2206263 (Refugee)

[2023] AATA 3107

2206263 (Refugee) [2023] AATA 3107 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kourosh Momeni (MARN: 0955242)

CASE NUMBERS:  2206147 and 2206263

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE OF ORAL DECISION:   14 July 2023

DATE OF WRITTEN DECISION:              21 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first and second named applicants’ Subclass 866 (Protection) visas.

The Tribunal has no jurisdiction with respect to the third named applicant.

Statement made on 21 August 2023 at 9:04am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – joint hearing and decision of wife’s and husband’s separate applications – incorrect answers in visa application – citizenship – not stateless Faili Kurds but Kurdish Iranian citizens – discretion to cancel visa – claim repeated at various stages before ground conceded in response to department’s notice – second applicant’s permanent hearing loss and speech disorder – discrimination and harassment – unlawful maritime entry – advised by people smugglers and others to claim as Faili Kurds – intentional provision of incorrect answers – first and third applicants’ physical and mental health – health facilities and services, discrimination and stigma for people with disabilities – conversion to Christianity after protection visa granted – church, community, work and school activities – members of family unit – consequential cancellation of first child’s visa with no jurisdiction to review – possibility of applying for protection in own right – best interests of Australian citizen second child – country information – non-refoulement and guidelines for ministerial intervention – decision under review set aside

CASE

1901883 (Refugee) [2021] AATA 3216

LEGISLATION

Migration Act 1958 (Cth), ss 35A(3), 46A, 48A, 189, 196, 197AB, 197C(3), 197D(2), 198, 101(b), 107, 109(1), 140(1)

Migration Regulations 1994 (Cth), r 2.41

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 first named 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 applicants provided incorrect information in their protection visa applications to the Department. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visas should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (‘the applicant’) and the second named applicant (‘second named applicant’). The visa of the third named applicant was automatically cancelled as a consequence of the cancellation of her parent’s visa, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 14 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [A], Revds. [B] and [C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Circumstances of the second named applicant

7. Medical certificates and reports were submitted prior to the hearing relating to the second named applicant’s hearing loss. The certificate by [Dr D], a General Practitioner, explains that he has permanent hearing loss which creates significant difficulties in communicating. The certificate notes that he relies on ‘speech reading and sign language’ to communicate.

8. A report dated 23 June 2023 from [Ms E], Senior Audiologist at Australian Hearing noted that the second named applicant has, ‘severe, sensorineural hearing loss in both ears. …hearing loss is permanent…[the second named applicant] is going to find communication very challenging even with optimally fitted hearing aids due to his severe hearing loss.’

9. The claims of hearing impediments are consistent from the earliest submission to the Department including in the protection visa application statutory declaration dated 31 January 2011 in which the first named applicant writes, ‘I, [the first applicant], will provide our claims in a joint statement as [the second applicant] is deaf and can only speak a little bit. He can only communicate through me and does not understand much sign language.’

10. At the Tribunal’s hearing the second named applicant was evidently unable to hear the interpreter unless the interpreter spoke slowly using simple language and faced directly to him. Even under such circumstances he was only able to communicate on simple matters.

11. In the response to the hearing invitation for this hearing the applicants submitted, ‘[The second applicant] is deaf and he has speech disorder. He cannot hear or talk. His wife always acts as his interpreter.’

12. An offer was made by the Tribunal to facilitate an Auslan interpreter, but the response was that the second named applicant was only slowly learning and adopting Auslan and could not use it well.

13. Arising from these circumstances a joint hearing was held with the agreement of the two parties. At certain points through the hearing, I asked the interpreter to specifically direct his interpretation to the applicant and requested a simple response from the second named applicant, but otherwise I relied on the evidence of the first named applicant as her circumstances were claimed to be consistent with his circumstances and I had no concerns about the applicants’ credibility such that they could be tested by receiving evidence from each of the parties separately.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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.

16. 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?

17. 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.

18. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) which reads:

    Section 101 Visa applications to be correct

    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.

