2205106 (Refugee)

[2023] AATA 2390

2205106 (Refugee) [2023] AATA 2390 (5 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim

Ms Aya El Kady

CASE NUMBER:  2205106

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE:5 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 May 2023 at 11:32am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect answers given in entry interview and visa application – stateless Faili Kurd – relatives’ Iranian citizenship declared in interviews or applications, listing applicant as family member – citizenship and ground for cancellation conceded – discretion to cancel visa – fear of harm as secular/atheistic Faili Kurdish woman and returned failed asylum seeker – anti-government opinions and participation in protests in Australia – poor economic and human rights environment – departure on own, genuine passport – no profile of interest or genuine fear of harm – mental health diagnoses and treatment – deteriorating behaviours and vulnerability – physical health – turbulent relationship and separation from husband – young adult children permanent residents and young minor child a citizen – adverse impact of separation on applicant and best interests of minor child – non-refoulement and strong likelihood of indefinite detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 438(1)(b)
Migration Regulations 1994 (Cth), r 2.41

CASES
CSV15 v MIBP [2018] FCA 699
DFO19 v MICMSMA [2023] FCAFC 38
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in relation to a Protection visa application which was granted in 2012, and that delegate found the grounds for the cancellation outweighed other matters.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A], and her two adult children, [Mr B] and [Ms C].

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicant was represented in relation to the review.

7. 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

8. 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.

9. 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.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Background

11. [In] October 2010, the applicant arrived at Australia’s Christmas Island territory in the Indian Ocean as an illegal maritime arrival (IMA), seeking protection on account of being a Faili (Feyli) Kurd and living as a stateless and undocumented refugee in the Islamic Republic of Iran.

12. On 23 October 2010, the applicant attended an entry interview with an Australian official (with the assistance of an interpreter in the Faili Kurdish language). The applicant provided the name [the applicant]. She provided the details that she was born in Tehran on [Date]; that she was stateless; and that she did not travel with genuine identity documents. She further explained that she was ethnically Faili Kurdish and a Muslim. The applicant travelled with her husband and two children. She further advised that she had [brothers] and [sisters], all of whom where also stateless Faili Kurds.

13. On 28 November 2010, the applicant, as part of a Refugee Status Assessment (RSA) submitted a visa application form which included completed Form 80, a completed Form 866 and a signed Statutory Declaration. She was supported by the Immigration Advice and Application Assistance Scheme (IAAAS), and an interpreter in the Faili Kurdish and English languages

14. The statutory declaration stated she was a [Age]-year-old stateless Faili Kurd, born in Tehran, and that she feared returning to Iran.  Before she was born, her parents, brother and sister were expelled from Iraq by Saddam Hussein, and did not receive any identity documents or refugee cards when they entered in Iran. The applicant was able to attend school as she or her family paid fees and bribes to the school administration. They feared being discovered as Faili Kurds because Iraqis were responsible for the deaths of Iranian soldiers. Without identity documents the applicant’s family were unable to buy a house; did not have government health insurance; would not open bank accounts or borrow money from banks. When she married her husband, they were not able to register the marriage. In the past, the Basij detained the couple, accusing them of behaving immorally because they could not produce a proper certificate to demonstrate their marriage. If forced to return to Iran, she feared the Basij would accuse her of committing ‘zina’ or being sent back to Iraq.

15. On 1 December 2010, the applicant attended an interview with a departmental officer. The applicant repeated the written claims and added that she faced discrimination because she wore dark makeup and did not cover her hair properly.

16. On 17 February 2011, a departmental delegate was not satisfied that the level of discrimination the applicant would face as a female Faili Kurdish without citizenship would lead to the applicant facing persecution, and refused to grant the applicant a Protection visa.

17. On 15 March 2011, the applicant requested the Independent Merits Review (IMR) to review the decision.

18. On 20 February 2012, the IMR found the applicant to be owed protection predominately based on claims of being an undocumented stateless Faili Kurd.

19. On 8 June 2012, the Minister lifted the section 46a(1) bar to allow the applicant to lodge a Protection (subclass 866) visa application

20. On 31 May 2012, the applicant applied for a Protection (subclass 866) visa. The submitted forms and statutory declaration reflected her claims to be a Faili Kurd who was stateless.

