2203201 (Refugee)

2203201 (Refugee) [2023] AATA 1016 (24 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Kourosh Momeni (MARN: 0955242)
CASE NUMBER: 2203201

COUNTRY OF REFERENCE: Iran
MEMBER:Wayne Pennell
DATE:24 February 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 24 February 2023 at 4:10pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – Faili Kurds – stateless – identity documents – Iranian citizenship – conversion to Christianity – Australian citizen children – best interests of the children – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 101, 107, 109, 140, 189, 198
Migration Regulations 1994, r 2.41; Schedule 4, PIC 4013
CASES
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the first named applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa on the basis that the first named applicant (‘the applicant’) provided incorrect information and answers to her application for a protection visa and therefore she did not comply with section 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of section 140(1) of the Act. As no decision was involved in the visa cancellation under section 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 9 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor A], [Pastor B], [Mr C], [Mr D], [Ms E], [Ms C] and [Mr E].
The applicants were represented in relation to the review and the Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
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 applicant has failed to comply with sections 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 section 109 of the Act is conditional on the Minister issuing a valid notice to the applicant under section 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in section 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 section 107 of the Act and that the notice issued under section 107 complied with the statutory requirements.
Section 438 Certificate
The Tribunal has been provided with the Department’s file in relation to the cancellations of the protection visas held by the applicants. The Department has placed restrictions on a document contained within that file and issued a certificate pursuant to section 375A of the Act.[1] Subsequently, that certificate was revoked and another certificate pursuant to section 438 of the Act was issued.[2]
[1]Certificate issued 10 March 2022.
[2]Revocation of section 375A certificate and issuing of a section 438 certificate took place on 20 January 2023.
The purpose of the certificate being issued was the disclosure of a nominated document would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
During the hearing, a copy of the section 438 certificate was provided to the applicant’s representative. The certificate was signed and clearly relates with the state public interest reasons on the certificate. Neither the applicant or the applicant’s representative made submissions and the certificate’s validity was not challenged.
The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the document to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the applicants.
Background information
By way of background, the applicant was born into a Shia Muslim family of [size]. She was raised in a remote and less privileged village of [Village 1] near the border of Iran and Iraq. When growing up she experienced many limitations such as hardship and distributed treatment. The second applicant is also from Iran. His parents were expelled from Iraq by the Saddam Hussain regime but were able to receive Iranian identifications and gave Iranian nationalities to the second applicant and his siblings.
The applicants married in 2009. About five months into their marriage, neither applicant could see any prospective of a successful and safe life in Iran. They had heard that Australia needed cheap labour and they decided to travel to Australia.
The second applicant was the first to leave Iran. He flew to [Country 1], and met with people smugglers. He then boarded a boat and travelled to Australia by sea. It was planned that when he arrived in Australia, he would work and pave the way for the applicant to join him. However, after about five months without her husband, the applicant became miserable, lonely and unbearable because of his absence.
Because she was in Iran without her husband, there was conflict between her family and her husband’s family as each of the families wanted her to stay with them. People started assuming that her husband was gone forever and even men who had proposed to her before she married her husband started to approach her for a relationship and marriage. During this time, she was sexually assaulted within her own home by her neighbour.
In October 2010, the applicant made the decision to travel to Australia. She travelled to Tehran, then to [Country 1]. She met a person she described as the ‘trafficker’ and paid him a fee. He told her that when she arrived in Australia she should introduce herself as a Faili Kurd who did not have any identification documents. She was also told that halfway across the ocean in the boat she should drop her passport into the ocean or otherwise the Australian authorities would send her back to Iran on the next flight. If that happened she would be imprisoned in Iran as a person who dishonoured the Islamic Republic of Iran.
After leaving [Country 1] in a boat with many other refugees, they travelled for about three or four nights before they arrived as Christmas Island. The Department’s records show that she arrived at that location [in] October 2010 as an illegal maritime arrival.
