2200441 (Migration)

2200441 (Migration) [2023] AATA 1866 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Hanan Haddad (MARN: 1461976)
CASE NUMBERS: 2200441, 2200494

MEMBER:Paul Noonan
DATE:19 May 2023
PLACE OF DECISION: Melbourne
DECISIONS: In relation to [Applicant 1], the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
In relation to [Applicant 2], the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
In relation to [Applicant 3], the Tribunal does not have jurisdiction.

Statement made on 19 May 2023 at 9.30am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in the visa application – nationality – stateless – Iranian and Iraqi citizenship – identity details – family composition – best interests of Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 48A, 101, 107, 109, 140, 189, 195A, 197C, 197D, 198
Migration Regulations 1994, r 2.41
CASES
CFE16 v MIBP; CFD16 v MIBP [2020] FCCA 1083
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This statement of decisions and reasons is regarding applications for review of two decisions made by a delegate of the Minister for Home Affairs on 4 January 2022 to cancel the applicants’ Subclass 155 (Five Year Resident Return) visas under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visas on the basis that the applicants had provided incorrect answers in certain respects in relation to their applications for Protection visas (granted prior to the applicants’ Resident Return visas), in breach of s 101 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visas should be cancelled.
[Applicant 1] is [an age] year old man who claims to be stateless and who was born in Esfahan, Iran. He claims his parents were born in Iraq but were expelled from Iraq into Iran in 1980 by Saddam Hussein’s regime. While they were initially issued green cards, these were cancelled in 2003 and they were issued with white cards that needed to be renewed every 12 months to allow them to stay in Iran. He married [Applicant 2] [in] July 2007 but was unable to register the marriage. He arrived in Australia with the name [Alias A] but subsequently changed his surname to [Applicant 1].
[Applicant 2] is [an age] year old woman who claims to be stateless and who was born in Esfahan, Iran. She claims her parents were born in Iraq but were expelled from Iraq into Iran in 1980 by Saddam Hussein’s regime. While they were initially issued green cards, these were cancelled in 2003 and they were issued with white cards that needed to be renewed every 12 months to allow them to stay in Iran. She married [Applicant 1] [in] July 2007 but was unable to register the marriage.
According to Departmental records, [Applicant 1] and [Applicant 2] arrived on Christmas Island [in] June 2010 as Irregular Maritime Arrivals. The Tribunal notes that [Applicant 2] was pregnant when she arrived and her son [Applicant 3] was born on [specified date]. All applicants were granted Protection visas on 3 May 2011 based primarily on their claims to have faced systematic discrimination and persecution in Iran due to their statelessness.
The Tribunal notes that [Applicant 2]’s son [Applicant 3] is now an Australian citizen so there is no material effect on him of the cancellation of this visa type or otherwise and an appeal with respect to a decision of a delegate of the Minister for Home Affairs, dated 4 January 2022, to cancel a Return (Residence) (Class BB) visa was heard by the Tribunal (differently constituted) with a decision made on 16 June 2022 that the Tribunal does not have jurisdiction in the matter (Tribunal case number 2200495) and accordingly neither does the Tribunal as presently constituted.
The applicants appeared before the Tribunal on 15 March 2023 in a combined hearing to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal indicated at the hearing that it proposed to prepare a single decision record covering all review applications. The applicants and their representative did not express any concerns with this approach.
For the following reasons, the Tribunal has concluded that the decisions to cancel the applicants’ visas should be set aside.
Non-disclosure certificates
The Department has placed restrictions on some of the material contained on its cancellation files given to the Tribunal by issuing certificates under s 375A of the Act, dated 18 January 2022. The certificates state that disclosure of information on the Department’s cancellation file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or would be likely to prejudice the effectiveness of those methods.
Where a certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. However, the Federal Court has held that a valid s 375A certificate does not override the Tribunal’s obligation to provide particulars of information under s 359A(1). Therefore, while the material subject to a s 375A certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its s 359A obligation.
