that this is not relevant in this case as there are no allegations that the applicant has provided a bogus document. The Tribunal does not give this factor any weight.
Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document
The Tribunal finds that the applicant’s claims in the protection application related solely to his claims to be a stateless Faili Kurd. This Tribunal (differently constituted) found the applicant was owed protection on the basis that he would face discrimination, harassment and assault for reasons of his lack of nationality, his ethnicity as a Faili Kurd and for his actual or imputed political opinion. The Tribunal finds that the decision to grant the applicant a protection visa was based on incorrect information that he was a stateless Faili Kurd.
The Tribunal weighs this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The Tribunal finds that the applicant has maintained to the Department and to this Tribunal in his previous protection hearing that he is a stateless Faili Kurd.
The Tribunal weighs this factor in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant told the Tribunal that his wife is a permanent resident of Australia and has applied for citizenship. Their daughter is [Age] and was born in Australia. The applicant told the Tribunal that he was married in 2018 and is trying to make a life in Australia for his family and that he is currently working full-time despite his current medical concerns. The applicant gave evidence that his brother came to Australia two years after the applicant arrived and has been diagnosed with cancer. The applicant said he has been involved in supporting his brother’s medical care, including through chemotherapy which was very difficult to see, and that he has helped provide food and other support to his brother’s family.
The applicant’s representative submitted that the applicant is a contributing member of the Australian community, and that in the ten years he has lived in Australia he has established significant family, work and social ties to Australia. He has married an Australian permanent resident and they have a [Age child] daughter who, the applicant’s representative submits, is an Australian citizen. The applicant’s representative submitted that the applicant’s wife and child are heavily dependent on the applicant, as is his citizen brother.
The applicant’s representative submitted that the applicant has physical and mental health conditions that require ongoing treatment in Australia and that, following a motor vehicle accident in 2016, he requires a nerve blocking treatment to alleviate chronic back pain, which he will not be able to access in Iran. The applicant’s representative submitted that the applicant has experienced severe anxiety and depression arising from the cancellation of his visa, that he has a history of post-traumatic stress disorder, and that he will not be able to access the level of treatment he needs for his mental health in Iran.
The applicant told the Tribunal that he sees a psychologist usually once a month, and a chiropractor, and sees a specialist for nerve blocking for back pain. He had previously been prescribed medication for anxiety but this made him drowsy and he didn’t find it safe to work while on the medication so he stopped two years ago. The applicant provided medical documents to the Tribunal confirming he had been involved in a car accident in 2016 and had been suffering chronic lower back pain, referred pain to his lower limbs and PTSD since then. As of April 2023, the applicant was prescribed Nexium, Norflex and Panamax and had previously undergone radiofrequency denervation and medial branch blocking.
The Tribunal accepted the evidence given by and on behalf of the applicant about his current circumstances. The Tribunal finds that the applicant’s current circumstances weigh against cancelling the visa.
The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has maintained in a range of forums the incorrect information that he is a stateless Faili Kurd, including before the present Tribunal.
The Tribunal finds that this factor weighs in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate states that no other instances of non-compliance are known and the Tribunal accepts this as correct.
The Tribunal finds that this factor weighs against cancelling the visa.
The time that has elapsed since the non-compliance
The applicant’s representative submitted that the ten-year period that has elapsed since the protection visa application was lodged in 2013 is significant and should be afforded considerable weight. The Tribunal accepts these submissions, although notes the ongoing maintenance of the applicant about the incorrect information. Given this, the Tribunal does not place significant weight on the time that has elapsed since the initial non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has submitted, via a statement prepared for the Tribunal and through his representative, that he does not have a criminal record and has one demerit point on his driver’s licence. The delegate has noted that there are no known breaches of the law since the non-compliance and the Tribunal accepted this as correct, aside from the minor driving matter noted by the applicant’s representative.
The Tribunal finds that this factor weighs against cancellation of the visa.
