2205230 (Refugee)

2205230 (Refugee) [2023] AATA 4717 (2 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mrs Roya MAJD (MARN: 0701239)
CASE NUMBER: 2205230

COUNTRY OF REFERENCE: Iran
MEMBER:James Lambie
DATE:2 November 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 02 November 2023 at 9:59am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – age details – relevance of age to visa grant – best interests of the child – limited evidence of contact with the child – non-refoulement obligations – sexual assault claim – abandonment of Islam – political activities in Australia – decision under review affirmed
LEGISLATION
Family Law Act 1975, s 60
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 46, 48, 97-105, 107-109, 189, 424
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant, [named], had not complied with s 101(b) of the Act because, in his application for a Protection visa lodged on 27 February 2012, he provided incorrect information regarding his date of birth, claiming he was a minor at the time. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 February, 6 March, 10 August and 14 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in that, in his application for a Protection visa lodged on 27 February 2012, [the applicant] provided incorrect information in response to the following questions:
·At question 1 of Part B of Form 866 he provided the following information
Family name: [specified]
Given Names: [specified]
Date of birth: [DOB 1]
·At question 20 of Part B of the form he signed a declaration stating, in part:
I declare that
§The information I have supplied on or with this form is complete, correct and up-to-date in every detail;
§I understand that if I have given false or misleading information … any visa issued may be cancelled.
·At question 7 of Part C of the form he provided his date of birth as [DOB 1] and stated that he was [under] age;
·At question 65 of Part C if the form he signed a declaration claiming that he had provided correct information and understood that provision of false or misleading information might lead to visa cancellation.
The information and declarations were said to be incorrect because he had provided incorrect information as to his date of birth, the correct date being [the same day in an earlier year].
At the hearing on 14 February 2023, [the applicant] conceded that he had provided an incorrect date of birth and made the associated declarations, and that the grounds for cancellation existed.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance s 101(b) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa to or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
[The applicant] submitted the following evidence to the Department in response to the s. 107 notice:
·His Iranian birth certificate with English translation, showing his correct date of birth;
·His Iranian national identity card with English translation, showing his correct date of birth;
·[Bank 1] loan document dated 16 March 2018;
·[Bank 1] personal loan statement for period 1 July to 256 November 2020;
·His individual tax returns for the years ending 2016 to 2019;
·ATO notice of assessment for year ending 2015;
·ABN registration letter dated 18 September 2017;
·Bundle of four [Employer 1] pay slips for 8 November to 5 December 2021;
·[Employer 1] certificate of completion of online induction dated 19 March 2014;
·Queensland birth certificate for his daughter, born [DOB 2];
·Bundle of photographs of him with his daughter, former partner and his parents;
·Statutory declaration of [Friend A], dated 7 December 2021;
·Screenshots of two photographs said to depict his [Relative A] with [Official A] and with Iranian and [Country 1] officials;
·Letter from [Doctor A], [Surgery 1], dated 7 December 2021;
·Letter from [Doctor B], [Surgery 2], dated 3 October 2019;
·Screenshot of text messages from [a medical service] regarding epilepsy monitoring;
·Report by [Psychologist A], [Health Service 1], dated 12 February 2021;
·Character reference letters of the applicant dated 8 September 2019, 11 October 2018, 9 September 2019, 21 October 2019, 24 September 2019 and 18 October 2019; and
·His statutory declaration, dated 9 December 2021.
[The applicant] submitted the following additional material in support of his Tribunal application:
·Letter from [Agency 1], dated 18 May 2022.
·Letter from [Doctor A], [Surgery 1], dated 5 July 2022;
·Letter from [Psychologist A], [Health Service 1], dated 14 October 2022;
·A statutory declaration from [Friend A], dated 7 October 2021.
·Character reference from [Friend B], dated 11 February 2023;
·Photographs and video of the applicant participating in political events;
·Screenshots of an electronic payment record to his former partner, partial [Bank 1] bank statement of 1 December 2022, and an [social media] profile page;
·Statutory declaration from him, undated.
·Screenshot of email to him from [Lawyers 1] re parental orders, dated 22 July 2022;
·Letter to him from [Lawyers 2], dated 8 July 2022;
·Letter to him from [Lawyers 3], dated 2 March 2023;
·Email to him from [Lawyers 4], dated [date], with screenshot of electronic payment to same, dated 7 February 2018;
·Screenshot of text message from his former partner, 10 July 2023;
·Screenshot of [social media] archive;
·Letter of support from [Official B], [Community Organisation 1], dated 24 July 2023;
·Link to “[a named]” [social media] page;
·Screenshots of partial [Bank 1] bank statement of 1 June 2023 and 15 electronic payment records to [a named person] between 28 May 2018 and 31 January 2023;
·His representative’s submissions, dated 10 August 2023;
·Letter to him from [Lawyers 3], dated 11 September 2023;
·Screenshot from his [Bank 1] app, 18 August 2023;
·His statutory declaration, dated 11 September 2023;
·Screenshots of text messages and photographs from his former partner, July to September 2023;
·Letter from [Doctor A], [Surgery 1], dated 12 September 2023; and
·Certificate by [a mediator] under s 60I of the Family Law Act 1975, dated [in] November 2020.
The Tribunal has taken all of this material into account.
On 26 May 2023, the applicant’s representative requested that I recuse myself from the hearing and determination of this matter. This request was formally withdrawn at the hearing on 10 August 2023.