19. The non-compliance identified in the s 107 notice was centred on the applicants falsely claiming to be stateless Faili Kurds, an ethnic group that DFAT describes as:

    The Faili Kurds are a sub-group of the larger Kurdish population. Most, but not all, Faili Kurds originate from the Zagros mountain range that straddles the Iran-Iraq border. Some have lived in modern-day Iran for centuries and are citizens, and some have family on both sides of the border. Many had land and documents seized in the 1960s by the then-Ba’athist government in Iraq, which considered the Faili Kurds Iranian, and refugees from that time still live in Iran…Some are Iranian citizens, however others are registered or unregistered refugees from Iraq[1]

    [1] Department of Foreign Affairs and Trade, ‘DFAT Iran Country Information Report’, 24 July 2023

20. This claim was made repeatedly as outlined in the delegates Notice of Intention to Consider Cancellation (NOICC), including at the:

    a.4 November 2010 Entry Interview

    b.31 January 2011 Refugee Status Assessment

    c.7 June 2011 application for a Protection visa

21. For example, with regards to the latter, the applicants wrote in an accompanying statement:

    We are both stateless and not citizen of any countries and we do not have a right to citizenship or a right to reside in any other country.

    We are Failie Kurdish and our religion is Muslim Shi’a.

22. The incorrect information came to light through Departmental processes. The delegate in composing the NOICC noted that through the process of applying for citizenship the applicants were asked in September 2019 to provide identity documents. The applicants only provided Australian documents which were obtained while in Australia.

23. On the 17 February 2021 the Citizenship delegate put adverse information to the first named applicant which included that the first named applicant’s brother had provided Iranian nationality documents and that as such arising from Iranian law she too would be an Iranian citizen.

24. On 30 March 2021 and the 14 April 2021, the second named applicant and first named applicant respectively provided to the Department original documents indicating their Iranian citizenship including an Iranian birth certificate and Iranian national identity card among others.

25. The delegates for both cancellations then detailed in the s 107 notices the specific non-compliance to the questions asked in the protection visa application form and contained within their accompanying statements.

26. In response to the NOICC the first named applicant wrote a statutory declaration dated 3 May 2021 writing on behalf of both applicants that they were not stateless Faili Kurds and that they were sorry for the lies.

27. At the hearing both the first and second named applicants acknowledged that they had provided incorrect information as to the nature of their statelessness as well as them being Faili Kurd as opposed to Kurd.

28. For the reasons that the applicants have individually at the hearing and prior to the hearing in writing acknowledge that they provided incorrect information, I find that there was non-compliance with s 101 by the first and second named applicants in the way described in the s 107 notice.

    Should the visa be cancelled?

29. 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).

30. 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

31. The correct information is that the applicants are citizens of Iran. They are not stateless. They are not Faili Kurds, but they are Kurds.

32. The incorrect information is not tangential or peripheral to their narrative. Considerable incorrect information flows from these foundational lies. In the original accompanying statement with the protection visa application the applicants wrote that because of their statelessness they could not work, marry, own property, access education or documents. This then fostered further lies.

33. For the reason of the foundational nature of the incorrect information, going to the heart of their identity and narrative, I place considerable weight in favour of cancellation.

    The content of the genuine document (if any)

34. There is no document in this instance and as such I place neutral weight on this matter.

    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

35. Unfortunately, the Tribunal did not have access to the decision by the delegate of the Minister that led to the grant of the visa. It was not available on the Departmental file and following correspondence with the Department it was confirmed that they did not have a copy of it.

36. While the delegate’s decision was not available, a record of the Refugee Status Assessment (RSA) was available. This assessment formed a part of the administrative process during the period when the applicant’s arrived. It was a preliminary stage for persons who arrived in areas excised from the migration zone until the Minister exercised their personal powers to life the bar preventing arrivals from applying for protection. The RSA process utilised the same criteria found in the Migration Act as did delegates considering applications for the sub class 866 visa.

37. In reviewing the RSA decision, I find that it was wholly based upon the claim that the applicants were stateless Faili Kurds. For example, the delegate wrote:

    Considering the above, I find that the Convention grounds of nationality and race (Claimant 1 being a stateless Faili Kurd) are the essential and significant reasons for the harm Claimant 1 fears he may experience.