In these cases, the Tribunal has had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties. The Tribunal also finds that no s 359A obligations arise in relation to the relevant material because the Department itself has disclosed to the applicants the gist of potentially adverse information contained in the relevant documents (to the extent that this informed the Notices of Intention to Consider Cancellation of the visas). The applicants provided responses to the disclosed information and the relevant matters have been discussed in the delegate’s decision records, copies of which were provided to the Tribunal by the applicants.
The Tribunal discussed these matters with the applicants and their representative at the hearing and they indicated they had no questions or concerns regarding the Tribunal’s approach.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
On 9 March 2020 the Department sent each of the applicants a Notice of Intention to Consider Cancellation (NOICC) which advised the applicants that their visa may be cancelled under s 109 because of concerns that they did not comply with s 101(b) of the Act. The applicants were advised to respond in writing, which each did in emails dated 17 March 2020.
In the present matters, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notices issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notices?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notices, being in the manner particularised in the notices, and if so, whether the visas should be cancelled.
The non-compliance identified and particularised in the s 107 notices in relation to s 101(b) was that each applicant had provided incorrect information in relation to their Protection visa application in certain respects.
[Applicant 1]
Specifically, the notice in relation to [Applicant 1] recounts that he made an application for a Protection (Subclass 866) visa on 2 May 2011, which was granted on 3 May 2011. The Tribunal notes that [Applicant 2] lodged her own separate Protection visa application which included the applicants’ son as a secondary applicant.
In Part B of the application (Persons included in the application and family composition), Question 1 asks for the applicant’s full name and date of birth. Question 10 seeks details of close relatives, who are in Australia at the time of the application, of any of the persons included in the application. Question 11 seeks details of close relatives who are not in Australia at the time of application.
In response to Question 1, [Applicant 1] stated that his name was [Alias A] and he was born on [DOB 1]. The Department contends this is incorrect as he used a different name and date of birth on social media and his sister’s child, [named], had advised the Department that she had changed her [family name] from [Alias A] to [Applicant 1’s family name], and her father (who is [Applicant 1]’s uncle) had likewise changed the family name in 2015, indicating the name was of significance and used prior to [Applicant 1]’s visa application by the extended family. Further, the Department notes that his brother had used [Applicant 1’s] surname […] upon arrival in Australia [in] June 2010, further indicating [Applicant 1] was known by this name prior to lodging his protection application.
In response to Question 10, [Applicant 1] stated that he did not have any close relatives in Australia at the time of application, which the Department contends is incorrect as he had a brother, [named], in Australia, who had arrived on the same boat as [Applicant 1].
In response to Question 11, [Applicant 1] stated that his mother, [named], was born in [year]. He subsequently contradicted this in a statutory declaration dated 5 September 2017 in which he declared his mother’s name as being [Alias B], and that she was born in [an earlier year].
In Part C of the application, Question 1 asks ‘What is your full name?’, Question 4 asks ‘What other names have you been known by?’ and Question 7 asks for the applicant’s date of birth. Question 8 asks for the applicant’s place of birth. Question 19 asks for the applicant’s citizenship at birth. Question 20 asks for the applicant’s current citizenship. Question 22 asks whether the applicant has a right to enter or reside in, whether temporarily or permanently, any country other than their country of nationality or their former country of habitual residence. Question 23 asks, ‘If you are stateless, how, when and why did you lose your citizenship?’ Question 41 asks, ‘Which country do you seek protection in relation to?’ Questions 42 to 46 ask why the applicant left the country they do not want to go back to; what they fear may happen to them if they go back to that country; who they think may harm/mistreat them; why they think this will happen to them if they go back; and whether they think the authorities of that country can and will protect them if they go back.
In summary, in relation to Part C, the Department contended that [Applicant 1] provided incorrect answers to Part C with respect to:
·Questions 4, as he was previously known by [Applicant 1’s family name], which he did not disclose. This was because his father and sister had changed their surname from [Alias A] to [Applicant 1’s family name] prior to his Protection visa claim being made.