The correct information
The correct information is that [the applicant] was born on [the same day in an earlier year], rather than [DOB 1] as he claimed in the Protection visa application lodged on 27 February 2012. The gap between the date of birth he originally supplied and the one he subsequently admitted is significant, for reasons explained below. I give the fact of the provision of false information significant weight.
The content of the genuine document (if any)
The cancellation decision is based on the provision of false information rather than false documents and this factor therefore does not arise on this application.
Whether the decision to grant a visa to or immigration clear the visa holder was based, wholly or partly on incorrect information
In his statutory declaration of 23 September 2023, [the applicant] submitted:
The grant of a protection visa was not based on my age. My protection visa was issued because my life was in danger. I did not have freedom of religion or belief in Iran and I had been assaulted by the Basij.
The Tribunal notes that [the applicant’s] statutory declaration of 8 January 2012 in support of his Protection visa application complains of violent conduct towards him by his [Relative A] in the context of him being a juvenile at the time, living at home with his parents. The Protection Obligations Evaluation (POE) Outcome, which in 2012 found him to be owed protection obligations, and to which the applicant’s representative referred in respect of the non-refoulement considerations discussed below, included the following findings:
·The claimant is [an under age] youth who is in the process of forming his own views on religion and acceptable social behaviour [POE Outcomes, p 12];
·I am mindful of the claimant’s young age and I am not confident that he would be able to defend himself adequately if confronted by the authorities [POE Outcomes, p 15]; and
·The claimant is a minor and this would greatly compound any difficulty he would have even if he were to attempt to relocate within Iran. Due to his young age, he would not have the resources to subsist safely [POE Outcomes, p 15].
I am satisfied that the decision to grant the Protection Visa was based, at least, partly on [the applicant’s] self-presentation as a minor.
Further, the Tribunal considers the provision of truthful information pertinent to a visa applicant’s identity, including a truthful date of birth, to be central to the integrity of the administration of visa applications and of Australia’s overall immigration system. It is, in my view, not maintainable to argue that the visa was granted other than in reliance on the false identity particulars provided by the applicant. The understatement of his age by [number] years also foreclosed necessary inquiries that might have included information on military service, further education and his employment history.
This is a matter to which I give significant weight.
The circumstances in which the non-compliance occurred
In his 2021 statutory declaration, [the applicant] claimed:
… When I arrived in Australia I provided a year of birth that was younger than my real year of birth because I was extremely fearful of the risk of being raped or injured if I was placed in an immigration detention centre for adults in Australia. This was based on my past experiences of being sexually assaulted, locked up and beaten in Iran.
My fears of being harmed in adult immigration detention were real and had a reasonable basis. I knew someone who was shot in Christmas Island detention. He has drafted a statutory declaration to confirm he was shot while in detention. Once he has signed and sent that to me I can then submit it to the Department…
I was under a lot of stress, pressure and fear and I did not have the power to make the right decisions when I reduced my age.
The boat trip to Australia was very stressful – I had severe sea sickness. I was on the boat for three days. I could not eat or drink anything…
I gave identity documents with my incorrect age on them to the Citizenship section because I had been asked to provide original identity documents and I was worried that if I came forward to tell the truth at that time, my visa would be cancelled and I would be returned to Iran.
I can find no media or other account of the claimed shooting of a person in detention on Christmas Island and note that, in his 2023 statutory declaration, [the applicant] no longer purported to intend to produce a statutory declaration from this alleged witness. However, he maintained the claim that he knew such a person. I give this aspect of his claim no weight.
[The applicant] also referred to the evidence of [Friend A] as to the conditions he feared in detention on Christmas Island. In his statutory declaration, [Friend A] claimed that he was in detention in 2010 until 2011 and that:
At the time I arrived at the refugee camp, it was constantly filled with serious fights, riots, constant fires set by others … I had become a witness of many traumatising events throughout the duration of my stay [at] the detention camp, I felt it was very unsafe for any person to enter, even for myself.
Media sources indicate that there were riots, including small fires being lit, at a detention centre on Christmas Island, between May and July 2011. I therefore consider [Friend A’s] statutory declaration plausible, although there is no indication that his claimed experiences specifically informed [the applicant’s] decision to falsify his age. I accept that, while en route to Australia in about November 2011, [the applicant] may have become aware of incidents in the detention centre on Christmas Island and that he may have felt a subjective sense of fear or trepidation about entering immigration detention. He attributes his decision to falsify his date of birth to his being under such stress, pressure and fear, and the effects of seasickness, that he “did not have the power to make the right decisions.” However, he has admitted that he provided falsified identity documents to his case manager while in detention which indicates a level of premeditation and preparation inconsistent with having acted impulsively or out of panic.
I consider the non-compliance to have been deliberate, pre-meditated and solely self-interested. The Tribunal gives weight to this factor in favour of cancellation of the visa.
The present circumstances of the visa holder
At paragraphs 14 to 24 of his 2023 statutory declaration, [the applicant] has described a number of health conditions from which he claims to have suffered since arriving in Australia. These include, principally, Crohn’s disease and depression. He attributes these to the conditions in immigration detention in late 2011 and early 2012 and to the vaccines administered there. He also claims a recurrence of childhood epilepsy, and the onset of alopecia. He claims that all of these conditions have been exacerbated by the refusal of his citizenship and the visa cancellation.
The Tribunal has considered the medical and psychological reports he has submitted in support of his claims.