38. The applicants’ representative argued that there would have been other pathways by which the applicants may have accessed a protection visa had they been truthful, including by noting the treatment of people with disabilities in Iran.[2] But the issue before me is not a hypothetical question as to whether they may have obtained the visa by way of submitting another claim but rather whether the decision that was made was based wholly or partly on incorrect information.

    [2] Submission dated 10 July 2023 p5

39. Although the RSA decision is not the decision that led to the grant of the visa, it is contemporaneous to the decision to grant the visa and as such indicative of the basis upon which the applicants were granted their visas at the time. I note that the applicant’s representative did not argue that the visa was granted for reasons other than for their claim of being stateless Faili Kurds.

40. For these reasons it is reasonable to assume that the decision was made on the same basis as the decision in the RSA document and as such I find that the decision was based wholly on the incorrect information and as a result I place considerable weight in favour of cancellation.

    The circumstances in which the non-compliance occurred

41. Considerable emphasis was placed in submissions and at the hearing on the circumstances in which the non-compliance occurred. The reason given for the applicants’ choosing to provide incorrect information can be summarised as desperation to permanently leave Iran alongside pressure to align their stories with those of other arrivals. As their desperation was identified as a reason for their non-compliance, I will begin with the evidence provided of their circumstances in Iran as provided to the Department and Tribunal. To avoid the possibility of engaging with information that was incorrect I have only engaged with the submissions made after they had acknowledged that they had provided incorrect information.

42. In the 12-page statutory declaration dated 3 May 2021 the first named applicant described their situation in Iran as follows.

43. She was born into a large and religiously conservative family with [siblings]. Her childhood included being forced to follow Islam including at school being beaten if she didn’t follow the rules. She claimed that her parents were poor not having enough clothing for winter having to borrow clothes from others. To bath they would boil water and wash from the pot. One of her sisters while she was still young fell into the pot of boiling water and was burnt all over her body. The first named applicant writes that she can’t forget the screams of her sister. The sister subsequently faced repeated health problems and while in a hospital she died. The applicant heard her sister scream before her death and blames a doctor for what happened. Another sister died in suspicious circumstances involving a creditor collecting on debts which the applicant explained at that time culturally allowed debt holders to take a daughter as repayment. The creditors instead ended up taking their home and they had to move out into a much smaller house with a single room and bathroom.

44. The applicant’s father accepted on her behalf an offer of marriage without having met the man. When the man’s family came to their village, she learned that her husband-to-be was deaf. She nevertheless embraced her future and together they moved to Tehran. In Tehran the second named applicant worked as a labourer and was eventually injured.

45. The applicant wrote that when they decided to have children they were ‘detested’ as others thought that they would have a disabled child too (an experience corroborated by others as documented in a Human Rights Watch report)[3].

    [3]  “I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran, Centre for Human Rights in Iran and Human Rights Watch, 2018 p20

46. The second named applicant was once arrested in a park in Tehran for suspicious activities as he and his friends were using sign language. He was detained and beaten including it was claimed, severely on his genitals.

47. Arising from the hardship and poverty that they had faced, the discrimination due to the second named applicant’s disability, and the harassment from the police, the applicants chose to leave Iran. As the applicant’s brother had left for Australia the applicants thought about moving to Australia also. They borrowed some money; sold what property they had at the time and took the journey together with the third named applicant who was then a young child.

48. The first named applicant wrote in her statutory declaration that the people smugglers in [Country] were the first to instruct them that upon arrival to Australia they should say that they don’t have passports and that they are stateless Kurds. As a result, when they were first interviewed in Christmas Island the applicants said that they were stateless Faili Kurds. She wrote in her statutory declaration ‘But I wish you consider our situation that we were in such fear that we could not say anything else in fear of being sent back to Iran.’

49. After three months in immigration detention the applicant claims that they were worried about being sent back to Iran so when interviewed again they reiterated their claims of being stateless Faili Kurds.

50. At the Tribunal hearing the applicants described being encouraged to provide incorrect information by their interpreter who was assigned to translate their oral claims into the written statement accompanying their protection visa application. The applicants claimed that the interpreter was a Faili Kurd who had been expelled from Iran. He said to them that he knew the circumstances of Iranian Kurds including the history of expulsion from Iran to Iraq. The applicant claims that while she was speaking, he would write in English the entire detailed statement of claims of which the early years including their statelessness and being Faili Kurd were not correct.