The applicant claimed that an interpreter told her to claim that she was a Kurd, and she should tell the Department that she has no passport or identifying documents. She was told to do this or otherwise she would be returned to Iran. She claimed that even though she did not like to be untruthful, it seemed that she had no choice.
The applicant recalls filling out a form but was told by the interpreter to stop filling it out and claim to be illiterate. She had already half completed the form and she handed the form to the interpreter to finish. The interpreter told her to claim that she had studied at [a location] which is an education program for old illiterate people usually taught in mosques.
She claimed that she was shocked and fearful by what the interpreter told her, and she did not know what to do. She told him that she could not do such thing and she wanted to talk about her real life which she thought would qualify her for a protection, but the interpreter told her that everybody was claiming to be stateless, and she had to do the same.
The Department’s records show that on 2 November 2010 the applicant participated in an entry interview in which she claimed she was a stateless Faili Kurd and that she had no lawful right to reside in any country.
The applicant claims that she felt she had no choice but to hide the truth. She said that doing that was a stupid blunder because deep inside, she always had regrets being untruthful.
The applicant was later reunited with the second applicant and learnt that he had made the same stateless claims that she did.
At a later time,[3] she applied for a refugee status assessment. As part of that process, she participated in an interview.[4] During that assessment process, she repeated her claims that she was a stateless Faili Kurd and a Shia Muslim and she had never lived in any other country, and she does not hold citizenship of any country. She went on to claim that her husband, the second applicant, was also a stateless Faili Kurd and a Shia Muslim, and like her, he did not have a right to citizenship or a right to reside in any other country.
[3]On 7 January 2011.
[4]On 10 January 2011.
The applicant further claimed that because she was stateless, she and the second applicant were constantly harassed and discriminated against by the Iranian authorities, in particular the Basij. She claimed that she had a well-founded fear of returning to Iran because the Iranian government and the police would not protect her because of her nationality and ethnicity as a Faili Kurd of Iraqi descent.
At the conclusion of the assessment,[5] a delegate found that she met the definition of a refugee, and she was allowed to apply for a protection visa.[6] Subsequently,[7] she lodged an application for a protection visa. In doing so, she included the second applicant as a dependant applicant.
[5]On 17 May 2011.
[6]Migration Act 1958 (Cth), s 46A(2).
[7]On 26 July 2011.
Within her application for protection visas, there were numerous questions which required truthful answers in respect to the primary and second applicants’ personal details, citizenship, and the reasons or claims as to why they were seeking protection visas. Those questions were answered by the applicant. She also provided a statutory declaration in support of her application.[8]
[8]Statutory declaration declared, dated and signed 7 January 2011.
In that statutory declaration she claimed that she was Faili Kurdish and although her parents were born in Iraq, they were expelled from Iraq in 1980. She did not think that her parents had citizenship in Iraq. She said that although she was born in Iran, she was not an Iranian citizen.
The applicant deposed in the statutory declaration that she and her parents lived in [Village 2]. About 100 hundred families lived in the same village, with only nine or ten of the families being Faili Kurdish families. The other families were Persian Iranians or Kurdish Iranians.
She deposed that people in the village said that her family did not belong in Iran, and they were called Iraqis. During the Iran-Iraq War, the people of the village said her family were the reason for the war, and because they were Iraqis, the applicant’s family should not be in Iran. She said that she and her family are not Iranian or Iraqi, they are Faili Kurdish.
She went on to describe that in the period of about the late 1990s, the Iranian authorities did not renew their green card and since then, she did not have white card, so since that time she had no identification documents, and neither did her husband have a white card.
The applicant further deposes that she stayed home all the time because she did not have documents and was afraid of being stopped by the Basije and asked for identification. She could not return to Iran because she feared for her life and her safety and because she had no documents, she had no right to live in Iran.
She did not feel safe in Iran especially after what happened to her. She outlined an incident whereby her neighbour entered her house through an open window and raped her. She said that she constantly lives in fear that if she returned she would be raped again. She also claimed that she feared that because she had no documents the Iranian government and Iranian authorities would not offer her protection because the Iranian government does not protect Faili Kurdish.