In her report of 12 February 2021, [Psychologist A] repeats [the applicant’s] claim of having developed the symptoms of Crohn’s disease, adding that he told her that he no symptoms prior to arrival in Australia and that he attributes the onset of the disease to vaccinations administered in Australia and the trauma of his journey and subsequent detention. These matters are, of course, self-reported. However, it is difficult to locate a long-term history of Crohn’s diseases in the medical evidence he has submitted. The earliest medical report is that of [Doctor B] of 3 October 2019. It refers only to a consultation in 2012 for depression, for which he was prescribed Aropax and advised to consult a counsellor. The letter from [Doctor A] of 7 December 2021 lists consultations in 2018 for back pain and smoking cessation, in July 2021 for [medical condition 1] and depression, and in November 2021 for possible epilepsy and migraine. Azathioprine and infliximab are listed among the medications she prescribed for [the applicant], both of which are indicated for both [medical condition 1] and Crohn’s disease. However, Crohn’s disease and [medical condition 1] are distinct conditions and it is surprising that there is no diagnosis or history of Crohn’s disease in this report which, if diagnosed and treated since 2012, would be prominent in his history. [Doctor A’s] letter of 5 July 2022 refers to a diagnosis of Crohn’s disease not mentioned in her earlier letter. [Doctor A’s] letter of 12 September 2023 states that [the applicant] has been diagnosed with alopecia and that he is attending the dermatology outpatients’ clinic at [a named] Hospital. It states that he has been placed on steroid medications. It refers to an existing condition of Crohn’s disease with no indication of its history. There is no specialist referral or opinion, or specific identification of medication (in contrast to her letter of 7 December 2021). This means that there is not a diagnosis of Crohn’s disease upon which I am prepared to rely, much less one caused by Australian authorities. The Tribunal does accept that [the applicant] has a history of depression, a bowel condition, and some conditions associated with those conditions. There is no medical confirmation that he currently suffers from epilepsy.

Even accepting that [the applicant] has the specific conditions he claims, the Tribunal could give that factor no more weight than it gives to its acceptance that he has a history of the identified and suspected conditions listed in [Doctor A’s] letter of 7 December 2021. [The applicant] has presented no evidence, other than his assertion in paragraph 68 of his 2023 statutory declaration, that the medication he claims to need would not be available in Iran. The country information available to the Tribunal is that healthcare in Iran is a key government priority, that Iranian citizens are entitled to free healthcare and that major cities are well serviced with large public hospitals and health centres.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran (24 July 2023), p 10
The Tribunal has noted the reports of [Psychologist A]. Her report of 12 February 2021 narrates what she has been told by [the applicant] and presents her opinion that she was “unable to report whether he experienced symptoms of PTSD following his arrival in Australia, however given the fear for his life he experienced on the boat journey to Australia, followed by the development of significant symptoms from Crohn’s disease, it would be likely that he did experience symptoms of PTSD as a result.” She made no finding in relation to any current condition.
[Psychologist A’s] report of 14 October 2022 states that [the applicant] has told her that he had been suffering from stress as a result of the political situation in Iran, his estrangement from his daughter and his migration issues, and that he indicated to her that these were affecting his other health conditions. The Tribunal accepts that [the applicant’s] situation has been stressful for him. The matters relating to his daughter are discussed below. The Tribunal gives some limited weight to the other issues described above.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The delegate found that, while [the applicant] responded to the s 107 notice in a timely manner, he was not satisfied that he had complied with s 107(2) of the Act, which requires that, if responding to the notice, he must do so without making any incorrect statement. The delegate found that [the applicant] had made a number of incorrect statements in his statutory declaration of 9 December 2021. These relate to [the applicant’s] explanation of his decision to provide false information and documents in support of both his Protection visa application in 2012 and his citizenship application in 2016, in particular that he felt he had no choice but to compound his false claims with the provision of further bogus documents and that he did not intend to break the law.
While the Tribunal finds that these explanations are not reasonably plausible and do not excuse the provision of false information, it is not prepared to find that they necessarily amount to the making of an incorrect statement. It prefers the view that they reflect [the applicant’s] subjective state of mind which, while not objectively reasonable, cannot be shown to be objectively false. The Tribunal therefore allows some limited weight in his favour for making a timely response to the notice.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate indicated that there was no evidence before him of any other instances of non-compliance, allowing this a little weight against cancelling the visa. The Tribunal does not propose to disturb this finding, or the weight attached to it.
The time that has elapsed since the non-compliance
The relevant non-compliance occurred on 27 February 2012 when [the applicant] lodged his Protection visa application. Accordingly, over 11 years have now elapsed since the non-compliance identified in the notice.
The non-compliance was only detected in 2019 following an analysis of further bogus documents he supplied in support of his citizenship application in 2016. He was confronted with this by a notice to comment on adverse information issued on 11 February 2019. [The applicant] only admitted the provision of incorrect information in his statutory declaration of 16 May 2019.
The Tribunal can find nothing in this timeline to afford [the applicant] any weight in support of his application.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate found no evidence of any breaches of the law since the identified non-compliance and gave this consideration a little weight against cancelling the visa. I propose to do the same.
Any contribution made by the visa holder to the community
In his statutory declaration of 11 September 2023, [the applicant] states:
I have been honest with everyone and have made very good friends during all the ten years I have lived in Australia. I have never hurt or damaged anyone or anything.