Any contributions made by the applicant to the community
The applicant’s representative submits that the applicant contributes to Australian society through constructing homes, paying taxes, donating blood and plasma, and by supporting his family financially. The applicant’s trade as [an Occupation] is on the medium and long-term strategic skills list for skilled migration to Australia. The Australian Red Cross is regularly short of blood and plasma products. If the applicant were not in Australia his wife, daughter and brother would rely more heavily on government support to survive, at a financial cost to the community.
The Tribunal accepted the submissions made by the applicant’s representative and finds that this is to be given some weight against cancellation of the visa.
Other factors to be considered
While the above 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 cover such matters as:
·Whether there would be consequential cancellations under s 140.
·If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
·Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal accepts that there would not be any consequential cancellations under s 140.
The Tribunal accepts that the applicant has an Australian-born child. The applicant’s representative submits that it is not in the child’s best interest to be separated from her father and that reinstating the applicant’s temporary protection visa is the only way for him to remain in Australia with his child. The applicant’s representative submits that the negative impact of separation of children from their parents is substantiated by studies and that the separation of the applicant from his daughter would have serious and long-lasting detrimental effects on his daughter.
The Tribunal finds that the best interests of the applicant’s child are that the applicant’s visa not be cancelled. The Tribunal finds that this factor weighs heavily against cancellation of the visa.
The applicant’s representative submits that, even if the Tribunal finds the applicant is an Iranian citizen, he would still be at risk in Iran as a member of an ethnic minority:
·The British Home Office assesses that while the Constitution provides for equal rights for all people of Iran, in practice this is not extended to ethnic minorities. Kurds face systematic discrimination and barriers which affects their access to services such as housing, political office, employment and education.
·The US Department of State in 2019 described the government as having disproportionately targeted minority groups including Kurds for arbitrary arrest, prolonged detention, disappearances and physical abuse. These groups reported political and socioeconomic discrimination during 2018.
·Limitations in the mental health system in Iran include the ineffective role of therapists and other professionals, the involvement of non-experts, and budget and financial issues. DFAT in 2020 noted that Iran has had a national policy on mental health since 1986 which aims to increase access to mental health services but that, while services have improved, ongoing social stigma discourages people from seeking help. Private mental health services are available in Tehran but are prohibitive financially for the average person.
·Failed asylum seekers face questioning upon return to Iran. Sources suggest they are targeted and questioned at the airport, and are regularly put under long-term surveillance and face ongoing persecution from authorities.
The Tribunal had regard to the most recent DFAT report for Iran, which states that ethnicity remains a sensitive political topic in Iran and official and societal discrimination against minorities does occur. Ethnic minorities report political and socio-economic discrimination, particularly in relation to their ability to access economic and business licences, university admissions, job opportunities, permission to publish books in their languages, and housing and land rights. Ethnic minorities in pre-trial detention are subjected to more severe physical punishment or mistreatment than other prisoners, and account for a disproportionate number of political prisoners and executions on national security-related charges.[3]
[3] DFAT Country Information Report Iran, 14 April 2020 at 3.3 – 3.4.
DFAT assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination and may face denial of access to employment and housing, although they are unlikely to face violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved, or perceived to be involved, in activism is higher. This includes those advocating for greater political and cultural rights or speaking out against perceived violations.[4]
[4] DFAT Country Information Report Iran, 14 April 2020 at 3.7.
Kurds make up 10 per cent of the population of Iran.[5] DFAT describes that the authorities are highly sensitive to organised political activity by the Kurds. The Special Rapporteur on the situation of human rights in Iran in 2019 reported that Kurdish political prisoners charged with national security offences represent almost half of the political prisoners in Iran and constitute a disproportionately high number of those who receive the death penalty and are executed. International sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association. While Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, Kurds who are politically active are likely to attract adverse attention from the authorities. Those who advocate for greater rights, autonomy or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.[6]
[5] DFAT Country Information Report Iran, 14 April 2020 at 2.4.
[6] DFAT Country Information Report Iran, 14 April 2020, at 3.20 – 3.22.
The Tribunal accepts that the applicant is from an ethnic minority in Iran and that he faces a higher risk of official and societal discrimination than the general population in Iran as a result of this. The applicant has not claimed to be politically active or to be an advocate for matters that would bring him to the particular attention of the authorities. The Tribunal finds that the applicant’s ethnicity weighs moderately against cancellation of the visa.
