2208399 (Refugee) - [2022] AATA 5002

2208399 (Refugee) [2022] AATA 5002 (28 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Leah Perkins (MARN: 1386236)
CASE NUMBER:  2208399
COUNTRY OF REFERENCE:                   Iran
MEMBER:Alison Murphy
DATE:28 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 28 November 2022 at 11:08am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information provided in protection application – there was non-compliance by the applicant in the way described in the notice – applicant and children are Iranian citizens and have been since birth –not stateless as claimed – major depressive disorder with anxious distress – Department has made no attempt to detain him – suffers from very serious mental and physical health conditions – decision under review set aside

LEGISLATION
Migration Act 1958, ss 46A, 101,102,103, 107, 109, 189, 197, 198, 438
Migration Regulations 1994, r 2.41, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 did not comply with s 101(b) because he provided incorrect information about his citizenship in the visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
This Tribunal (differently constituted) first determined the review on 16 August 2016, finding that the ground for cancellation was made out and affirming the decision to cancel the visa. The Tribunal’s decision was set aside by order of the Federal Circuit and Family Court of Australia on 10 May 2022. By judgment the court held that the first Tribunal had failed to consider the applicant’s clearly articulated claim that:
. . . he would not voluntarily return to Iran; Iran would not accept involuntary returnees; and, in circumstances where he was not returning voluntarily, he would be the subject of indefinite detention if Iranian authorities did not allow him to return to Iran.[1]
[1] DDP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 338 at [32]
As a consequence of the court’s judgment the Tribunal’s decision was quashed and remitted back to the Tribunal for determination.
The applicant appeared before the Tribunal on 16 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s social worker, Ms [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages who participated by video conference.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND TO THE REVIEW
The applicant is a [age]-year-old male who arrived in Australia as an unauthorised maritime arrival in November 2009. In March 2010 he lodged an application for a protection visa, identifying himself as [Name 1], a Faili Kurd born a citizen of Iraq, who lost his Iraqi citizenship and became stateless under the regime of Saddam Hussein. He claimed that he was formerly resident in Iran where he and his children were denied basic rights because of their identity as undocumented stateless Faili Kurds and that he could not return to either Iraq or Iran. On the basis of the information he provided he was granted a protection visa on 19 March 2010.
On 28 June 2010, the applicant legally changed his name to [Name 2].
In November 2010, the applicant proposed his family’s application for a Global Special Humanitarian (Subclass 202) visa. That visa application was refused on 8 June 2015.
On 30 June 2013, the applicant sought to sponsor his wife and their two young children to Australia by lodging a partner visa application. In support of that application they provided documents including Iranian passports for the children, shenasnamehs in the names of the applicant’s wife and their two children, and educational documents issued to the applicant’s daughter. Those documents were subsequently used by the Department to reassess the information given by the applicant in his protection visa application, namely that he and his children were stateless and not citizens of Iran.
On 19 January 2015 the Department sent the applicant a Notice of Intention to Consider Cancellation of the visa pursuant to s 107 of the Act (the s 107 notice), alleging that he gave incorrect information in the protection visa application. On 16 August 2016 a delegate of the Minister decided to cancel the applicant’s protection visa and that decision is the subject of the current review.
On 7 November 2016 the partner visa application was refused on the basis that the applicant’s sponsorship was no longer approved or in force because the applicant was no longer a permanent resident or Australian citizen. At hearing the applicant’s representative advised that a review of that decision was currently before the Tribunal awaiting the outcome of the current review.
ISSUES FOR determination
The issues in this case are:
· whether the ground for cancellation is made out in respect of the applicant; and if so,
· whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s 109 was not enlivened.
DOCUMENTS BEFORE THE TRIBUNAL AND NON-DISCLOSURE CERTIFICATE
The Tribunal has been provided with the Department’s files in relation to the grant and cancellation of the applicant’s protection [visa]. That file contains copies of some documents from the applicant’s protection visa application file as well as documents provided in response to the Notice of Intention to Consider Cancellation of the applicant’s visa.