I am financially honest and responsible; have worked and paid all my taxes on time.
I am a member of the [Community Organisation 1] and have been assisting them as a volunteer since September 2022 for various cultural and advocacy public groups.
I have also helped my friends as a [sport] coach volunteer to reach their goals. I played [sport] in Iran as a hobby. In Australia I helped a few different friends to achieve their goals in [sport]. I helped one friend for more than 6 months. I also helped one child (as asked to by his father) for about a month as the child wanted to [excel in the sport].
I have also had regard to the letter from [Official B’s] letter of 24 July 2023, which supports [the applicant’s] claims to gave supported the [Community Organisation 1] since September 2022,and to the letter [Friend B] of 11 February 2023, in which [the applicant] is described as an upright and active character in the community.
I give this factor a little weight in favour of his application.
Whether there would be consequential cancellations under s 140
[The applicant] dose not submit that there are any persons in Australia who hold a visa because he holds the visa under review. Cancellation of his visa therefore would not result in the consequential visa of any other person. I do not give this factor any weight.
The best interests of children
I have considered the possible effect of the cancellation of the visa in terms of Australia’s obligations under the Convention on the Rights of the Child (CRC), and in particular Article 3 which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[The applicant] has an Australian citizen daughter, ‘A’, born [DOB 2]. His statutory declaration of 9 December 2021 relevantly claimed:
[A] is my whole world. I do not want my daughter’s future to be harmed because of my mistake …
I had an informal agreement to pay child support to [the mother]. I gave her money whenever she asked for $50 or $100. When our daughter was born I had spent about $8000 to buy a cot, pram, clothes and anything else we needed for her.
The statutory declaration then narrated the circumstances in which he and the mother separated in 2019 and made a number of allegations against her, including claims that the attendance of ambulance officers and police were required in 2018 and 2019. It continued:
After we broke up in 2019, I used to see my baby in [the grandmother’s] house once a week.
[The mother] again refused to allow me to see our daughter from around January or February 2020 when I went to [a named city] for work. Initially the excuse my ex and her mother gave me for preventing me from seeing our daughter was the risk of coronavirus … They have also made a lot of other excuses since then but I do not believe those excuses have any valid basis …
Although I video call with my daughter twice a week, [the mother] still refuses to all me to see my daughter in person.
This breaks my heart as I love my daughter very much. I intend to again seek legal advice about how I can be allowed to see my daughter in person.
At the hearings in February, March and August 2023, I asked if he would consider providing his bank statements to the Tribunal, so that the screenshots of the payment receipts he had provided could be verified and any additional financial support or purchases for the child’s benefit could be identified. It also asked him to provide any evidence of the twice-weekly video calls.
In his statutory declaration of 11 September 2023, [the applicant] stated:
I have paid a solicitor from [Lawyers 3] to file an application at the Federal Circuit Court of Australia in relation to the matter of how much time [A] spends with each parent. Initially she advised that it was best to wait for the cancellation matter to be finalised but I do not understand how they are related. I have spoken to my lawyer again recently and she has advised that she is still working on the application.
For the past few months [the mother] has been sending me text messages asking to start seeing [A]. She is regularly sending me photos of [A] and herself.
Based on the advice of my psychologist, I have not responded to [the mother’s] text messages. My psychologist has told me that because of what happened to me in the past with [the mother] making allegations about me and to avoid any potential complications, it is best not to respond to her and not to engage with her directly so as keen as I am to start seeing [A], I am waiting for the legal process to take its course so I can start being part of [A’s] life again …
Senior member has requested me to provide evidence of paying child support for my daughter since she was born.
I have requested the bank for itemised statement, but I was told that the records only show the last two years (which I have not claimed that I have paid regular child support). I also went to my representative’s office and asked her for help to download my statements but we faced the same problem. It is only possible to search transactions from the last two years and I have attached a screenshot of this from my bank page.
At the hearing on 14 September 2023, the Tribunal asked [the applicant] about this screenshot from his [Bank 1] app. He said that it showed that details were only available for the last two financial years. The Tribunal put it to him that the screenshot did not support the claims in paragraph 74 of his statutory declaration, rather that he had attempted to search transactions, instead of downloading his bank statements. That is, he had attempted to isolate relevant transactions rather than to provide the statements. He said that he had not claimed to have provided child support in the last two years, because of the Covid situation and his own financial problems owing to his visa situation. The Tribunal suggested that he could provide evidence of his inability to provide child support if he chose, by disclosing the relevant bank statements.
The Tribunal took [the applicant] to his claim to have paid $8000 to purchase baby and nursery supplies when his daughter was born. The Tribunal asked if there was any record of this: it was not necessary to produce receipts because a pattern of expenditure would be readily discernible from his bank statements. [The applicant] undertook to provide his bank statements. However, no bank statements were subsequently produced to the Tribunal.
The Tribunal took [the applicant] to the text messages from his former partner. It asked why he had not replied to any of these. He said that he had explained to his psychologist his assessment of the mother’s character and the effect on him of interacting with her and, that his psychologist had advised him not to respond to her. He said that, further, the mother’s practice was to invite him to interact with his daughter and then to cancel any arrangement that was made. The Tribunal put it to him that he had provided no such advice from his psychologist and no evidence (such as screenshots of text messages) of any pattern of the mother’s alleged behaviour.