Further, as the applicant arrived prior to March 2018, the Memorandum of Understanding on Consular Matters does not apply and the applicant therefore is unable to be returned involuntarily to Iran.[7] The applicant’s representative submits that, if the applicant’s visa remains cancelled, he is required to be detained under s 189 of the Act and that any power for the Minister under s 195A to grant the applicant a visa is discretionary rather than mandatory. The applicant has clarified in his statement that he will not return voluntarily to Iran and therefore the mandatory legal consequence to a cancellation decision would be indefinite immigration detention.
[7] DFAT County Information Report Iran, 14 April 2020, at 5.27.
The representative submits that the applicant would be subject to ss 46A and 48A of the Act, removing his ability to apply for another visa in Australia. Ministerial intervention is rare and the applicant would likely be precluded from applying for another visa in Australia. While the cancellation decision maker found that the applicant has a pending SHEV application before the Department, the time frame for this to be decided is unclear and the outcome uncertain. Further, to ‘defer’ a decision being made to the undecided SHEV application would abrogate the current Tribunal’s decision-making role in this matter. The representative submitted that the consequences of the applicant either being refouled to Iran or indefinitely detained should be given significant weight.
The Tribunal accepts that the applicant would not return voluntarily to Iran and that, in consequence, he faces indefinite immigration detention. The Tribunal accepts that a significant body of literature exists about the mental health impacts of prolonged immigration detention,[8] and finds that this factor weighs heavily against cancellation.
[8] For example, literature review undertaken on 26 studies in: M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382. The review indicated that the most common mental health conditions reported included anxiety, depression and post-traumatic stress disorder and that these were reported both during and following detention. Detention duration was found to be linked to increased severity of mental health symptoms, as was greater trauma exposure prior to detention.
The applicant’s representative submits that the applicant’s wife is a Faili Kurd with no right to return to Iran, that she was recognised as a refugee before arriving in Australia in March 2014 and that she and her daughter would face persecution and discrimination in Iran on the basis of their nationality, ethnicity and gender in Iran. The applicant’s representative referred to the applicant’s wife’s statement, in which she describes being heavily reliant on the applicant, having pre-and post-natal depression and a history of complex PTSD with dissociative features. The applicant’s wife will struggle raising their daughter on her own due to her mental health conditions and lack of income. The applicant’s representative further submits that the applicant’s brother is unwell and relies heavily on the applicant.
The Tribunal accepts from the documents and oral evidence of the applicant that that applicant’s brother has been diagnosed with terminal cancer and that the applicant provides regular assistance to his brother with medication, attendance at medical appointments and with emotional support. The Tribunal accepts the applicant’s wife and daughter are financially and emotionally dependent on the applicant. The Tribunal finds that the hardship caused to the applicant’s family members in Australia weigh heavily against cancellation of the visa.
Exercise of discretion
The Tribunal notes that, while it is required to have regard to each of the reg 2.41 factors, not all of them will be central or fundamental to every case. The weight to be given to any particular factor is a matter for the Tribunal and will vary from case to case (MIAC v Khadgi (2010) 274 ALR438 at [68]).
In this case, the Tribunal finds that the applicant has maintained claims to be a stateless Faili Kurd through his claims to the Department and through two sets of Tribunal proceedings. The Tribunal finds that if the applicant’s correct information had been known, he would not have been granted a protection visa. These factors weigh in favour of cancellation.
However, in weighing all of the relevant factors, the Tribunal places significant weight on the best interests of the applicant’s Australian born child, the impact of cancellation on the applicant’s immediate family and the impact on his brother who is facing a terminal health condition. The Tribunal also places significant weight on the prolonged immigration detention the applicant would face if the visa remains cancelled. The Tribunal finds that these factors weigh overall against cancellation. For this reason, the Tribunal has decided that, having regard to all of the relevant circumstances as set out above, the applicant’s visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
Tamara Hamilton-Noy
Member

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

[2023] AATA 2587

11 July 2023

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