1. I note that the extent of the incorrect information was expansive. Arising from the original claimed statelessness the written statement explained that they were not able to work, could not enrol in school, could not marry and did not have any documents. The applicant admitted at the hearing that none of this was true.

2. I am somewhat sympathetic to the applicant’s circumstances. While on the face of it, she had complete agency over her actions and could have made the right choice to tell the truth, there are some mitigating circumstances. The applicant is a woman from a patriarchal society who was encouraged in some instances and instructed in others to adopt the stateless Faili story. For her to stand up and object to these messages would have been contrary to her cultural upbringing and would have required considerable courage. Her husband, while being able to communicate with her, was unable to contribute meaningfully to this situation, though they did discuss it between themselves.

3. Having said that, ultimately it is the responsibility of each individual to make the right choice and in this instance the first and second named applicants did not choose well. As the primary communicator, the first named applicant lied intentionally and knowingly, and as such I place weight in favour of cancellation but due to the above discussed mitigating circumstances it is moderate weight rather than substantial weight.

   The present circumstances of the visa holder

4. The first named applicant has chronic pelvic pain and depression as reported by [Dr D] at [Medical Clinic]. The letter goes on to state that her medical conditions ‘significantly impact her daily life.’

5. The health facilities in Iran fall far short of what they are in Australia.[4] While the differential in available care would not amount to persecution, as it is not discriminatory, it would lead to additional hardship to the applicant arising from her present health circumstances.

   [4] >

   Considering the substantial differential in health services and facilities between the two countries the degree of hardship increases substantially based upon the degree of health support required.

6. The second named applicant has the above-mentioned hearing difficulties. He is learning Auslan but due to the language barrier his rate of progress is slow. The representative rightly directed the Tribunal to country information that shows the parlous state of support provided to people with disabilities in Iran:

   People with disabilities in Iran face discrimination, abuse, and an inaccessible environment…[including] when going to government offices, healthcare centers, and when using public transportation. People with disabilities also regularly face stigma and discrimination from government social workers, healthcare workers, and others. Many remain trapped in their homes, unable to live independently and participate in society on an equal basis with others.

7. In one quote of a deaf man’s experiences in Iran, he said:

   State Welfare Organization officials encourage cochlear implantation a lot. They pay part of the surgery expenses. But if we ask them to train sign language interpreters, they say they don’t have money. They tell us that they have limited resources and that we need to improve our remaining hearing instead of using sign language. Instead of supporting us, they want to eliminate us. They want all deaf persons to disappear. The day my heart really broke was the day I heard my favorite actress say, “We pray to God that one day, there are no more deaf people in Iran.” The highest priority is to prevent our existence or cure our conditions to the extent possible rather than supporting us to fulfill our capabilities.[5]

   [5] “I Am Equally Human” Discrimination and Lack of Accessibility for People with Disabilities in Iran, Centre for Human Rights in Iran and Human Rights Watch, 2018 p47

8. While the treatment the second named applicant will receive in Iran may amount to persecutory treatment, I also find that due to the differential in the services provided to deaf people including the report noting a lack of sign language support and training and lack of specific services, I find that the second named applicant will face additional hardships in Iran arising from his present circumstances.

9. The third named applicant submitted a medical report which identified her as having an ankle injury that required surgery and the diagnosis of osteopenia which is the weakening of the bones. As a result of the surgery, she has a ‘significantly smaller’ [leg] and for this reason she cannot walk long distances nor play any sport. The report notes that she has often missed school due to the pain. She has also struggled with her mental health following a car accident. I accept that the third named applicant will face a lesser level of medical support in Iran, particularly noting the limited acceptance and level of mental health services, and as such find that she will experience marginally more hardship in Iran than in Australia arising from her present health circumstances.

10. Regarding her other present circumstances including her language skills, access to university and how being a woman will impact her in Iranian culture, I discuss these matters further below.

11. Both the first and third named applicants have met with a social worker/therapist who provided letters in support of their character.