[The applicant] said that he had made several attempts at mediation, but they had all failed. The Tribunal put it to him that the correspondence he had submitted indicated that mediation did not proceed but did not provide any reason for that. The Tribunal was referred to letters from his lawyer, [named], of 2 March 2023 and 11 September 2023. The Tribunal suggested that what could be divined from these letters was that nothing had happened. It was submitted on his behalf that there were reasons for this. The Tribunal referred to paragraphs 39 to 62 of the applicant’s first statutory declaration, in which he made serious allegations against the mother, none of which was supported by documentary evidence that he might be expected to be able to produce. For example, it was open to him to request copies of police and ambulance reports naming or relating to him through Right to Information processes.
The documentary evidence in support of [the applicant’s] claims to have provided financial, material and parental support to his daughter is very slight, despite the Tribunal giving detailed descriptions of the material it would expect to see. He has provided screenshots of 15 electronic receipts he claimed recorded child support payments to the mother. They amount to a total of $1,890 over the period 28 May 2018 to 31 January 2023. This is a very small amount over a period of some five years but, given that [the applicant] (according to his tax returns) had a very modest income over this period, this may have represented all he could afford. The Tribunal indicated to [the applicant] that, in addition to the capacity of screenshots of receipts to be Photoshopped, the receipts were of little evidentiary value if the payments they were said to represent could not be cross-referenced to his bank statements and considered in the context of his overall financial position. In the absence of the bank statements, which were repeatedly requested by the Tribunal and which were promised but not delivered, the Tribunal cannot be satisfied that the financial welfare of A would be materially affected by the cancellation of the visa.
As to the best interests of A being served by [the applicant] continuing to live in Australia and being available to play a parental role in her life, the evidence is by no means satisfactory. In his evidence to the Tribunal, [the applicant] said that he had not seen A since about late 2019 or early 2020. The reason for this, he said, was the unreasonable behaviour of the mother and the grandmother. However, there was nothing in the documentary material he supplied that allowed his claims in that respect to be accepted with any confidence. There was no independent documentary support for his allegations of the mother’s violence and neglect or the attendances by police ambulance officers, despite him being a named party to the attendances[2], nor is there any evidence of an attempt to obtain any such material. The evidence in relation to his attempts to obtain parental orders is very sparsely documented. The evidence indicates that he issued instructions to [Lawyers 4] on [a date] (i.e., 4 days after the birth of the child) and paid $2000 to the firm the following day. The firm’s email to him of [that date] indicates that they had drafted an application to have A’s birth register amended to give A his family name and also recommended that he approach Relationships Australia for mediation on parenting arrangements. He claimed in his statutory declarations that the lawyers also wrote to the mother, following which she allowed him to see the child over the next eighteen months. There is nothing in the correspondence to indicate that the lawyers understood this to be their instructions and there is no copy of any letter to the mother.
[2] In paragraph 55 of his 2021 statutory declaration, [the applicant] stated that he was advised by ambulance officers that a copy of their report could be obtained on request but that he did not follow it up.
The records [the applicant] produced in relation to subsequent attempts to have contact with A comprise the s 60I certificate, which is dated [in] November 2020 and some correspondence from [Lawyers 2] and two additional solicitors’ firms. The certificate states that neither [the applicant] nor the mother attended family dispute resolution because, having regard to the matters mentioned in subregulation 25(2), it would not be appropriate to conduct the proposed family dispute resolution. These reasons include a history of family violence, a risk of child abuse, the safety of parties, the emotional, psychological or physical health of the parties, or the ability of people to negotiate freely. It cannot, of course, be inferred from this document whether either or both of the parties have given cause for any of these concerns. The certificate is not signed (there being a discretion for the practitioner not to give a signature), and there is no other means to ensure that it is an authentic document. The proposed dispute resolution is not mentioned in his statutory declaration and there is no surrounding correspondence of any type.
The letter from [Lawyers 2], dated 8 July 2022, confirms that [the applicant] [instructed] a solicitor to attend a scheduled family dispute resolution conference to be held [in] July 2022. There is an undated message from [Lawyers 1], which states that a family dispute resolution conference was held [in] July 2022 and that no agreement was reached between [the applicant] and the mother. It also states that they have funding to represent him in the Federal Circuit and Family Court and seeks instructions to commence proceedings. There is no accompanying certificate about the outcome of the family dispute resolution conference and it appears that no instructions were given to proceed with the Court application because there is no other correspondence with [Lawyers 1]. This process is not mentioned in [the applicant’s] 2023 statutory declaration. It is not at all clear from the correspondence that has been produced who it was that sought resolution of parenting arrangements. The [Lawyers 2] letter indicates that [the applicant] had been invited to attend the dispute resolution conference, which may indicate that it had been initiated by the mother. It is also possible that the ‘invitation’ is merely formal and is not intended to indicate who initiated the process.
Finally, there are two pieces of correspondence from [Lawyers 3]. The first, dated 2 March 2023, is addressed “to whom it may concern”, presumably for the attention of the Tribunal, and confirms that the firm has been engaged by [Lawyers 2] to represent [the applicant] to file an application for parenting orders. This was produced after the Tribunal expressed dissatisfaction at the hearing on 14 February 2023 that there was no evidence of [the applicant’s] claim to be seeking parenting orders. The second letter is dated 11 September 2023 and is addressed to [the applicant’s] representative in the Tribunal application. The letter states that [the applicant] had been assigned to the firm by [Lawyers 2] and that the firm had been in the process of preparing the application since being contacted by [Lawyers 2]. It continues:
… the preparation process was initially on hold because we received instructions from our client that he was in the process of going through AAT in relation to his visa matter and he did not have time and the mind set to go through court process in the family law court. It is our understanding that our client thought at that time it is better to finish his visa matter first before we started on his behalf the application process at the family court of Australia. Otherwise, our client thought at that time he would have suffered too much pressure if the matters were to be pursued at the same time.