The Tribunal has also been provided with the Department’s file in relation to the partner [visa]. The delegate has placed restrictions on some of the material contained in each of those files by issuing two certificates under s 438 of the Act, each dated 6 September 2016. Each certificate states that disclosure of the certificated documents would be contrary to the public interest because the folios specified contain documents relating to the Department’s business affairs and/ or law enforcement methods. At hearing the Tribunal provided the applicant’s representative with copies of the s 438 certificates.
Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
Notwithstanding the certificate, it was apparent from the pre-hearing submissions that the applicant and his representative have already had access to the certificated material in the partner visa file under Freedom of Information (FOI) provisions. At hearing the applicant’s representative confirmed that the applicant had already had access to each of the documents referred to in the s 438 certificate on the partner visa file, being folios 92, 93 and 150ꟷ156. As such it is unnecessary for the Tribunal to consider any further disclosure of this material.
In relation to the s 438 certificate on the partner visa cancellation file, I have had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties and weighed that up against the requirements of procedural fairness owed to the applicants in the current review. The documents concerned relate to the Department’s investigative processes about the genuineness of the identity documents provided by the applicant for his family members. The Department’s belief that the identity documents are genuine and indicative of the citizenship of the applicant and his family is expressly set out in the s 107 notice and the delegate’s decision. Further, as set out below the applicant now concedes that those identity documents are genuine and that he is an Iranian citizen as alleged by the notice. In these circumstances the Tribunal has decided not to exercise its discretion to disclose the documents in the certificated folios.
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 s 107 notice 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), which requires that a non-citizen must fill in or complete his or her visa application form in such a way that no incorrect answers are given or provided.
The s 107 notice is dated 19 January 2015 and alleges that the applicant gave incorrect information in the following respects:
·At question 9 of Part B of the Form 866 when he declared that his children [are] stateless, when they hold Iranian shenasnamehs and passports and would appear to be Iranian citizens;
·At question 7 of Part C of the Form 866 when he declared that his date of birth is [Date 1], when documents provided in support of the partner visa application indicate his date of birth is actually [Date 2];
·At question 8 of Part C of the Form 866 when he declared that his place of birth is [Town 1], Iraq when documents provided in support of the partner visa application indicate he was born in [named] County, Ilam Province Iran;
·At question 19 of Part C of the Form 866 when he declared that his citizenship at birth was Iraqi, when documents provided in support of the partner visa application indicate that he has been an Iranian citizen since birth;
·At question 20 of Part C of the Form 866 when he declared that he was stateless, when documents provided in support of the partner visa application indicate that he has been an Iranian citizen since birth;
·At question 23 of Part C of the Form 866 when he declared that he lost his citizenship under Saddam Hussein’s regime, when documents provided in support of the partner visa application indicate that he has been an Iranian citizen since birth;
·At questions 42 to 46 of Part C of the Form 866 when he declared that his reasons for claiming protection were set out in a statutory declaration in which he claimed he was born in Iraq; was no longer a citizen of Iraq and that he had been denied basic rights in Iran as he was not a citizen.
Following the issue of the s 107 notice there was a significant delay in proceedings while the applicant sought access to his files under FOI processes. During that time the Department commenced International Treaty Obligations Assessment process.
The applicant responded to the s 107 notice on 21 January 2016. In essence the applicant denied providing incorrect information to the Department in his protection visa application and maintained that the information he gave about his citizenship was correct. He stated that the identity documents submitted in support of the partner visa application were false documents obtained illegally in order to satisfy the Department’s repeated requests for these documents. He stated that despite his attempts to explain that he was unable to provide these documents due to his family’s statelessness he was repeatedly warned by the Departmental delegate in Tehran that if he did not provide such documents, his family’s visas would be refused. The applicant claimed he had no choice but to obtain false documents illegally in order to satisfy the requests of the Departmental delegate and so he paid 20 million Iranian Rial to a person in Tehran to prepare the documents.