·Question 7, as his declared date of birth was different to his social media date of birth and he did not provide any documentation with respect to his date of birth, despite Vic Roads advising that he had produced an Iranian driver’s licence when applying for a Victorian driver’s licence [in] April 2012, which was prior to his travel back to Iran undertaken [in] September 2012. The Department noted that country information reflects that to obtain an Iranian driver’s licence a person must be an Iranian citizen. As such, he could not be stateless as he claimed.
·Question 20, as he must have held a current Iranian citizenship given the licence evidence, and because his nieces declared Iranian citizenship and marriage certificates, which contain numbers consistent with Iranian national identity requirements. In addition, his sister claimed to have been an Iraqi citizen at birth. Further, the Department contended that he travelled to Iraq in 2012 without needing a visa, which indicated that he showed the border authorities evidence of his Iraqi citizenship, and that he had given contradictory evidence to the Department that he had not required a visa and then later that he had been issued with a paper visa but had discarded it.
·Question 22, in that he did have a right to enter or reside in both Iran and Iraq and that he had entered Iraq without a visa, indicating that he had shown evidence of Iraqi citizenship rights.
·Question 42 to 46, because he claimed that he feared persecution as he is a stateless person who had left Iran unlawfully, which was not correct as he had departed Iran through Imam Khomeini airport without incident and had since presented an official Iranian driver’s licence; this information combines to indicate that he departed Iran using official registered documents including an Iranian passport.
In the response to the NOICC of 9 March 2020, the representative submitted, in a combined submission in support of [Applicant 2] as well, that there was no non-compliance in the way described in the NOICC and asserted that the grounds for cancellation of the Resident Return visa are not made out and the visa should not be cancelled. In summary, in support of this assertion, it was indicated that:
·[Applicant 1] used his correct name in his protection application. He preferred to use a different surname on social media, and he chose the surname [Applicant 1’s family name] as it was linked to his father’s previous use of the name, and it has ancestral links. However, he was known by the surname [Alias A] in Iran and he simply did not mention the ancestral name in his Protection visa claim as he had been advised not to mention his brother, who was using the name [Applicant 1’s family name].
·He was aware of his brother’s presence on the boat with him but took bad advice from other refugees and decided not to declare his presence.
·He initially identified his mother by her nickname but was more precise later on and gave her correct name and date of birth.
·His niece is not an Iranian citizen and her marriage certificate is an Islamic certificate, which is not sufficient for government identification purposes and does not reflect her being an Iranian citizen.
·He forged an Iranian driver’s licence in order to obtain a Victorian driver’s licence. He facilitated this by bribing a person at the Iranian Embassy.
·His sister is not an Iraqi citizen and she provided a statutory declaration to this effect. It is indicated that he has Iraqi ethnicity but does not hold Iraqi citizenship. He travelled to Iran using an Iranian visa and then travelled to Iraq on pilgrimage (Muharram), when entering Iraq is eased for people from Iran. He was issued with a temporary paper visa which he threw away once his trip was complete.
The representative asserted that [Applicant 1] was stressed when he first arrived in Australia and took bad advice to withhold some information. He subsequently gave more detailed information in his citizenship application. He never intended to provide incorrect answers. He had language difficulties which disadvantaged him and caused errors when interpreting his name, date of birth and mother’s details.
Review of the cancellation decision
At the hearing the Tribunal observed that [Applicant 1] had conceded he had failed to declare his brother who travelled to Australia on the same boat as he did and who was a close relative in Australia at the time of his Protection visa application. Further, he conceded that he had provided incorrect details with respect to his mother and had not declared that he was also known by the name [Applicant 1’s family name]. The Tribunal also discussed [Applicant 1]’s claim that he had bribed an Embassy official with respect to his driver’s licence. The Tribunal noted that this would appear to be an extremely risky undertaking for the mere purpose of obtaining a driver’s licence, which may have resulted in him being charged with a serious offence and jeopardising his status in Australia. The Tribunal also noted he had not submitted evidence of this or presented the Iranian licence for scrutiny. [Applicant 1] submitted that he had required the licence for work purposes and so was keen to obtain it. The Tribunal considers it highly implausible that [Applicant 1] would undertake such an action for the purpose of obtaining a driver’s licence and risk being charged with a serious offence. The Tribunal considers it is far more plausible that he presented a genuine Iranian driver’s licence. The Tribunal also discussed [Applicant 1]’s departure from Iran through the main airport and that this may indicate he departed using a genuine Iranian passport because of the amount of security checks at the airport. Both [Applicant 1] and [Applicant 2] stated that they left Iran using fake Iraqi passports arranged by someone else. They could not provide any further details as to how this was arranged. The Tribunal finds this explanation for the applicants’ free exit from Iran highly implausible and considers it is far more plausible that they used Iranian identification to exit Iran.