In or about March 2023, we were approached by your office to enquire about the application at the family court. We have notified you on the phone that we were in the process of preparing the materials. However, the application process was put on hold because of my family commitments. We shall return to prepare for our client’s application in a month time.
[The applicant] has produced no correspondence of any nature between himself and [Lawyers 3]. His own evidence was that it was [Lawyers 3] who advised him to delay the application.

The material produced by [the applicant] to the Tribunal provides, at best, only equivocal support for his claims and leave many unexplained absences in the evidence. The Tribunal stressed at each of the hearings that it was, in many ways, central to his application to establish that the best interests of the child would be adversely affected by the cancellation and that, because he had only very limited contact with the child since she was [age] years old, the documentary evidence of his attempts to maintain contact and provide support would be very important.
The documentary evidence presented to the Tribunal as the relationship with the child exhibits the following deficiencies:
·The (uncaptioned) photographs he has submitted comprise four of him with the child as a newborn and two with child aged apparently about 18 months taken on the one occasion. It cannot be accepted with confidence, and in the lack of any other material, that he visited her weekly through 2019 to 2020 as claimed. It is also not possible to accept with confidence that he maintained twice weekly video calls with the child because he claimed to be unable to produce the relevant telephone records and did not produce any other supporting material that might be expected, for example, text messages with the mother or grandmother to arrange these calls or screenshots taken during video calls.
·The amount of money paid by [the applicant] for child support is, prima facie, derisory. He declined the Tribunal’s invitations to permit an assessment of the veracity of the claimed payments, the adequacy of his contributions, or his claimed incapacity to contribute over the past two years.
·He made no response to the child’s mother when sent him photographs and an invitation to mediate for access to the child. His explanation, that she has a history of offering then withdrawing access to the child, and that he was advised by his psychologist not to respond, is not supported by evidence that would, on the basis of the other material submitted, be expected to exist. The report from his psychologist, [Psychologist A], is only that [the applicant] had reported very limited contact with his daughter due to an estranged relationship with the mother.
While the Tribunal has had regard to [the applicant’s] oral and written testimony about his relationship with his daughter, the weight it can give it is undermined by the shortage or non-submission of material that could reasonably be expected to be submitted if it supported his claims. The Tribunal’s assessment is that there has been very little, if any, contact between [the applicant] and his daughter since about 2020, and that there had been very limited contact before then. Were he to be removed from Australia, there is no reason to believe that he would not be able to maintain his contact with the child at current levels, or to increase it materially circumstances permit. Accordingly, in view of all the evidence, the Tribunal does not consider that the cancellation of the visa would have any adverse effect on the best interests of the child. Given that the family unit is not intact, and that means for continued contact at or above current levels are feasible, the Tribunal does not consider that cancellation of the visa could amount to an interference with the integrity of the family unit. The Tribunal further notes that cancellation of the visa is not itself a decision to remove a person from Australia and is not, therefore, of itself a decision to separate [the applicant] from the child.
The Tribunal therefore can give this factor no weight against cancellation of the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations
In his 2021 statutory declaration, [the applicant] made a number of claims to fear mistreatment and persecution should be returned to Iran. These were:
·That his [Relative A] is a member of the Basij religious police and that the [Relative A] would see to it that he is persecuted for being insufficiently religiously observant, or an imputed apostate (this is the claim he made in the 2012 protection visa application and which he says remains his principal claim);
·He was sexually assaulted in Iran;
·Having lived in Australia for ten years, he would be treated as a spy by Iranian authorities;
·He is no longer Muslim but would be forced to observe Islamic rules, including religious observation and abstaining from alcohol;
·He is at risk of being harassed and arrested due to his non-Islamic appearance, including piercings and tattoos; and
·He would be arrested or killed by Iranian authorities because of his political and social media activities in Australia.
In relation to his original and principal claims, the Tribunal suggested to [the applicant] that they were formulated in terms of him being a juvenile: his fear of his [Relative A] was expressed in terms of his living at home with his parents, with inadequate protection at home and no reasonable means to relocate. He said that, because his [Relative A] was a member of the Basij, he was at risk anywhere in Iran. He referred to the photographs he described as depicting his [Relative A] with [Official A] and with Iranian and [Country 1] officials. These are purported screenshots from social media accounts, the provenance of which the applicant has not established (see below), and there is no means on the face of the documents by which the Tribunal can be satisfied that the person depicted is [the applicant’s] [Relative A], nor that the events depicted are what he claims. [The applicant] said that the person depicted could be identified by reference to the [Relative A’s] identity documents submitted with his protection visa application. The photographs in those documents are of such poor quality that I am not prepared to rely on them. Further, they were submitted with a tranche of bogus documents in 2012 and are not accompanied by certified translations. I am therefore not satisfied that the documents submitted by [the applicant] in connection with this claim are reliable.
The claims of sexual assault are newly made and are not accompanied by any description or narrative. In his 2021 statutory declaration, he stated:
I was sexually assaulted in Iran. I find it very difficult to think about and talk about this sexual assault against me. Although I did not provide information in my protection visa application about the sexual assaults against me that I suffered in Iran, I later told my psychologist, [Psychologist A], about those sexual assaults. Her letter has information about the sexual assault in Iran.