Having carefully considered the information provided by the applicant, the Department assessed that she met all of the requirements for protection visas to be granted to her. Her husband was also granted a protection visa as a member of the applicant’s family unit.[9]
[9]Protection visas issued on 27 July 2011.
Almost four years later, both applicants lodged applications for Australian citizenship.[10] The processing of that application took additional time. During the processing of those applications, the applicant disclosed to the Department that she and the second applicant were not stateless.
[10]Applicants for Australia citizenship lodged on 10 August 2015.
She disclosed that she originally claimed to be stateless because she had been influenced by people she met when she arrived in Australia. She felt that she had no choice because she feared being sent back to Iran; and she feared retribution from other refugees who considered that their cases might be refused if she provided the correct information.
She added that she has since converted to Christianity and because she had provided that incorrect information, this has challenged her conscions and faith.[11]
[11]Disclosure made on 22 October 2019.
Subsequently,[12] she provided to the Department:
(a)Her birth certificate issued by the Ministry of Interior, Islamic Republic of Iran showing that she was born on [date] in [Village 2], [specified location];[13]
(b)Her Iranian national identification card issued by the Ministry of Interior, Islamic Republic of Iran and was valid [until] 2012;
(c)Her Iranian driving licence issued by the Law Enforcement Forces of the Islamic Republic of Iran [in] 2008;
(d)The second applicant’s birth certificate showing that he was born [name variant] on [date] in the city of Bakhtaran (Kermanshah), [named] Township.[14]
(e)The second applicant’s Iranian national identification card. The card had been issued in the name of [name variant] by the Ministry of Interior, Islamic Republic of Iran and was valid [until] 2009;
(f)A marriage certificate showing that the applicant and the second applicant were married [in] December 2009. The certificate was issued [in] December 2009 by the Judiciary, State Organisation for Registration of Deeds and Real Estates, Islamic Republic of Iran.
[12]Additional documents were provided on 28 November 2019 along with English translations.
[13]Issued on [date].
[14]Issued by the Ministry of Interior, Islamic Republic of Iran on [date].
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 section 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 section 107 notice was non-compliance with section 101(b) of the Act which requires that a non-citizen must fill in or complete their visa application form in such a way that no correct answers are given or otherwise provided.
The section 107 notice[15] alleged that as part of her application for a protection visa, the applicant provided incorrect information in respect to the following:
·Question 20: Under the section 'Citizenship' the applicant was asked to provide her current citizenship at birth. She responded by indicating ‘N/A’.
[15]Section 107 notice dated 28 February 2022.
This answer was incorrect. Since being granted a protection visa, she provided the Department with documentation revealing that she was an Iranian citizen. The documents included an Iranian national identification card, shenasnameh and driving license, of which some of the documents have been verified as genuine. The documents, particularly the shenasnameh, indicated that she held Iranian citizenship at birth.
·Question 21: Also indicated under the section ‘Citizenship’, the applicant was asked whether she held citizenship of, or were a national of any other country. She answered ‘no’ to that question.
·Question 22: She was also asked if she had a right to enter or reside in, whether temporarily or permanently, any country or countries other than her country of nationality or her former country or countries of habitual residence. She also answered ‘no’ to that question.
The answers given to questions 21 and 22 were incorrect. As outlined above, since being issued with a protection visa, she submitted to the Department evidence that she is a citizen of Iran. Those documents indicate that at the time of the visa application, she held Iranian citizenship and had a right to lawfully reside permanently in Iran as an Iranian citizen.
·Question 42: Under the section 'Your reasons for claiming protection': Why did you leave that country, the applicant referred to an attached statutory declaration. In that document, she deposed that she left Iran because she experienced discrimination as a stateless Faili Kurd. She said that she had no right to reside in Iran and she did not have a green card, a white card nor any identity documents. She went on to outline that her husband worked illegally and that she stayed home all the time because she had no documents and feared being stopped by the Basij and asked for documents. She further claimed that she had no access to public hospitals.