The Tribunal also discussed the Department’s assertion that [Applicant 1]’s sister declared that she was born in Iran but was an Iraqi citizen at birth. The Tribunal notes that it has not been established that [Applicant 1]’s parents have been able to re-establish their Iraqi citizenship. The Tribunal notes that the Department cited Article 3(a) of the Iraqi Nationality Law number 26 of 2006 in the NOICC as evidence, which states that a person shall be considered Iraqi if they were born to an Iraqi. However, there is scope for at least some ambiguity here, and the Tribunal considers that it is possible that [Applicant 1]’s sister was referring to her heritage and lineage as claimed rather than explicitly meaning she is an Iraqi citizen.
With respect to his travel to Iraq, the Tribunal notes with concern [Applicant 1]’s contradictory evidence as to whether he travelled to Iraq with or without a visa. The Tribunal also notes that, according to country information cited by the Department from information obtained from the Iraqi embassy, foreigners of Iraqi origin, who can prove they were born in Iraq, were and still are exempt from obtaining a visa to enter Iraq. It is undisputed that [Applicant 1] used an Australian Titre De Voyage with Iraqi entry and exit stamps but no visa attached. The Tribunal notes that there is no country information cited with respect to the issuance procedures for visas to Iraq in 2012 in the Department decision, however, it is current practice for Iraqi visas to be stamped in passports, which is the usual practice worldwide, except for the issuance of electronic visas in recent times.[1] However, with respect to foreign passport holders, recent Iraqi Embassy information sets out that to be exempt from requiring a visa, a foreign passport holder must produce evidence they were born in Iraq, such as a birth certificate, which matches the place of birth recorded in their passport.[2] The difficulty in this case is that [Applicant 1]’s place of birth is recorded as Esfahan, which is a city in Iran. It is therefore at least plausible that [Applicant 1] may not have met this requirement, as he would not have been able to produce documentation showing his birth in Iraq and would not have been able to produce documentation matching his passport or Titre De Voyage information. As such, there is sufficient ambiguity with respect to this matter that the Tribunal has not reached a real state of satisfaction that [Applicant 1] travelled to Iraq using Iraqi identification and as such was exempt from the need to be issued with an Iraqi visa.
[1] Iraq Visa | Apply for an Iraq Visa | Iraq Visa Requirements | CIBTvisas Australia
[2] Visa to Iraq - london (mofa.gov.iq)

The Tribunal accepts the Department’s assertion that [Applicant 1] is an Iranian citizen and therefore he is not stateless.
The Tribunal has not reached a real state of satisfaction that [Applicant 1] is an Iraqi citizen as asserted by the Department.
The Tribunal finds that [Applicant 1] provided incorrect information in relation to Part B, Questions 1, 10 and 11 and in relation to Part C, Questions 4, 7, 20, 22 and 42 to 46 of the Protection visa application form.
Findings regarding the alleged non-compliance
The Tribunal has considered the information contained in the NOICC, the representative’s response to the notice, the oral evidence to the Tribunal of [Applicant 1], and other relevant evidence before it to determine whether the ground for cancelling the visa is made out.
The Tribunal notes that where more than one instance of non-compliance is described in the NOICC, only one instance of non-compliance is necessary to enliven the discretion.
For these reasons, the Tribunal finds there was non-compliance with s 101(b) by [Applicant 1] in the way described in the s 107 notice.