The letter from [Psychologist A] to which [the applicant] referred is the one dated 12 February 2021. It says:
… he noted having felt persecuted in his home country, including significant physical/sexual trauma that he has indicated occurred. He seemed uncomfortable exploring this trauma in further detail to date and out of respect I have declined to push [the applicant] to divulge further details.
As the evidence stands, this claim is devoid of content.
In relation to his claims that his (now eleven) years of living in Australia would render him a spy in the eyes of Iranian authorities, the Tribunal has considered the most recent county information from the Department of Foreign Affairs and Trade. Its relevant reporting is that:
In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 24 July 2023, p 40
No contradictory country information was submitted by [the applicant]. On the basis of the available country information, the Tribunal is not satisfied that there is a real chance that [the applicant] would suffer persecution or face serious harm by reason of his extended residence in Australia should he be returned to Iran now or in the reasonably foreseeable future.
In relation to his claims to no longer consider himself Muslim, the DFAT country information report assesses:
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
…
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.[4]
[4] Ibid, 23
No contradictory country information was submitted by [the applicant]. On the basis of the available country information, the Tribunal is not satisfied that there is a real chance that he would suffer persecution or face serious harm by reason of his non-observance of Islam, his secular identification and/or his atheism. It does not consider he is at any more risk of harm by reason of his wish to consume alcohol than a very substantial cohort of young Iranians. Accordingly, the Tribunal cannot be satisfied that he has a well-founded fear of persecution by reason of these claims.
In relation to his claims be at risk of being harassed and arrested by reason of his non-Islamic appearance, tattoos and piercings, the DFAT country information report is:
Having tattoos (including large tattoos that cover the entire arm (‘sleeves’)), ripped jeans, plucked eyebrows, jewellery (for example ear piercings), and Western-styled hair is common among young men in Tehran and other large cities. Women are subject to much stricter dress codes and are required to have most of their bodies covered (though may still wear western fashions). Tattoos are popular with young women.
DFAT is not aware of men who have Western style appearance being targeted by authorities. Nor is DFAT aware of women who have a Western style appearance being targeted (with the exception of not wearing a hijab, see Women). DFAT is similarly not aware of tattooists being targeted. Some people in conversative communities or who have conservative parents may experience low-level discrimination, but this depends on the family.
No contradictory country information was submitted by [the applicant]. On the basis of the available country information, the Tribunal is not satisfied that there is a real chance that [the applicant] would suffer persecution or face serious harm by reason of his appearance, tattoos and piercings, or any one of these, should he be returned to Iran now or in the reasonably foreseeable future.
The Tribunal has considered [the applicant’s]s claims to have engaged in political activities hostile to the Iranian regime while he has been in Australia.
In his 2021 statutory declaration, he described his political activities as follows:
Another reason I fear return to Iran is because my social media accounts which I opened in Australia are against Iran.
On my [social media] page I follow others who post anti-Iran videos and photos in Farsi.
My [social media] name is [name] ([Name explained].) While I have not shared the anti-Iranian content, I follow others who are widely known to be against the Iranian government (e.g. [Person 1]).
The Iranian government can easily find my social media account, considering they have tried to abduct [Person 1] from [outside Iran].
I am worried I will be killed by Iranian authorities, regardless of having a lower profile than someone like [Person 1].
[The applicant] expanded on these claims in his 2023 statutory declaration:
I have an active [social media] account with over 100k followers …
On my [social media] page I do not only follow others who post anti-Iranian government and photos, but I also ... post anti-Iranian government material on it.
I have also regularly participated in anti-Iranian government demonstrations in [Australia]. Videos of this have been shared and viewed on various sites across the world and in Iran. All of these activities will place me at a much greater risk if returned to Iran …
[The applicant] therefore claims to have significantly increased his visibility and social media profile since making his 2021 statutory declaration. In respect of his claimed involvement in demonstrations and rallies, he has also submitted a letter from [Official B], president of the [Community Organisation 1], who states that [the applicant] “has been actively involved in the anti-Islamic Regime of Ian’s protests and rallies since September 2022.” It is clear from the evidence, therefore, that [the applicant’s] claimed adoption of a high social media profile and engagement in political rallies are very recent events.
In support of his claims, [the applicant] submitted an undated uncaptioned photograph of himself at an anti-Iranian rally and a short undated and uncaptioned video showing him leading a chant of “down with Khamenei." Under the cover of an email dated 14 February 2023, he submitted a screenshot of what he claimed was his [social media] profile page with the name “[name]”, showing that he has made [number] posts and has [large number] followers. His posts were categorised as [specified names]. There were no visible posts with a political dimension.
The Tribunal took [the applicant] to this material and asked if he had provided anything to show his connection to the account and the manner in which it was conducted. He undertook to provide material of this nature. It asked how it was that he had made only [number] posts yet had [number] followers. He said that he had posted video “stories” with anti-Iranian regime themes, which had been very popular. The Tribunal asked if he had any evidence of this activity. He said that [his platform] deleted “stories” after a certain period of time. The Tribunal indicated that it was not possible to give credence to his claims without some evidence of them. He undertook to attempt to find some record of the “stories”.