12. The applicants have a second child, [Master F], who was born in Australia while his parents were permanent residents and as such, he is an Australian citizen by birth. The impact of this situation is discussed further below.

13. The entire family, including [Master F], are practicing Christians. Their conversion to Christianity occurred after they were granted permanent protection visas. The applicant provided a detailed account of her conversion which I found to be convincing. In addition, two Reverends appeared as witnesses giving evidence of the applicants’ commitment to their faith. For these reasons I have accepted that they are genuine practicing Christians.

14. Their religious faith is relevant not for the purposes of considering the risks of persecution in Iran for Muslim converts to Christianity, which I discuss further below under the question of non-refoulement, but rather for the reason of how their faith provides sustenance to them.

15. For genuine Christian believers being deprived of access to a church and the spiritually enriching activities that are practiced there including for example holy communion, which the applicants confirmed they partake in, there is an impact on the individual being deprived of this such that some degree of hardship arises. This is particularly the case in this instance as their devotion to Christianity is very high.

16. Noting the applicants’ health circumstances and their need to receiving spiritual sustenance through a church which would not be available in Iran, I place considerable weight against cancellation for the reason of their present circumstances.

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

17. There are no other known behavioural concerns relating to the obligations upon visa holders in Subdivision C of Division 3 of Part 2 of the Act. Noting that compliance with their obligations is a basic expectation of all visa holders I place limited weight against cancellation.

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

18. There are no other known instances of non-compliance known to the Tribunal. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.

    The time that has elapsed since the non-compliance

19. The applicants first arrived in Australia as unauthorised maritime arrivals [in] October 2010. The applicants were granted protection visas on 7 March 2011. They have been in Australia for nearly thirteen years and in the community for around twelve years. This is a substantial period during which they have established strong ties to the community especially through their Church and the applicant’s workplace and school for the third named applicant as well as having lost ties to their former community.

20. I place moderate weight against cancellation based upon the length of time that they have spent in Australia.

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

21. There are no breaches of the law known to the Tribunal. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.

    Any contribution made by the holder to the community.

22. The first named applicant is a major contributor to [a] Church. The church has [congregations] spread across Melbourne with about 150 members and 1500 Iranian Christians who are tangentially involved with or engaged through the Church.

23. The applicant sits on an oversight committee of all three congregations. The oversight committee organises camps for members and others who want to join, they also come together at annual camps with other cities’ congregations. During these camps they would organise speakers from overseas to speak.

24. Their activities range from empowering women through to providing humanitarian assistance gathered from their community but also by way of government grants, both activities of which the applicant contributed to in various ways. This included the applicant identifying families in need in her community and facilitating the support the Church could provide. The families they support were not exclusively of Iranian cultural heritage.

25. The third named applicant has also contributed to their Church through leadership in the Kid’s Ministry.

26. Arising from the considerable contributions the first named applicant makes to the community through her involvement in the Church as well as what the third named applicant contributes, I place moderate weight against cancellation.

    Other considerations

27. 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.

    Whether there would be consequential cancellations under s 140.

28. The third named applicant’s visa would be cancelled consequentially. The third named applicant (‘the daughter’) is an [Age]-year-old female who also holds Iranian citizenship.

29. She submitted a statement explaining her circumstances, including her upbringing in Australia and the role her Christian faith plays in her life:

    I did kindergarten in a detention camp and when I came to Melbourne I completed school from prep-year 12, when coming to Australia I struggled with the language and cultural differences, but I adapted very quickly, I'm aware I was born in Iran, but Australia feels like home considering I've been raised here most my life. I’m currently completing year 12 VCE at [secondary college] and currently almost done a 2-year [Subject] certificate, my dream is to go to university next year and continue [Subject] and become [an Occupation], the most important thing to me is to make my parents proud considering they risked their lives bringing me here to create better opportunities and life experiences for me growing up than what they did, every day my parents continue to amaze me about how hard they worked for giving me this life that I'm so truly grateful for. Growing up in an Islamic country and family was very strict for me until my parents opened their hearts for Jesus our lord, growing up seeing how religious my parents became with the Christian faith really influenced me to learn about Christianity, slowly over the years I started going church with my parents and joining the kids youth program and studied my religion deeply, last year in august I decided to get baptized to become a true Christian. My parents always wanted me to grow up and chose for myself, and I let God into my heart. I also decided to join the kid's ministry as a helper then after a year got more knowledge and became a teacher to those children in my church, I absolutely love what I do at church & constantly teach children about God every Saturday at church.