[Applicant 2]
Specifically, the notice in relation to [Applicant 2] recounts that she made an application for a Protection (Subclass 866) visa on 2 May 2011 including her [son] (born [specified date]) as a secondary applicant, which was granted on 3 May 2011.
The NOICC sets out that the Department considers [Applicant 2] provided incorrect information in her Protection visa claim at:
·Part C, Question 20, in that she does have citizenship of Iran as two of her paternal aunts and a paternal uncle have previously advised the Department that they are Iranian citizens. That country information indicates that, accordingly, she and her father would be eligible for Iranian citizenship. As she had resided in Iran since birth, logically, she would therefore have applied for Iranian citizenship.
·Part C, Question 22, in that country information reflects that her parents would have been able to pursue Iraqi citizenship and that she also travelled (with her husband) to Iraq without needing a visa, which indicates she showed evidence of her Iraqi origins to Iraqi border officials.
·Part C, Questions 41 to 46, in that she was not stateless and left Iran through Imam Khomeini airport, indicating she used official Iranian identification.
In the response to the NOICC of 9 March 2020, the representative submitted that there was no non-compliance in the way described in the NOICC and asserted that the grounds for cancellation of the Resident Return visa are not made out and the visa should not be cancelled. In summary, in support of this assertion it was indicated that:
·[Applicant 2] is unaware how her relatives obtained citizenship of various countries but suspects they bribed officials.
·If she held Iraqi citizenship there would have been no need for entry and exit stamps on her Titre de Voyage. She was issued with a paper visa but destroyed it at the end of her voyage.
·Her parents have tried to renew their Iraqi citizenship but this has not been possible due to insufficient records.
Review of the cancellation decision
The Tribunal accepts [Applicant 2]’s assertion that her own parents have not been able to re-establish Iraqi citizenship due to a lack of documentation as reasonably plausible. She agreed that some relatives have Iraqi and Iranian citizenships but this does not mean she has it and some of her relatives are also stateless like herself due to a lack of documentation. With respect to her past travel to Iraq and associated visa discussion, for the same reasons set out above with regard to [Applicant 1], the Tribunal has not reached a real state of satisfaction that [Applicant 2] is an Iraqi citizen as asserted by the Department.
The Tribunal canvassed [Applicant 2]’s departure from Iran and that her paternal relatives declared Iranian citizenships as recounted in the discussion and conclusions set out above in respect to [Applicant 1]. As set out above the Tribunal finds the claim to have departed Iran using fake Iraqi passports to be highly implausible.
The Tribunal accepts the Department’s assertion that [Applicant 2] is an Iranian citizen and therefore she is not stateless.
The Tribunal has not reached a real state of satisfaction that [Applicant 2] is an Iraqi citizen as asserted by the Department.
The Tribunal finds that [Applicant 2] provided incorrect information in relation to Part C, Questions 20 and 41 to 46 of the Protection visa application form.
Findings regarding the alleged non-compliance
The Tribunal has considered the information contained in the NOICC, the representative’s response to the notice, the oral evidence to the Tribunal of [Applicant 2], and other relevant evidence before it to determine whether the ground for cancelling the visa is made out.
The Tribunal notes that where more than one instance of non-compliance is described in the NOICC, only one instance of non-compliance is necessary to enliven the discretion.
For these reasons, the Tribunal finds there was non-compliance with s 101(b) by [Applicant 2] in the way described in the s 107 notice.
Should the visas be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notices given to the applicants under s 107 of the Act, it is necessary to consider whether the visas 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 applicants’ responses to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c).
The representative provided comments both in the response to the NOICCs and the Tribunal hearing process in the event that it was determined that either of the applicants had provided incorrect information to the Department. It was submitted that there are a number of circumstances that fall within the ambit of reg 2.41 of the MigrationRegulations 1994 (Cth) (the Regulations) and Departmental policy considerations that weigh heavily in favour of the visas not being cancelled.
The Tribunal has considered the prescribed circumstances, as set out in reg 2.41of the Regulations, as described below.