That answer is incorrect. Since being granted with a protection visa, the applicant has disclosed to the Department that she and her husband were both documented Iranian citizens. Clearly, at the time of making the application, she had a right to lawfully reside permanently in Iran as an Iranian citizen and was afforded access to services health care and employment which are available to all Iranian citizens.
·Question 43: The applicant was asked what she feared may happen to her if she went back to that country;
·Question 44: She was asked who she thought may harm/mistreat her if she went back; and you if you go back;
·Question 45: She was asked why she thought this would happen to her if she went back;
·Question 46: She was asked did she think the authorities of that country can and will protect her if she went back, and if not, why not.

In answering questions 43, 44, 45 and 46, the applicant deposed in her statutory declaration that as a stateless Faili Kurd, she experienced discrimination. She went on to say that she had no right to live in Iran because she was a stateless Faili Kurd, and she has no identity documents.
She claimed that she could not return to Iran because she feared for her life and safety, particularly after she had been allegedly sexually assaulted. She said that because she had no documents, she could not report to sexual assault to the police.
It was her claim that the Iranian government and the Iranian authorities would not offer her protection because Faili Kurds were not protected by the Iranian government. She feared that if she returned she would be harmed by the Basij because she was an undocumented person. This meant that because of her status, she would be unable to access services such as hospital care. She added that because her husband was also stateless, he had to work illegally.
For the reasons below, the Tribunal finds that when carefully assessing the circumstances of this case as they had already been outlined, the applicant did not comply with section 101(b) of the Act.
Department’s assessment and NOICC
When assessing the information discussed, the delegate decided that the applicant had provided incorrect information and answers in her application for a protection visa and therefore she had not complied with section 101(b) of the Act. A notice of intention to consider cancelling (‘NOICC’) her visa under section 109 of the Act was provided to her.[16] She was also afforded with an opportunity to comment on the non-compliance and to give written reasons why her visa should not be cancelled.
[16] Provided on 11 January 2022.
In responses to the NOICC from her authorised migration agent, the Department was informed that she concedes and admits that she had provided incorrect information and she had no objection to a conclusion being reached that she had not complied with section 101(b) of the Act. Also provided by the applicant were a number of character references from people who know her and her husband. She also provided their certificates of Baptism.
The delegate reached a conclusion that she had provided incorrect answers to questions 20, 21, 22, 42, 43, 44, 45 and 46 of her application for a protection visa, and as such she had not complied with section 101(b) of the Act. The delegate found that there were grounds for the cancellation of her protection visa pursuant to section 109 of the Act.
The delegate considered that those answers already discussed were incorrect because of the reasons already explained. That is, since being granted a protection visa she has provided evidence to the Department that she is an Iranian citizen. She also disclosed that she had in her possession at the time of her protection visa application, an Iranian national identification card, shenasnameh and driving license. Those documents were later forensically verified as being genuine Iranian documents.
The Tribunal observes that the applicant does not contest the delegate’s findings and she acknowledged that she had not complied with the provisions of section 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act by the applicant in the way described in the section 107 notice.
The Tribunal’s Review
The applicant’s migration representative provided to the Tribunal submissions in respect to the applicant’s earlier voluntary declaration on 29 November 2019 to the Department where she disclosed that she had provided incorrect information. This was reiterated to the Department in a letter on 24 February 2022. Included with the submissions were letters of support from Senior Pastor [Pastor B] and [Pastor A] (‘Childrens’ Pastor’) from [Church 1], along with [Ms D], [Ms E], [Ms E], [Mr C], [Mr C] and [Mr D]. Also provided was a medical certificate for her husband which described that because he had been under too much stress in his life, he had a medical condition described as anxiety, panic attacks, unresolved grief and depression.
The applicant told the Tribunal that since arriving in Australia, she and her husband have three children. They are aged [age], [age] and [age] and they were all born in Australia. The two oldest children attend the local school where they live, and these children are well aware of the circumstances of this matter.