21. A Protection visa was granted to the applicant on 14 June 2012.

    Relative’s visa application questioned the applicant’s statelessness claim

22. Following the grant of the applicant’s Protection visa, the Department became aware that applicants for Protection visas claiming to be related to the applicant were not stateless but citizens of Iran:

    ·     On 2 July 2013, when the applicant’s sister, [Ms D], was interviewed on arrival as an IMA, she advised the Department that she was an Iranian citizen and presented national identity documents to support her claims to be a citizen of that county, namely her original Iranian Birth Certificate and Iranian National ID card. [Ms D] also provided details of their family members which included the applicant, her other siblings and parents, indicating they were Iranian citizens;

    ·     On 28 August 2017, another sister of the applicant, [Ms E], completed Part C of Form 790C for a Subclass 790 Safe Haven Enterprise Visa (or SHEV). In that application, the applicant’s sister stated they were an Iranian citizen and presented to the Department their original Iranian Birth Certificate. It also listed all members of her family members which included the applicant and her parents to be Iranian citizens; and

    ·     On 7 September 2017, the applicant’s brother, [Mr F], completed Part C of Form 866C ‘Application for a Protection visa’. In that form, the applicant’s brother stated he was an Iranian citizen. He listed their immediate and extended family members which included the applicant and his parents indicating them to be Iranian citizens, born in Iran. He also submitted a copy of his Iranian National ID card.

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

23. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice (Notice of Intention to Consider Cancellation or NOICC), being the manner particularised in the notice, and if so, whether the visa should be cancelled.

24. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b). Section 101(b) relevantly states: 

    Section 101     Visa applications to be correct s101.

    A non-citizen must fill in or complete his or her application form in such a way that:

    (b) no incorrect answers are given or provided

25. During the RSA process which is outlined above, the applicant advanced claims that she was owed Australia’s protection obligations based on being a stateless Fail Kurds.

26. On 31 May 2012, the applicant applied for a Protection (subclass 866) visa. On 1 June 2012, you completed and signed Part C of the application form, ‘Application for Protection (Class XA) visa – Form 866C’ in which the applicant provided the following answers (in part):

    At Question 20 Your citizenship at birth

    Stateless

    Question 21: Your current citizenship (if different to at birth)

    Stateless

    At Question 22: Do you hold any other citizenship or are you a national of any other country?

    No

    At Question 23: If you are stateless, how, when and why did you lose your citizenship?

    My parents were expelled from Iraq under Saddam Hussein’s Regime.

    At Question 31 Have you ever had or used any other passports or travel documents?

    Yes

    Type of Document       Passport

    Document number       Unknown

    Country of document     Iran

    Name of passport       Self

    Where is it now?          Taken by Smuggler in Indonesia

    At Questions 42 and 43, which asked why the applicant left the country and what you fear may happen to you, you answered

    Iran and Iraq / Please refer to all information provide in support of my request for refugee status assessment and all information provided in support of my independent merits review.

    At Question 44: Have you experienced harm in that country?

    Yes

    Please refer to all information provide in support of my request for refugee status assessment and all information provided in support of my independent merits review.

    At Question 45: What do you fear may happen to you if you go back to that country?

    Please refer to all information provide in support of my request for refugee status assessment and all information provided in support of my independent merits review.

    At Question 52 How did you leave?

    Illegally

    Used false passport

27. At Question 11, 12 and 13 in Part B, the application for protection states all the names and dates of birth of the applicant’s parents and siblings and claims them to be all stateless. 

28. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107.

29. On 4 January 2022, the Department issued a Notice of Intention to Consider Cancellation in respect of the applicant’s Protection (Subclass 866) visa. The Tribunal received responses on 27 January 2022 and 28 February 2022. The applicant appointed a legal practitioner from Bardo Lawyers to represent them in this NOICC response.

30. The applicant’s NOICC response indicates the applicant accepts that he provided incorrect information about his nationality and identity and in his statement of claims for protection.

31. According to the legal submission dated 25 January 2022, the applicant concedes that she is indeed an Iranian citizen and not stateless, however she remains a member of the persecuted Faili Kurds minority in Iran; and that the incorrect information was provided by the applicant following the advice of the people smugglers at the time, and because she was terrified for the safety and lives of herself, her husband and two young children.

32. On 28 February 2022, a further legal submission was submitted along with a statutory declaration signed by the applicant. Dated 16 February 2022, the statutory declaration relevantly stated:

    Upon board the small fishing boat in Indonesia, the people smugglers asked all attendees why their nationalities were. Some people announced that they were Kurds from Turkey, some bring Fail Kurds from Iran like my family, and others nationalities that I cannot recall. We announced that we were all Fail Kurds and had Iranian Citizenship, which they knew since they saw our Iranian passports. Upon saying this, the people smugglers took our passports and said they we cannot say we have Iranian Citizenship as the Australian Government will deport us back to our country. They said they we must say we are stateless if we do not want to go back to Iran and continue to be harmed. They then ripped our passports and threw them in the sea. I remember this distinctly as they had just given us the ‘medication’ at this point and it did not kick in yet to disturb my memory.