    …

    Recently I was faced with a lot of challenges in my life, I got ran over by a car [in] December 2022 and now 6 months passing I am still struggling physically and mentally, the accident caused a few injuries such as a broken foot it took me 3-4 months to even start learning how to walk again, I still limp and have a lot of pain from it. I'm no longer able to go gym and [Sport] as those were my strongest hobbies for years. I cant walk long distances either and suffer from PTSD from roads & cars. This was a massive change in my life that will always affect me but my faith is so strong that I know God will put me back on my feet.

30. At the hearing the daughter explained that she speaks minimal Persian but can understand it at a conversational level. She can speak some Kurdish and understands little of Iranian culture. She has a connection to Iran only by way of her family but otherwise has no desire to learn about the country.

31. The daughter said that her personality is different to the women in Iran that she knows through her conversations with her relatives. She said that she speaks to her cousins in Iran and notices how they act differently describing it as ‘modestly’ and ‘strictly’. She said that her parents raised her as being open minded whereas in Iran it is completely different. She is concerned that were she to live in Iran she would not be able to wear what she likes, to believe what she likes and even just to have her hair down.

32. As noted in her statement and reiterated at the hearing, she has become a practicing Christian attending the youth group of her church. She has been involved since she was [Age] years old in the Kid’s Ministry and a year later, she became a teacher in the Kids Ministry. She is a dedicated participant in church activities. She expressed her need to go to church as being a part of her community and that she feels closer to God while in church rather than praying and reading the Bible at home. 

33. She is concerned about how she will be treated in Iran as a woman, a concern that is particularly pertinent in recent years with the protests arising from the murder of Mahsa Amini.

    DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[6]

    [6] DFAT [2.144]

34. The daughter is completing her VCE and is in her final year aspiring to become [an Occupation]. I noted that in Iran more women go to university than men. She said that she knew little about Iran but knows that she would have to restart her studies as she cannot read and write to an adequate level in Farsi.

35. She has not had her protection visa claims considered separately to those of her parents while a minor, instead she was added to the application as a member of the family unit and was granted a visa as a member of the family unit. As such the applicant meets the criteria identified in PAM3 for the Department to forward to the Minister a request to consider lifting the s 46A bar.

36. While the daughter would have the opportunity to apply for a protection visa, at which point she could air her fears of returning to Iran. But even by going down this path she would be separated from her parents who would be placed into immigration detention, as detailed below, and she too may face similar circumstances unless or until her protection visa application was prepared, and a Bridging Visa granted by the Department. As such I place moderate weight against cancellation based upon the impact of the consequential cancellation of the daughter’s visa.

    The best interests of the children

37. The applicants have two children, [an Age]-year-old Australian citizen son and the other, [an Age]-year-old citizen of Iran. Only the son falls under the Convention on the Rights of the Child as he is both presently within the jurisdiction of Australia and under the age of 18 years old.

38. Article 3.1 of the Convention on the Rights of the Child (CRC) states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

39. When considering the best interests of the son I note that the cancellation of his parents’ visas would also lead to the cancellation of his sister’s visa as a consequential cancellation. As such, were their visas cancelled the child would face a situation of either remaining in Australia on his own under the care of another family, under the care of his sister who would most likely be granted a bridging visa were she to apply for a protection visa, or by choice accompanying his family who would be detained in immigration detention for the reasons given below.

40. There is considerable evidentiary material accessible to this tribunal that emphasises the adverse impact of immigration detention to children.[7]

    [7] Shidan Tosif ,Hamish Graham,Karen Kiang,Ingrid Laemmle-Ruff,Rachel Heenan,Andrea Smith,Thomas Volkman,Tom Connell,Georgia Paxton, ‘Health of children who experienced Australian immigration detention,’ Plos One, March 9, 2023

41. Even were the parents to choose to return to Iran rather than stay in immigration detention the child faces other challenges. He does not read or write Farsi which would require the applicant starting schooling afresh. This would have a wide-ranging impact on him socially as he would be unable to socialise with other children but also developmentally as he would revert to being surrounded by school colleagues of a lower grade.