A total of seven witnesses gave evidence at the hearing for the applicant. They were all the people who had provided references, with the exception of [Ms D]. All of those witnesses who gave evidence spoke about how they had known the applicant and her husband for a number of years, and they all mutually attended the same church. For the weekend church services throughout any given year, the applicant attended a vast majority of those services. Although her husband attends less frequently, he was considered by the witnesses as a regular attendee to those services.
The evidence given by those witnesses was given in a consistent and frank manner, and the Tribunal found that each of the witnesses to be reliable and credible.
The applicant told the Tribunal that she was not contesting the delegate’s findings in respect to her providing incorrect information in her application for a protection visa.
The applicant also said that should she and her husband be forced to return to Iran with their three young children, because they had left the Islamic faith and embraced Christianity and were Baptised, they would be punished. If that were to happen, the fate of their children would be unknown as the children were all born and raised in Australia to Australian values and culture and a Christian religion.
FINDINGS AND REASONS
When assessing the evidence, the Tribunal finds that the applicant provided incorrect information in response to questions 20, 21, 22, 42, 43, 44, 45 and 46 of her application for a protection visa. In responding to those questions, the applicant claimed that she was a stateless Faili Kurd. This is incorrect because she was an Iranian national. In respect to questions 42 to 46, she claimed that her reasons for not being able to return to Iran and why she feared going back was because she did not have a green card, or a white card and she could not access public hospitals. Her husband had to work illegally and because they had no documents they feared being stopped by the Basije. She went onto claim that because she had no documents, she feared for her life if she had to return to Iran.
The applicant does not dispute that she provided incorrect information in regard to those questions discussed above, and for those reasons the Tribunal finds that she did not comply with section 101(b) of the Act in the way described and outlined in the NOICC.
Should the visa be cancelled?
Because the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under section 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to section 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under section 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice about the non-compliance and have regard to any prescribed circumstances.[17] The prescribed circumstances are set out in regulation 2.41 of the Regulations. Briefly, they are:
· the correct information
[17]Migration Act 1958 (Cth), s 109(1)(b) and (c).
The correct information is that the applicant is not a stateless Faili Kurd, and neither is her husband. The correct information is that both the applicant and her husband are Iranian nationals who did not suffer any harm on the basis of their claimed statelessness or Faili Kurd origin.
The correct information is that neither the applicant nor her husband was undocumented, and the correct information was that her parents are Iranian citizens.
Therefore, the Tribunal gives this factor weight in favour of cancellation.
· the content of the genuine document (if any).
There is no issue relating to a genuine document.
The Tribunal gives this factor neutral weight.
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.
The applicant was granted the protection visa based on her claims she that she was a stateless Faili Kurd, and she was a person who suffered harm in Iran because she was stateless, and she feared future harm on that basis. Fundamentally, the delegate was satisfied that the applicant was owed Australia's protection obligations on the basis of being a stateless Faili Kurd and the Tribunal is satisfied that the decision to grant the applicant the protection visa was based wholly or partly on the incorrect information she provided in the protection visa application.
The Tribunal gives this factor weight in favour of cancellation.
· the circumstances in which the non-compliance occurred.
The non-compliance occurred when the applicant claimed to be a stateless Faili Kurd who had suffered harm and would suffer harm on that basis. In response to the NOICC and to the Tribunal, the applicant has conceded that for protection, she fabricated the claim she and her husband were stateless Faili Kurds. The Tribunal notes that it was the applicant who brought this issue to the attention of the Department and voluntarily made the disclosure that she had provided incorrect information. The applicant has expressed remorse and apologised.
She claimed that after arriving in Australia, an interpreter told her to claim that she was a Kurd, and she should tell the Department that she has no passport or identifying documents. She was told to do this or otherwise she would be returned to Iran. She claimed that even though she did not like to be untruthful, it seemed that she had no choice. She also feared being sent back to Iran; and she feared retribution from other refugees who considered that their cases might be refused if she provided the correct information.