    Terrified and traumatised, I listed to the people smugglers advice when I was interview by the Department, I felt that I had no choice, was dazed and recovering from the traumatic journey, and simply did not know any better at the time at I was a young [Age] year old mother of two, in survival mode, simply trying to protect her family. (sic – Tribunal)  

33. The applicant attended scheduled hearings with the support of her representative. The applicant again admitted the grounds for cancellation existed in his matter.

34. The applicant has provided the Department evidence of Iranian citizenship undermining his claim to be stateless which led to the granting of a Protection visa. The applicant’s written and oral admissions is that she has provided incorrect information about his nationality in a Protection visa application. The Tribunal is also satisfied the applicant was validly notified and the notice complied with s 107.  Accordingly, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

35. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

36. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

37. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    the correct information

38. In this matter, the correct information is that the applicant is not stateless and is an Iranian citizen at the time of application in May 2012. This is supported by the Iranian documentation confirming the status of the applicant’s siblings as an Iranian citizens in their own Protection visa applications. Claiming to be stateless and without any citizenship, the applicant admitted to the Department and the Tribunal during this cancellation process, that this was incorrect information. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled.

    the content of the genuine document (if any)

39. This case involves the applicant having provided incorrect answers on her visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant in this case and the Tribunal gives it no weight.

    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

40. In this matter, the grant of the visa in June 2012 to the review applicant was based wholly on incorrect information about the applicant’s lack of nationality in his country of former habitual residence, the Islamic Republic of Iran. Namely, the applicant argued that she faced a well-founded fear of being persecuted by the authorities and its discriminatory practices towards stateless Faili Kurds, and that this enlivened Australia’s protection obligations under the Refugees Convention. Had the applicant provided the correct information at the time of application or corrected the information before the grant of the visa, the Department is very likely to have reached a different and less favourable decision about whether to grant the visa. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled

    the circumstances in which the non-compliance occurred

41. As part of her response to the NOICC, as well as her written and oral evidence to the Tribunal, the applicant claimed the following about her circumstances in which the non-compliance occurred:

    ·     The applicant departed Iran in 2010 because the applicant and her family were from a poor area of Tehran, and they faced discrimination as Faili Kurds;

    ·     The applicant had experienced severe harassment by the Basij members because of her gender and ethnicity;

    ·     Smugglers arranged the applicant and her family to leave Iran on their Iranian passports and travel to Indonesia;

    ·     The smugglers prior to boarding and/or while on board a vessel traveling to Australia told the applicant and her family to destroy their Iranian identity documents and to deceive the Australian Government about their citizenship or risk being returned to Iran;

    ·     In transit to Christmas Island, the applicant and her family consumed anti-motion sickness medication provided to them by the smugglers and were generally malnourished and dehydrated, which affected the applicant’s state of mind;

    ·     The applicant was young at the age of [Age] and had two young children, and returning to Iran ‘would be the equivalent to death’;

    ·     When they were initially interview, the applicant and her husband told the authorities in Australia that they were stateless Faili Kurds because they feared being forcibly returned to Iran and she feared for the safety of her family; and

    ·     The applicant maintained the fabrication that she was a stateless right up until she lodged her visa application for a Protection visa in 2012 because she feared being persecuted if she was returned to Iran.

1. The Tribunal asked the applicant the reasons she maintained the fabrication that she lacked any nationality for two years, and given she had legal and interpreting support two years after she arrived and that she knowingly and deliberately misled the Australian authorities. The applicant repeated her fears of being returned to Iran.

2. The Islamic Republic was, and remains, ruled by a largely unaccountable government which has a shocking human rights record and is deeply resistant to international criticism. Income and wealth inequality was, and remains, pronounced. DFAT further assesses that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities. Those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment, and mistreatment. In the hearing, the Tribunal asked if the applicant ever joined any Kurdish or other political protests in Iran, to which she responded she had not, but her husband had. The applicant is not a person who has ever openly supported Kurdish self-determination or the rights of women, however it is accepted that did hold agenuine but not a deep personally held fear of being harmed based on her past political activity and that this fear was heightened by her ethnicity. 

3. On the other hand, the applicant departed Iran on her own passport without any harassment. There is no credible evidence to suggest the applicant was a person of interest to the authorities for any reasons at the time of non-compliance. As outlined below, the Tribunal found her urgent fears based on claimed past events lacking in persuasion. 