42. He is a practicing Christian who attends a Christian school but in the eyes of the Iranian government and community he is from a Muslim family and would be expected to practice Islam. His Christian faith was described as strong. While he may not have dedicated himself to Christianity of his own volition free from his parents’ influence, and as such he may not maintain his faith as he grows older, he is completely lacking any knowledge of Islam. In Iran boys of his age are required to participate in the practices of their faith.

43. Evidence was provided by [Reverend C] in his submission of the situation in Iran:

    In Iran, the practice of Islam is mandatory for children who attend school, and also for adults in many workplaces. [The first applicant]’s children have been growing up here and practicing Christianity. They do not have any familiarity with Islam and the Islamic environment.

    It is highly unlikely that the Iranian authorities will not accept their conversion to Christianity, so they will be forced by the education system to practice Islam. If this family is sent back to Iran, [the first applicant]’s children will be extremely vulnerable to discrimination and abuses at school. They have no experience of keeping their Christian faith hidden, and as someone who has gone through the Iranian school system, I believe it will be impossible for them to do so. This will cause psychological damage, and they could even be physically abused by teachers or other students and their families, with no possibility of legal recourse because are considered apostates.

44. The child’s mother gave evidence that she was required to fast during the month of Ramadan since she was 8 years old.

1. The child’s family in Iran are poor with limited resources to support their transition back to Iran even if they were willing to do so which is doubtful considering that they abandoned their faith and as such would face persecution.

2. In addition, that [Master F]’s parents are Christian converts, the child risks harm befalling his parents. DFAT provides the following assessment of the situation of Christian converts:

   DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed…DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds…DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[8]

   [8] DFAT [2.88]

3. [Reverend C] wrote, ‘We have also encountered a case where children have been taken away from a family after an Iranian parent converted to Christianity. We believe there is a risk to this family of losing custody of their children if they return to Iran.’

4. In summary, if the visas of the first and second named applicants were to be cancelled then the future of the Australian citizen child is either long term separation from his parents under the supervision of a teenage sister or another family, long term detention on Australian soil, or considerable challenges in Iran including potentially being separated from his parents and having to adapt to a new language and adopt a new religion with severe changes to the life of the child. These all carry severe impacts on the child. For this reason, I place an extremely heavy weight against cancellation when considering Australia’s obligations under the Convention on the Rights of the Child. 

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations and whether there are mandatory legal consequences.

100.   If either of the first or second applicant’s visas are cancelled and they exhaust any rights of judicial review, they will be unlawful non-citizens. Unless the applicants could regularise their position, they face the prospect of an extended period in detention for the reasons explained below.

101. Due to the operation of s 46A the applicants, as unauthorised maritime arrivals, are unable to apply for a further visa unless the Minister lifts the bar ‘in the public interest’. The Minister has provided guidelines as to which cases should be referred to for consideration under the public interest power. There are no relevant category of cases that meet the circumstances of the applicants such that the Department should forward a request to the Minister to lift the bar.

102. Due to the operation of s 48A of the Act where a protection visa holder has had their visa refused or cancelled, the citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and specifically includes temporary protection visas such as the one the applicant held.

103. As the lifting of the ss 46A and 48A requires active intervention by the Minister which would be highly unlikely and speculative to assume I find that the status quo remains and specifically that the bars remain in place.

104.   The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.

105. When all of these legislative pathways are considered, it is clear that the applicants do not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removed.

106. Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non-citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non-citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the relatively new ss 197C(3) and 197D which entered into force by way of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) that came into effect on 25 May 2021.

107.   In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken.

108. A full accounting of these new process was undertaken in a separate matter, 1901883 (Refugee) [2021] AATA 3216 (2 September 2021) which was heard by this member and Deputy President Redfern.

109.   The new process created by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) is untested in that an applicant has not seen through the entire process including availing themselves of the opportunity to appeal before the Tribunal. As such the length of time it would take is unknown but based upon current lengthy processing times it would amount to a lengthy period and as such the applicant could remain in detention for an extended period until an outcome is finalised.