The Tribunal asked if he had any privacy settings to prevent the Iranian regime accessing his posts. He said he had not used privacy settings until recently because he wanted his posts about his political views and activities to be widely seen. There was no material submitted to indicate privacy settings or to give an indication as to how many of his claimed posts had been viewed.
On 2 August 2023, [the applicant’s] representative emailed the Tribunal with a screenshot headed “stories archive”. This showed an apparent collection of thumbnails of videos with an anti-Iranian regime theme, but there was no visible connection with [the applicant] or his social media account. Three video were provided on 10 August 2023. The first of these was a video scrolling through the page shown in the photograph received on 2 August 2023. The second video shows an apparent anti-Iranian regime demonstration shot in [Australia] and set to music. The [social media] account “[name]” is shown at the foot of the screen. The third video shows an anti-Iranian regime demonstration in [location]. The [social media] account “[name]” is also shown at the foot of the screen. [The applicant] is briefly visible in this video. The two videos of the demonstration(s) carry watermarks, indicating that they have been produced by someone else. It is not clear from any of this material whether the first video is associated with [the applicant’s] [social media] account, or whether the other videos have been posted or available on his account or posted elsewhere and simply viewed on [his social media].
In assessing this material, the Tribunal has considered the remarks and guidance on social media evidence, and the surveillance of social media by governments in the decision of the UK Upper Tribunal in XX v Secretary of State for the Home Department [2022] UKUT 00023. It considers the following guidance to be relevant:
·Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available in the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.
·It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where is a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.
In respect of the claim that [the applicant] has come or would come to the attention of the Iranian authorities by reason of his claimed activism or social media activity, the Upper Tribunal’s guidance is to the effect that the capacity of a government to conduct social media surveillance of its external citizens is limited and evidence would be needed to indicate that the person is of significant adverse interest.
The relevant DFAT country information is:
in general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government.[5]
[5] Ibid, p 39

Applying the country information and the Upper Tribunal’s guidance, the Tribunal considers the [social media] posts, which are apparent printouts of an internet page, or of videos not shown to have been posted and viewed by others on [the applicant’s] [social media] account, are of very limited evidential value. [The applicant] has presented no evidence that suggests the Iranian authorities maintain any interest in him and, accordingly, the Tribunal cannot be satisfied that any of his social media activities have come to their attention. There is no evidence that any of his filmed protest activity, the existence of which I accept, is of interest to the Iranian authorities. Accordingly, I cannot be satisfied that [the applicant] has a well-founded fear of persecution by reason of his sur place political activities in Australia.
Having considered all of [the applicant’s] claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that he will suffer persecution as a consequence of his [Relative A’s] connections to the Basij, having been subjected to sexual assault, his history of residence in Australia, his lack of religious belief, his non-Islamic appearance, his sur place political activities in Australia, or any other reason if he returns to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied that he has a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran.
[The applicant] has made no specific claims in respect of complementary protection, other than those related to his claimed history of Crohn’s disease which is dealt with above. Having considered all of the his claims, individually and cumulatively, and all the evidence and submissions, as well as having considered his personal circumstances, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that Australia’s non-refoulement obligations are invoked by cancellation of the visa. In any event, cancellation of the visa will not necessarily result in [the applicant] being removed from Australia and being returned to Iran. Any such decision would require the completion of International Treaties Obligations Assessment before it could be effected. This process would determine whether [the applicant] faces a real risk of harm in Iran.
In all of the circumstances, the Tribunal can give no weight to the submission that cancellation would invoke Australia’s non-refoulement obligations.
Mandatory legal consequences of cancellation
Should the visa be cancelled, [the applicant] may be unable to meet PIC 4013 and may be unable to have any further visa application approved for a period of three years. He would also be subject to s 46(1) of the Act, barring him from making a valid application for a further visa. Because he was an irregular maritime arrival, were his Protection visa to be cancelled and he became an unlawful non-citizen, he would be subject to s 46A(1) which would bar him from making a valid application for any further visa, including a bridging visa, and he may be liable to detention. Further, he would also be subject to s 48A(1B), which would bar him from making a further application for a Protection visa while in the migration zone. Accordingly, he would be unable to make any valid visa application unless the Minister personally intervenes to lift the bar.
If the visa is cancelled, he would become an unlawful non-citizen and liable to detention under s 189.
[The applicant] told the Tribunal that he would not return to Iran voluntarily. It is noted that the Iranian government has a longstanding policy of not accepting involuntary returns. Accordingly, unless he changes his mind, he may be subject to indefinite detention.
These are matters to which I attach some weight.
In determining this application, in favour of cancellation I have given weight to the provision of false information, the fact that the visa was granted, at least in part, in reliance on the false information, and the circumstances in which the non-compliance occurred. Against cancellation of the visa, I have given the greatest weight to the possible emotional and psychological hardship to [the applicant] and his daughter, and to the mandatory legal consequences of cancellation. I have given limited weight to [the applicant’s] timely response to the Department’s notice, the lack of other instances of non-compliance or breaches of the law, and his contribution to the community. I have been unable to give any weight to the submissions that cancellation would breach Australia’s international obligations in terms of the best interests of children, family unity and non-refoulement.
Taking all of the factors into account, I have given the greatest weight to the provision of false information and the compromise it represents to the integrity of the immigration system. I do not consider the countervailing factors sufficient to displace the gravity of the provision of such fundamental false information. I therefore find that the factors in favour of cancellation outweigh those against.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
James Lambie
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 4717

2 November 2023

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