4. The Tribunal does not accept that the applicant holds a genuine, deep or urgent fear of the claimed fears that being returned to Iran or believed returning to Iran was the equivalent of death for herself or her children, or she faced a real chance of serious harm or areal risk of significant harm for any of the claimed reasons. The applicant (and her husband) claimed statelessness in order to obtain residency in Australia at the expense of the integrity of Australia’s humanitarian visa programme. The Tribunal does not accept the applicant’s state of mind was apprehended by any urgent or deep fears of being harmed based on her gender, ethnicity or other nexus reasons, when the non-compliance occurred. Neither does it accept there was any sense of duress at the time of non-compliance to wilfully fabricated critical claims because of her familial situation, age, mental health or any other claimed reason, either individually or cumulatively considered.

5. The Tribunal nonetheless places little and not a notable or considerable amount of weight in favour of the applicant genuinely fearing the poor economic and human rights environment in Iran which is exacerbated by poor and corrupt governance and international isolation.

   the present circumstances of the visa holder

6. The applicant’s present circumstances do not include being a stateless person whose country of usual residence is Iran. The applicant admits to providing the incorrect information outlined above but she also expressed some remorse for submitting such contrivances. The Tribunal places some, but not a notable or a significant amount of weight on the applicant’s remorse as a factor in favour visa not remaining cancelled.

7. The applicant has a number of mental health problems. The delegate referred to the applicant developing post-natal depression and that in October 2019, she was admitted into a psychiatric inpatient program at [Hospital 1]. Subsequent medical information, discharge summaries from [Hospital 2], indicates that the applicant had other mental health episodes in which she was diagnosed with serious psychological problems. Between September 2019 and October 2019, the applicant was being treated for adjustment disorder. Between December 2019 and March 2020, the applicant was being treated for depression and anxiety. Between October 2020 and February 2022 and April 2022 and June 2022 she was admitted into a mental health clinic with the principal diagnosis of dysthymia and Cluster B Personality Traits (emotional dysregulation and narcissistic personality traits). The medical information demonstrates an escalation in the treatment whereby, as of 2022, she was taking doses of Mirtazapine (for major depressive disorders), Aripiprazole (an antipsychotic for severe disorders) and Quetiapine (another antipsychotic for bipolar and major depressive disorders). Cluster B personality disorders are characterized by dramatic, overly emotional or unpredictable thinking or behaviour. They include antisocial personality disorder, borderline personality disorder, histrionic personality disorder and narcissistic personality disorder. Typically, childhood trauma, early child-parental relationships and even genetics all play a role in causing narcissistic and other Cluster B personality disorders.

8. The discharge summary from June 2022 listed as her psychosocial/contextual factors: marital discord, complex trauma, emotional dysregulation, unemployed, parenting stress, chronic sleep issues with frequent nightmares, chronic physical pain, and family conflict. The Tribunal also received written and oral submissions of the review applicant being admitted into psychiatric care after suicide attempts.

9. The Tribunal has discerned from the overall evidence that the applicant has deflected from her psychological and psychiatric diagnoses as somehow being triggered by recent evidence: the experiences of travelling from Indonesia to Australia on a small vessel; the recent birth of her youngest child; post-natal depression; financial stress; her father passing away in recent time; marital problems and even the cancellation of the visa itself – although she was hospitalised before this occurred. The review applicant posited, in the hearing, that she was ‘happy in Iran’, implying more recent events caused her otherwise long-standing mental health problems. In doing so, the review applicant did not realise she was inviting credibility concerns about whether she had any genuine past harm incidents compelling her to leave Iran. At other times, the Tribunal found it had to prompt the applicant about the impact of her behaviour or the implications of the visa not being reinstated on her family, indicating one of the symptoms of a personality disorder with narcissistic traits, namely feelings of self-importance and difficulties with empathising with other’s needs, desires or emotions.

10. In so far as the Tribunal is invited to presently assess the applicant’s state of mind, it is not satisfied that she fully understands or appreciates her diagnosed personality disorder as the underling driver of her deteriorating behaviours, including suicidal attempts or the impact it has on those around her. The Tribunal does not accept the level of mental health care in Iran, while available, will not be as adequate or as sophisticated as it would be in here in Melbourne with her family to support her. Without the continuity of psychiatric care in Australia, her personality disorder will become more problematic and even debilitating than it is currently, causing great emotionally turmoil for herself and family. It follows that the Tribunal places considerable weight on the review applicant continuing to access mental health treatments in Australia as a significant factor in not having the visa remain cancelled. 

11. There is also medical information that the applicant has suffered some musculoskeletal complaints, including a past disc prolapse and some current sciatica in her spine.