The correct information
The Tribunal is satisfied that the correct information is that [Applicant 1] and [Applicant 2] are citizens of Iran and not stateless. Further, it is satisfied that [Applicant 1] travelled with a close relative, his brother, to Australia in the same boat and he was in Australia at the time his Protection visa application was made. Further, it is satisfied that [Applicant 1] and his brother used different surnames and [Applicant 1] was at least also known by his currently used surname, which he did not declare. The Tribunal considers this information is very important, and if known to the Department at the time of the applications would have resulted in very different country information and assessment criteria being used in assessing their claims for protection. The Tribunal therefore gives this factor significant weight in favour of cancelling the visas.
The content of the genuine document (if any)
This prescribed circumstance is not relevant in the applicants’ cases because the s 107 notice relied solely on s 101, not on s 103 (which relates 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
The Tribunal finds that the decisions to grant the visas were based wholly upon incorrect information with respect to the applicants’ citizenships and therefore gives this factor significant weight in favour of cancelling the visas.
The circumstances in which the non-compliance occurred
At the hearing [Applicant 1] indicated that he had not provided some correct information as he had been badly advised by people on his boat. However, this misinformation constituted only a component of the non-compliance and the applicants have not conceded or expressed remorse with respect to fabricating their citizenship status. The applicants knowingly provided incorrect information to the Department that was relevant to their protection claims. The Tribunal gives significant weight to this factor towards cancelling the visa.
The present circumstances of the visa holders
[Applicant 1] and [Applicant 2] have now been in Australia for over 13 years. The available information indicates that they are well settled in Australia. They have undertaken volunteer positions in refugee areas and at their children’s school respectively. They have both submitted positive references. They have two minor children, [ages and gender specified]. Both of their children are Australian citizens.
The Tribunal places significant weight on the applicants’ present circumstances in favour of not cancelling their visas.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicants maintained the incorrect information with respect to their Iranian citizenships. This factor weighs in favour of cancelling the visas.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate records that there is no evidence of non-compliance by the applicants. The Tribunal gives this consideration little weight.
The time that has elapsed since the non-compliance
Much of the relevant non-compliance took place when the applicants provided information in support of their Protection visa applications in 2010. The Tribunal considers the long period in which the applicants have lived in the Australian community weighs against the cancellation of the visas. The Tribunal places significant weight on this factor in favour of not cancelling the applicants’ visas.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of the law by the applicants since the non-compliance and gives this consideration little weight.
Any contribution made by the holder to the community
The Tribunal finds that [Applicant 1] has undertaken some refugee and community volunteer work and [Applicant 2] has undertaken volunteer work at her local school. They have both worked and paid taxes. The Tribunal places some weight on this consideration with respect to not cancelling the visas.
Other factors – Departmental guidelines
While the factors in reg 2.41 of the Regulations must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. 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)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has considered relevant other factors in accordance with government policy, as described below.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations in these cases.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[3]
[3] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)
Best interests of the child
The applicants have two minor children both of whom are Australian citizens. Both children have spent their entire lives in Australia. The Tribunal considers that the children would suffer extreme hardship if their parents’ visas were cancelled. This could result in the parents being placed in immigration detention and having to consider the possibility of retuning to Iran. Neither of the children is familiar with life in Iran, having spent all their formative years in Australia, and separation from their parents or relocating to Iran with their parents would cause them extreme hardship and emotional turmoil.
The Tribunal places significant weight on this factor in favour of not cancelling the applicants’ visas.
Family unity
It is clear that a decision to cancel [Applicant 1] and [Applicant 2]’s visas would threaten the integrity of a family unit that is functional, providing benefits to the Australian community and providing a positive environment for two minor children. The Tribunal places significant weight on this factor in favour of not cancelling the applicants’ visas.
Australia’s non-refoulement obligations
Recent amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3), which provides a statutory scheme for considering non-refoulement obligations at the time of potential removal. The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
In these cases, [Applicant 1] and [Applicant 2] made valid applications for Protection visas and were granted those visas on 3 May 2011, following protection findings. In these circumstances, s 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the Protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non-citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non-citizen requests removal.