The Act provides that a visa can be cancelled if a non-citizen provides incorrect information. This is a demonstration that the legislation views the provision of incorrect information in an application for a protection visa to be serious enough for the cancellation of a visa. Essentially, the applicant claimed that she provided the incorrect information because this was the advice she received from the interpreter after she arrived in Australia. She was also advised by the smuggler to dispose of her passport.
Australia has a demonstrated commitment to granting protection visas to those people of whom Australia has protection obligations. That commitment is derived from the multiple international instruments of which Australia is a signatory, including the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention. When considering the potentiality of incorrect information in an application to destabilise the very essence of the migration program, the Tribunal considers that the provision of incorrect information for a protection visa is a serious issue.
The Tribunal gives this factor weight in favour of cancellation.
· the present circumstances of the applicant.
The applicant is now aged [age] and her husband is aged [age]. They were married in Iran and since arriving in Australia and being issued with protection visas, they have three children aged [age], [age] and [age]. Those children are Australian citizens. The Tribunal was told that because their protection visas were cancelled, neither of the applicants are working, and nor have they access to any social services. They rely on the generosity of friends and associates from within the community for their needs.
During the time that the applicant and her husband have been in Australia, they have integrated very well into the Australian society and have established significant lasting relationship and strong ties within the community. The Tribunal heard evidence from a number of people who established friendships with her and her husband, including [Pastor B] of their church and the Childrens’ Pastor [Pastor A].
The Tribunal gives this factor significant weight against cancellation.
· the subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.
It was the applicant who voluntarily provided disclosures to the Department that she had provided incorrect information when applying for protection visas. The Tribunal considers that she has co-operated with the Department in every way, including responding to the NOICC within the prescribed timeframe. It is the Tribunal’s view that she has fully engaged with the Department in respect to the cancellation process.
The Tribunal gives this factor significant weight against cancellation.
· any other instances of non-compliance by the applicant known to the Minister.
There are no other instances of the non-compliance by the applicant and under those circumstances the Tribunal gives this factor neutral weight.
· the time that has elapsed since the non-compliance.
The applicant ‘s non-compliance occurred in January 2011 when she lodged her protection visa application. It is the Tribunal’s consideration that the passing of thirteen years is a lengthy and significant period of time during which she and her husband have significantly established themselves and their children in Australia.
The Tribunal gives this factor significant weight against cancellation.
· any breaches of the law since the non-compliance and the seriousness of those breaches.
The Tribunal is not aware of the applicant or her husband breaching the law and this factor is given significant weight against cancellation.
· any contribution made by the holder to the community.
Provided in support of the applicant and her husband were letters of support, with the authors of those reports providing oral testimony at the hearing. The Tribunal accepts the evidence of those witnesses in respect to the overall good character of the applicant and her husband, along with the contribution they make to the care, welfare, development and education of their three young children. The Tribunal also accepts that they are significantly engaged in their local church parish.
The Tribunal gives this factor considerable weight against cancelling the visa.
Other factors
While those 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.[18] 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.
·whether there would be consequential cancellations under s 140.
[18]Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [68].
If the applicant’s visa is cancelled, then her husband’s visa will be cancelled. As discussed elsewhere in these reasons, they are parents to three young children who were all born in Australia after they the applicant and her husband were issued with protection visas.
The Tribunal gives this factor considerable weight against cancelling the visa.
·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. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The Tribunal recognises that since their arrival in Australia, the applicant and her husband have become the parents to three children. Those children are aged [age], [age] and [age] with the oldest two children attending primary school, and all are Australian citizens. Both the applicant and her husband provide for the care, welfare and development of the three children.
If forced to return to Iran, the Tribunal understands that neither the applicant nor her husband has any family in Australia to care for the children. Therefore, the children, who are Australian citizens, will travel with them. This will impose difficulties for the applicant in applying for visas for the children to live in Iran.
The Tribunal is satisfied that if that were to occur, there may be difficulties that arise in the future. The Tribunal’s view is that if the applicant’s visa is cancelled, this will have an affect the best interests of all the children. The eldest child is in [grade] at school and the middle child is in [grade]. They both attend school in Australia, and they will both have significant difficulties in integrating into any type of educational facility in Iran, particularly having regard to English being the only language they speak.