12. She has three children in Australia: two adult children, and a young minor child who is [Age] years old. Both the adult children have completed secondary school while attending fee-paying Catholic colleges. Her adult children are a credit to her and her husband. They have appeared to have thrived academically and are socially well-adjusted. Of note is the review applicant’s eldest child aged [Age], [Mr B], who struck the Tribunal as being mature beyond his years. Not least because he has taken on the challenging responsibilities of caring for his mother. This involves monitoring her behaviour and ensuring she attends appointments and takes her medication as prescribed, while advancing his own higher education. Should the review applicant be separated from her adult children, this would have an adverse impact on her mental health and the Tribunal places considerable weight on it in having the visa reinstated. 

13. It is clear from the evidence that the review applicant’s relationship with her husband has been turbulent, and that the turbulence predates the couple traveling to Australia. In the various submissions the applicant claimed to be married, separated, divorced and a sole parent.  At the scheduled hearing, the applicant and the witness (her husband), claimed that they were married but had been separated. While there is no suggestion of physical violence, the applicant candidly admitted concerned neighbours had alerted the Victoria Police due to a disruptive row, at least once. No family intervention order has been issued in relation to this union. As mentioned above, the submitted health information mentions marital and relationship conflict as behaviours associated with the review applicant’s personality disorder. There is also financial stress in this relationship. The husband of the applicant has two mortgages in his name, amounting to over 650,000 Australian dollars. He is currently paying down those loans on his own modest wage as [an Occupation] without his wife making financial contributions. Furthermore, should the applicant return to her country of nationality, the husband would also face the prospect of raising the youngest child alone, albeit with the support of his two adult children. Despite this, the relationship has endured without total breakdown and the Tribunal accepts that the relationship and the family in general would face less turmoil should this visa be reinstated. Accordingly, the Tribunal places significant weight on the stressors on the husband in favour of the visa being reinstated.

14. The Tribunal also notes that the applicant has relatives – [sisters] and a brother – who have migrated to Australia and that there are a number of supportive letters from friends submitted to the Tribunal indicating should the applicant return to Iran, she will be separated from them, causing some emotional distress.

15. Cumulatively considered, the Tribunal finds that those factors in her current circumstances, amount to being compelling and compassionate reasons in favour not having her Protection visa remain cancelled.

    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

16. For over a decade, the applicant had ample opportunity to admit to providing incorrect information to the Department in relation to her misleading identity as a stateless Faili Kurd. It was not until her response to a NOICC in 2022 that she admitted to providing incorrect information. The applicant did not provide any persuasive reasons for not correcting the record. As the applicant has maintained these contrivances for such a significant amount of time, the Tribunal places considerable weight on this factor in favour of the visa remaining cancelled.

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

17. According to the Department, there are no further instances of non-compliance by the former visa holder. The Tribunal places no weight on this factor in favour of the visa remaining cancelled.

    the time that has elapsed since the non-compliance

18. The non-compliance occurred when the visa holder lodged her Class XA Subclass 866 Protection visa application in April 2012. It is now May 2023. This is a significant amount of time. The applicant has also demonstrated to the Tribunal that she and her family have integrated into the Australian community, and is an individual who pays her taxes and otherwise abides by the laws of Australia. The applicant also demonstrated to belong a supportive network of of Kurdish Australians through supporting statements and the witnesses.

19. Therefore, this factor should be given significant weight in favour of the visa not being cancelled.

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

20. With no evidence of any criminal charges or convictions against the applicant’s name, there is nothing to suggest that she is not a person of good character. The Tribunal, therefore, gives this factor some weight towards the visa not being cancelled.

    any contribution made by the holder to the community

21. The applicant stated that her contributions to the Australian community include her status as a taxpayer and as a ratepayer to municipal authorities. The applicant also claimed that she and her husband have contributed to the Kurdish Australia by participating in community events.

22. The Tribunal accepts the applicant makes a small but meaningful contribution to Australian society. The Tribunal accordingly places a small amount of weight on this factor in favour of the visa not remaining cancelled.

    Discretionary considerations

23. The Tribunal has gone on to consider other factors where relevant on the material before it or as raised under policy.

    whether there would be consequential cancellations of other persons’ visas under s140

24. The review applicant’s youngest child is an Australian citizen, while the other family members are Australian permanent residents. According to the decision record, the applicant was a secondary visa holder when the Protection visas were granted to her, her husband and children, and that s 140 is not applicable to the other visa holders. The Tribunal is satisfied there are no other persons whose visas may be cancelled as a consequence of the applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. Should the applicant depart Australia, it is open to her to apply for an offshore Australian visa, but she would do so with no guarantee of success. The Tribunal places some weight on this factor in her favour.

26. Should the applicant’s subclass 866 visa remain cancelled, she would not be eligible to apply for another visa in Australia, unless the Minister intervenes to lift the section 48A bar, and face the possibility of being detained and then removed from Australia. The Tribunal places some weight on this factor in her favour.

27. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters (MOU). This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018, and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. The applicant, as an Iranian citizen, applied for a visa prior to the effect of abovementioned MOU. For this reason, she faces a strong likelihood of indefinite detention in Australia.

28. Indefinite detention includes holding people in detention facilities. This is also referred to as ‘closed’ detention. As well as holding people in closed detention, the Australian government uses a form of detention referred to as ‘community detention’, where people live in the community but in a specified place determined by the government (known as ‘residence determinations’), under certain restrictions. Home Affairs statistics as of January 2023 indicate that 1061 persons, including asylum seekers are in closed detention and 516 in community detention. The average days in closed detention is 806. By country of origin, the largest numbers of person in closed detention are from New Zealand, Iran and Vietnam; while the largest numbers of person in community detention by cohort are from Iran, Iraq and stateless persons.

29. The visa applicant suffers from a number of mental health symptoms and has been diagnosed, as outlined above. She has come to rely on her close relationship with her eldest child to assist her in accessing therapeutic appointments and undertaking prescribed pharmaceutical treatments. The applicant can be reasonably characterised as vulnerable in that her personality disorder has involved not just a pervasive pattern of grandiosity, arrogance, interpersonal entitlement, and a lack of empathy; but also a pattern of debilitating relationship conflict, suicidal ideation and hospitalisation.

30. A significant amount of psychiatric research on the impact of immigration detention on mental health concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. In particular the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[1]

    [1] CSV15 v MIBP [2018] FCA 699

31. The effect of either closed or community detention will have a deteriorating effect on her personality disorder and accompanying symptoms through social isolation from her family - especially her son who provides critical support to the applicant, and restricted activities. The Tribunal has found this troubling given the extensive amount time that has elapsed since her arrival in 2010. The Tribunal places considerable weight on this factor in her favour.

    Non-refoulement considerations

    Refugees Convention and complementary protection provisions

32. The review applicant’s recent statutory declaration dated 26 April 2023 maintains that she is a Faili Kurd. This statement and the accompanying legal submission have argued that Australia owes her its protection obligations under the Refugees Convention and the Act’s complementary protection provisions on the basis:

    ·Past incidents of harassment and harm in Iran because of her gender and her ethnicity;

    ·Her actual or implied political opinion based on her ethnicity as a Faili Kurdish and her sur place activities in pro-Kurdish independent movement in Australia;

    ·Her actual or implied political opinion based on anti-government political opinion based on her sur place activities at public protests in Australia;

    ·Her atheistic or secular outlook and membership of a particular social group, namely being an atheist who was formerly a Shia Muslim from Iran;

    ·Her membership of a particular social group, namely women at risk, and she will not have a male chaperone to escort her while transiting through public places; and

    ·Her status as a failed asylum seeker or forced returnee from a western country Iranian and her imputed apostasy because her children attended Christian colleges in Australia.

33. Firstly, the Tribunal has considered the applicant’s claims as on being forcibly or involuntarily returned to Iran as a failed asylum seeker.

34. In DFO19 v MICMSMA [2023] FCAFC 38, the Full Federal Court dismissed application for judicial review of decision by the Administrative Appeals Tribunal.[2] DFO19 claimed, among other things, to face harm as a failed asylum seeker. He said during the Tribunal hearing that he ‘cannot return voluntarily’ to Iran. In considering whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran under s 36(2)(aa) of the Migration Act 1958 (Cth), the Tribunal considered the prospect of both involuntary and voluntary return. It concluded, the Iranian government would not revisit its practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the date of a Memorandum of Understanding between Iran and Australia facilitating return of Iranians who arrived in Australia after this date with no legal right to stay (MOU). The Tribunal considered the Department would not return him involuntarily. If he persisted in not returning voluntarily, he would not return and as such would not face a real chance of serious harm (for the purposes of s 36(2)(a)) or a real risk of significant harm. The Tribunal in that matter also considered the circumstances if he were to return voluntarily, taking account of the circumstances he would face, if found he did not face a real chance of serious harm or real risk of significant harm. The FFC found not jurisdiction error.

    [2] DFO19 v MICMSMA [2023] FCAFC 38 Federal Court of Australia, Banks-Smith, Jackson and O’Sullivan JJ, WAD 304 of 2020, SAD 145 of 2020, 15 March 2023

1. The relevant claims and circumstances of the DFO19 and the applicant were similar as both arrived in Australia before the above-mentioned MOU was signed. For these reasons, the applicant does not face the prospect of facing a real chance of serious harm or a real risk of serious harm of being an involutory returnee and therefore, being subjected to the kinds of interrogations on arrival that failed asylum seekers. On the basis the Tribunal is not obliged to consider claims divorced from all practical reality, the Tribunal places very little weight Australia’s non-refoulment obligation under ss 36(2)(a) and 36(2)(aa) in so far as the applicant has no practical likelihood of being returned.