The decision to grant the applicants Protection visas has not been quashed or set aside, nor have the applicants requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicants no longer engage protection obligations under s 197D(2).
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicants are 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 applicants’ Protection visas 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.
In such a scenario cancellation may lead to prolonged detention for these reasons. The Tribunal gives this factor significant weight towards not cancelling the visas.
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 of a cancellation decision
If the visas remain cancelled and the applicants exhausts their appeal rights, as unlawful non-citizens they may be detained under s 189 of the Act. They are then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made as noted above, the Act does not require or authorise their removal as per the recent amendments: s 197C(3).
If the applicants’ Resident Return visas remain cancelled, they would be prevented (under s 48) from making further visa applications onshore, except for a select few prescribed visas including Protection, Partner, Bridging and Medical Treatment visas (as the applicants have not been refused a Protection visa or had a Protection visa cancelled, they would not be prevented (under s 48A) from making a further Protection visa application). The factual information before the Tribunal does not indicate that the applicants are eligible for a Partner or Medical Treatment visa. As Iran does not accept involuntary returns with respect to the dates of their protection applications, they could not be returned to Iran if a decision is made under s 197D that a protection finding would no longer be made. This means the applicants may face detention unless they make a further Protection visa application which is successful, the Minister personally decides to grant them a visa under s 195A of the Act, or they acquire a right to enter and reside in another country. The Tribunal has rejected the delegate’s finding that the applicants are Iraqi citizens.
As noted above, Iran does not accept involuntary returns. At the hearing, the applicants indicated that they see Australia as their home and are strongly committed to remaining in Australia with their children and raising them to be good Australian citizens.
As it considers the prospect of lengthy or indefinite detention likely in the applicants’ cases, the Tribunal gives this factor significant weight against cancelling the applicants’ visas.
EXERCISE OF DISCRETION
The Tribunal has found that the applicants have given incorrect information, and with regard to the circumstances in which the non-compliance occurred and the subsequent behaviour of the applicants in not coming forward proactively to correct the incorrect information, the Tribunal considers these factors weigh strongly in favour of cancellation. In contrast, the applicants’ present circumstances, the significant time that has elapsed since the non-compliance occurred, the contribution made by the applicants to the Australian community, the mandatory legal consequences of cancellation, Australia’s international obligations on the Convention on the Rights of the Child and the general hardship that would be experienced by the applicants and their minor children, both of whom are Australian citizens and both of whom were born in Australia and have never lived anywhere but Australia, weigh strongly against cancellation. Factors such as other instances of non-compliance, any breaches of the law, and whether removal would breach Australia’s international obligations against refoulement are neutral and as such do not weigh against or in favour of cancellation.
In weighing these factors against each other, the Tribunal has taken into account the fact that the correct information, the circumstances in which the non-compliance arose and the applicants’ failure to proactively correct the incorrect information are significant matters because they go to the heart of the integrity of the immigration program. However, these factors do not necessarily overwhelm or take on greater prominence than the other factors. There is nothing in s 109 or reg 2.41 that compels such an approach and indeed the observations of Judge Reithmuller in CFE16 recognise that the best interests of the child are a primary consideration “against which even serious defalcations by parents or other adults must be weighed”.[4]
[4] CFE16 v MIBP; CFD16 v MIBP [2020] FCCA 1083

In this case, the lengthy period that has elapsed since the non-compliance, which has resulted in the applicants forming significant ties with the Australian community; the birth of their two children, both of whom are Australian citizens, and the best interests of the children; and the potential legal consequence of prolonged detention weigh against cancellation. These matters, when taken together, particularly given that the best interests of the children should be given primary consideration, make this a strong case not to exercise the discretion to cancel the applicants’ visas.
Conclusion
The Tribunal has decided that there was non-compliance by the applicants in the way described in the notices given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visas should not be cancelled.
DECISIONS
In relation to [Applicant 1], the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
In relation to [Applicant 2], the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
In relation to [Applicant 3], the Tribunal does not have jurisdiction.
Paul Noonan
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 1866

19 May 2023

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