110.   Depending upon each of the applicant’s claims at the point in time when their circumstances are considered and depending upon the situation in Iran, the applicants may retain the protection finding or alternatively be found that they are ‘no longer’ persons for whom a protection finding would be made (s 197D(2)) which would then, under usual circumstances, open a pathway to removal.

111. If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between the cancellation of their original visas for the reasons of the provision of incorrect information would impact the situation other than that they would remain in immigration detention. This is because while s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’

112. Alternatively, if the applicants’ protection findings are no longer in place the applicants still cannot be removed under s 198 for the reason, unique to Iranian nationals, that the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018. This would apply to the applicants because they arrived in Australia prior to that date.

113.   There is no information before me to suggest the applicants may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country. 

114.   As such, the applicants face an extended period in detention as either their protection findings are reaffirmed, but future Ministers do not draw on their powers to resolve the impasse in a manner favourable to the applicants, or alternatively the protection finding is no longer in place, but they refuse to return voluntarily.

115. An alternative possibility that arises during the applicants’ detention that may open a pathway away from this impasse is for the Minister or a future Minister to use his or her powers under s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens being placed in what is colloquially known as ‘community detention’.

116. But there are guidelines for Departmental officers considering submitting recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination. Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is where, ‘where a person knowingly fails to provide information, or provides misleading information, about their identity (such as age, nationality, citizenship or ethnicity).’

117.   If the Department did nevertheless choose to forward the request there is further guidance from the Minister of what relevant information will be taken into consideration. In the circumstances of this case there are two:

·where the person has a close relationship with an Australian citizen or permanent resident and not making a Residence Determination would result in irreparable harm and continued hardship to an Australian citizen or permanent resident;

·any mitigating circumstances (in particular, any health issues that may have impacted on a behaviour of a person); and/or

118.   How the Department deals with the applicants’ past provision of incorrect information with regards to the above criteria for the forwarding of requests to the Minister would be speculative and as such I once again assume that the status quo would remain, namely that the Minister would not make a residence determination.

119.   As such I find that as the law stands were their visas to be cancelled the applicants are liable to be held in immigration detention for an extended period. For this reason, I place heavy weight against cancellation.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

120.   The applicant’s representative made the case that the applicants had intended to declare the incorrect information but that they did not know how to go about it and asked the Tribunal to place some weight against cancellation for the reason of their initiative to report to the Department.

121.   He claimed that the date of the translation of the Iranian documents indicates that they had initiated the process. But I note that the date of the translations is 9 March 2021 and the notice sent by the Citizenship delegate including adverse information was 17 February 2021 For this reason, I do not accept this premise. It appears that the basis of this argument is an unintentional error with the year suggested by the migration agent being misread as 2022 rather than 2021. For this reason, I place no weight on any claimed voluntary revelation of their true identity.

Conclusion

122.   When considered cumulatively, the circumstances of the children both as a result of Australia’s obligations under the Convention on the Rights of the Child and the future hardship that would be faced by the third named applicant arising as a result of the consequential cancellation, together weigh heavily against cancellation.

123.   As does the very likely consequence of extended detention for the first named applicant and her husband, the second named applicant, who is disabled.

124.   Also contributing heavily were the applicants’ present circumstances which included their health and the associated superior care that they receive in Australia along with their spiritual needs that can only be provided for in Australia.

125.   Other moderately weighted considerations were the length of time that they have lived in Australia which for the third named applicant amounts to nearly her entire life and the substantial contributions to the community the first and third named applicants have made through their church.

126.   Together these elements outweigh those that were identified as supporting cancellation including the nature of the incorrect information provided, the place it played in the delegate’s original decision and the circumstances surrounding the provision of incorrect information.

127. I have 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, I conclude that the visa should not be cancelled.

DECISION

128.   I set aside the decision under review and substitute a decision not to cancel the first and second named applicant’s Subclass 866 (Protection) visa.

129.   The Tribunal has no jurisdiction with respect to the third named applicant.

Denis Dragovic
Deputy President

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.