2. Secondly the Tribunal has considered whether Australia has any protection obligation to the applicant as voluntary returnee.

3. In this review of a cancellation of a Protection visa, the Tribunal notes that the applicant outlined to it that they had a number of incidents with authorities which involved maltreatment. None of the incidents in the past involved a level of harassment, discrimination or loss of liberty that would amount to serious or significant harm.  

4. Given the Tribunal is setting aside this matter under review, it will make the following non-exhaustive findings in this regard but it makes the following comments.

5. The Tribunal accepts the applicant to be a Faili Kurdish by ethnicity. The Tribunal has had regard to a 2018 joint report from the Danish Immigration Service and the Danish Refugee Council on Iran, which found that Kurds who assert their ethnic and religious identity are a target, as well as Kurds who engage in or are associated with political activities. Kurds who promote or are perceived as promoting separatism are also targeted, as are those who are affiliated with women’s rights. The Tribunal has also had regard to the UK Upper Tribunal guidance case of HB,[3] which is approved in the UK Home Office Guidance, issued in January 2019. It stated that even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment (of the IPCC).

   [3] HB (Kurds) Iran CG [2018] UKUT 430 (IAC), (heard 20-22 February and 25 May 2018 and promulgated 12 December 2018), available at >

   As a member of a Kurdish community organisation, the Tribunal does not discount the possibility that the applicant does not have a profile in Iran as a supporter of Kurdish specific causes whereby she will be considered as a separatist or a person of concern. Nor does it discount the suspicions Kurdish Iranians are held by many in authority whereby the applicant has a likelihood to be interrogated, detained, suffer significant physical ill-treatment, torture or long-term imprisonment. However, without an extensive history of such activities in Australia or whereby she is an office-bearer of such an organisation, the Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not a real chance or real risk as voluntary returnee. 

6. The applicant was raised as a Shia Muslim, which is typical of Faili Kurds. She claims that she rejected Islam and the Koran in recent years, and she describes herself as either agnostic or atheistic. She has not claimed to be an apostate to another religion, including Christianity, Zoroastrianism or the Bahai’ faith. The Tribunal acknowledges the country information from the 2020 DFAT report which states; ‘while 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 Shia 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 proselytization’. The Tribunal has also had regard to the DFAT assessment that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT further assesses that atheist who are open about their non-belief face a moderate level of official and societal discrimination.

7. The applicant did not claim to have any social media accounts espousing her agnostic or atheistic outlook. The Tribunal is not persuaded that the applicant’s current religious outlook amounts to them coming to the attention of the Iranian authorities as a voluntary returnee. Her lack of religiosity will not be conspicuous by her lack of fasting or attending mosque as such practices are common in Iran, even among Shia Muslims.

8. With regard to her failing to comply with Islamic dress code or not having a male companion or chaperone on return, the Tribunal accepts she will face some harassment by the Basij, the morality police or other members in authority. However, it does not accept that such harassment, even fines or temporary detention, will lead to a real chance of serious harm or a real risk of serious harm should she return to Iran as a voluntary returnee

9. Accordingly, the Tribunal assesses that the chance of such serious harm or risk of such significant harm will amount to a remote or far-fetched chance or risk but not a real chance or real risk based on her claims as a secular or former Muslim or as non-Muslim Iranian or as a non-conformist woman.

10. Neither does it accept that the applicant will face a real chance of serious harm, or a real risk of significant harm based on her children’s Australian education in Christian colleges or as a person imputed as an apostate from Islam to Christianity, or as a proselytising Christian in returning voluntarily to Iran.

11. However, the Tribunal acknowledges and accepts that the applicant holds genuine anti-government political opinions. The applicant has not presented any photographic or videographic material of her participation in anti-government protests or protests in favour of Kurdish separatism. Nonetheless it is accepted that she had done so as claimed. 

12. The Tribunal is not persuaded that the applicant faces a real chance of serious harm, or a real risk of significant harm based on her political activities in Australia.

13. DFAT reports that Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation. Social media accounts of well-known figures and celebrities attract particular scrutiny. Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times. The Tribunal accepts a wider net has been cast against protesters by the authorities as larger anti-regime protesters have proliferated throughout Iranian cities since the publication of the last DFAT report.