The Tribunal considers that any cancellation of the applicant’s visa will have a substantial impact and implications on the best interests of her children.
The Tribunal gives this factor considerable weight against cancelling the visa.
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
A protection visa is, in part, a mechanism by which Australia provides protection from situations which engage its non-refoulement obligations under the 1951 Convention relating to the Status of Refugees[19] and the 1967 Protocol relating to the Status of Refugees[20] as well as under other international treaties. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm and the obligations are not confined to section 36(2) of the Act.[21]
[19]Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954.
[20]Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, entered into force 4 October 1967.
[21]Ibrahim v Minister for Home Affairs [2019] FCAFC 89, [103].
It is worth outlining that a relevant component of Article 33 of the Refugees Convention provides that no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion; unless there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.[22]
[22]United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (‘Refugees Convention’).
In respect to the applicant’s claims of Christianity, she described that both she and her husband have been Baptised. This was confirmed by the evidence of [Pastor B], the applicant, her husband and their three children regularly attend church services at [Church 1]. The Tribunal accepts and finds that her involvement, along with her husband and childrens’ involvement in the faith as Christians is present and continual.

[Pastor B] gave evidence referring to the applicant and her family’s baptism and attendance at [Church 1]. He confirmed that it was his belief that the applicant and her husband are committed to Christianity and are genuine Christians. The Tribunal accepts his evidence.
Evidence was also heard from a number of witnesses who corroborated [Pastor B]’s evidence in respect to the applicant’s involvement in Christianity. Their evidence was consistent with the applicant’s evidence.
The Tribunal is satisfied that given the consistency between the applicant’s evidence and the evidence provided by [Pastor B] and the other witnesses, and the Tribunal accepts that she and her husband are Christian converts.
The Tribunal particularly notes that available for its assessment is the DFAT's Country Information Report on Iran which provides:[23]
[23]The DFAT Country Information Report, Iran, 14 April 2020.
Religiously-Based Charges
3.73Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
3.74Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
3.75While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
3.76Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
3.77DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
Upon carefully considering that country information, on the basis that they had converted to Christianity, the Tribunal is satisfied that there is a real chance that the applicant and her husband would suffer serious harm if they returned to Iran. Accordingly, the Tribunal finds that there are non-refoulement obligations and that any forced return of the applicant and her husband would mean a breach of those obligations.
The Tribunal gives this factor considerable weight against cancelling the visa.
·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.
If the applicant’s visa was cancelled, she and her husband would become unlawful non-citizens and could be liable for detention under section 189 of the Act and removed under section 198 of the Act if they do not voluntarily depart. They would also be affected by Public Interest Criterion 4013 preventing them from being granted a visa for a specified period.
Having regard to the issues already identified in respect to the applicant and her husband being the parents of three young children, the Tribunal places significant weight on this factor against cancellation.
·Any other relevant matters (including the degree of hardship that may be caused to the applicant and any family members).

100. There are no other relevant matters.
101. Careful consideration has been given to the applicant’s circumstances and the non-compliance with the provisions of the Act and the Tribunal views her provision of that incorrect information very seriously. She has accepted that she provided incorrect information and the Tribunal particularly notes that it was her own initiative to disclose to the Department that she had provided incorrect information. The Tribunal finds that factor to be in her favour.
102. It is the Tribunal’s task to carefully weigh up all of the circumstances and relevant considerations. In doing that, the Tribunal has individually and cumulatively considered all of the material before it.
103. In its consideration, the Tribunal finds that there are very limited grounds for cancellation with other significant factors weighing heavily against cancellation.
104. Notwithstanding the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under section 107 of the Act, When regard is given to all the other relevant circumstances, the Tribunal concludes that the applicant’s visa should not be cancelled.
DECISION
105. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
106. The Tribunal has no jurisdiction with respect to the other applicant.
Wayne Pennell
Senior 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 1016

24 February 2023

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