14. In the applicant’s accepted circumstances, as a voluntary returnee and based on her accepted but low-level sur place activities in the recent past, do not amount to her suffering a real chance or a real risk arising her anti-government political opinions coming to light and leading to serious or significant harm. The Tribunal notes the applicant has not participated in protests of any kind in Iran prior to her arrival. It does not accept the applicant is motivated to participate in anti-government protests in Iran, although she may feel some solidarity with other Kurdish and other citizens of Iran.  In this regard, the Tribunal does not accept the applicant has a real chance of serious harm for a nexus reason or a real risk of significant harm based on her political opinion activities in returning voluntarily to Iran.

15. When cumulatively considering the applicant’s circumstances as voluntary returnee from a Kurdish background, the Tribunal places some but not a significant amount of weight in Australia’s obligations of non-refoulement in favour of the review applicant.

    Rights of the Child

16. One of the principles under Australia’s obligations is for decision makers to consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. The PAM3 Guidelines state that “if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children”.

17. There is one minor child affected in this matter: the applicant’s Australian born child, [Miss G]. As she was born in Australia while her parents held Australian permanent residency, [Miss G] is an Australian citizen. Born on [Date], [Miss G] is not yet [Age] years old and lives with the applicant and her other children but not her biological father. It is possible that the applicant returns to Iran with her minor child and integrate into Iranian life while the applicant’s child is at the beginning of her education. However, this requires her to have the lawful permission from the applicant’s separated husband and it will require the minor child to be separated from her supportive adult siblings. It would be in the better interest of the minor child to remain in Australia, especially in the context of her mother’s ongoing treatment for a personality disorder is already underway in Australia. As the applicant’s Australian citizen child is of primary consideration, the Tribunal places considerable weight on this factor in favour of the visa not remaining cancelled.

    any other relevant matters.

18. As discussed in the hearing, on the Departmental file was adverse information of a Departmental record in which an informant contacting it in 2020.

19. Attached to the file were two non-disclosure certificates issued under s 438(1)(b) of the Act, stating that it was not in the public interest to disclose a specific folioed document as it was provided to the Department on a confidential basis, and because the provider of the information has not consented to its disclosure to the review applicant. The first certificate was issued on 12 April 2022. It was deemed to be invalidly issued by the Tribunal and the Tribunal requested a a new non-disclosure certificate be issued. On 23 March 2023, the Department issued a new non-disclosure document. The Tribunal is satisfied this later certificate was validly issued. Copies of the non-disclosure certificates were provided to the applicant’s representative during the scheduled hearing.

20. During the hearing, the Tribunal explained the gist of the adverse information, namely that an anonymous informant claimed that the applicant and other family members who were granted protection visas fabricated their claims to have well-founded fears of persecution in returning to Iran. The Tribunal explained that information is relevant as it would be the reason, or part of the reason, for affirming the decision to cancel the visa. The applicant expressed some surprise of the information given. The Tribunal went on to explain that the adverse information was not significantly relevant given the review applicant has admitted to providing incorrect information that led to the grant of her visa.

21. In the context of the applicant’s admission about her non-compliance at the time of application, the Tribunal places no weight on the adverse information either in favour or against having this visa being reinstated.

    Summary

22. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.

23. The non-compliance under s 101(b) in this matter was deliberately and knowingly dishonest and serious in nature. The principle of non-refoulement through forcible removal is not applicable to the applicant’s circumstances and her chances of serious harm and risks of significant harm are remote and not real or substantial, should she return to Iran as a voluntary returnee.

100.   Nonetheless, there has been a significant period of time that has passed since the non-compliance occurred. Moreover, the Tribunal has assessed the combined adverse impact of indefinite detention on the applicant and her diagnosed and severe personality disorder to be significant. It has also been of primary consideration that the cancellation of the visa will not be in the better interests of her Australian citizen child. Separation from this minor child and her other immediate family members would cause significant emotional and psychological injury to the applicant and her family. Otherwise, the applicant is of good character who requires the ongoing support of her family in Australia to benefit from the psychiatric treatments currently under way. Together, these are significant reasons in favour of the Protection visa not remaining cancelled.

101.   In summary, the Tribunal evaluates that there are more factors in favour of the visa being reinstated when weighed against those countervailing factors against its reinstatement.

102.   Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Brendan Darcy
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.

102Passenger cards to be correct

A non‑citizen must fill in his or her passenger card in such a way that:

(a)all questions on it are answered; and

(b)           no incorrect answers are given.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

105Particulars of incorrect answers to be given

(1)If a non‑citizen becomes aware that:

(a)     an answer given or provided in his or her application form; or

(b)     an answer given in his or her passenger card; or

(c)      information given by him or her under section 104 about the form or card; or

(d)     a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

(2)Subsection (1) applies despite the grant of any visa.

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.