Before the first Tribunal and during the proceedings before the Federal Circuit and Family Court of Australia, the applicant maintained that he was stateless and that the identity documents provided for his family members in the partner visa application were not genuine. Rather the applicant claimed that the identity documents were false and had been obtained because the family had been advised that the partner visa application would not be progressed until they were provided.
However, in submissions lodged prior to the Tribunal hearing on 14 November 2022, the applicant acknowledged that he and his family members are in fact Iranian citizens and the identity documents provided to the department for his family members are genuine. The applicant conceded that he had given incorrect information in his protection visa application in the manner set out in the notice.
At hearing, and consistently with his personal statement dated 10 November 2022 and lodged with the Tribunal on 11 November 2022, the applicant gave evidence that he is an Iranian citizen. He was born in [Village 1], Iran and lived there until the family moved to Tehran when he was aged about [age] years. He married his wife [in] about 1985 and his wife and children are Iranian citizens born in Iran.
The applicant worked as a [occupation] for a [factory] and later owned a [store]. Since the applicant’s arrival in Australia in 2009, his two eldest daughters have completed their schooling and are married and live with their own families. His younger daughter [is] currently studying a [degree] [at] university while his son [has] enrolled in university but not commenced his studies to avoid being called up for military service through the university.
At hearing, the applicant agreed that he gave incorrect information in the manner set out in the s 107 notice. Specifically he conceded that he and his children are Iranian citizens and have been since birth, that he was born in Iran and not in Iraq and that he and his children were not denied education or employment opportunities or been discriminated against for reasons of their statelessness as set out in the protection visa application.
In relation to his date of birth, the applicant gave evidence that he did not know how the discrepancy arose. He said he knew he was born in [year], but that in all honesty he didn’t know the exact date but he generally accepted the date in his Iranian documents to be correct. The Tribunal notes that the shenasnameh submitted to the Department for the applicant’s wife records the applicant’s date of birth as [Date 2] and refers to him as being the holder of his own shenasnameh. The applicant’s own shenasnameh and other Iranian identity documents have not been provided to the Department or the Tribunal. In these circumstances the Tribunal considers the applicant’s wife’s shenasnameh to be the most reliable evidence of the applicant’s date of birth and finds that to be [Date 2]. For these reasons the Tribunal finds the applicant gave incorrect information in the protection visa application at question 7 of Part C of the Form 866 when he declared that his date of birth is [Date 1].
In view of the applicant’s evidence that his children are Iranian citizens, the Tribunal finds he gave incorrect information in the protection visa application at question 9 of Part B of the Form 866 when he declared that his children [are] stateless.
In view of the applicant’s evidence that he is an Iranian citizen who was born in Iran and has been an Iranian citizen since birth, the Tribunal finds he gave incorrect information in the protection visa application at questions 8, 19, 20, 23 and 42–46 of Part C of the Form 866 when he declared that he was an Iraqi born Feili Kurd who became stateless when he lost his Iraqi citizenship under Saddam Hussein’s regime and described his experiences growing up as a stateless Feili Kurd resident in Iran.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the s 107 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 Migration Regulations 1994 (Cth) (the Regulations).
The correct information
The correct information is that the applicant and his family members are Iranian citizens and they are not stateless as claimed in the protection visa application. The correct information is that the applicant and his family members were not denied educational or employment opportunities in Iran or otherwise discriminated against because of their statelessness and the applicant completed military service as an Iranian citizen. The correct information is that the applicant left Iran legally on his own genuinely issued Iranian passport.
I weigh this factor in favour of cancelling the visa.
The content of the genuine document (if any)
I note the delegate’s findings in the cancellation decision concerning the genuineness of the Iranian passports held by the applicant’s children. However, this prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).
I consider this factor is not relevant to my consideration.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The visas were granted following a Refugee Status Assessment which was followed by a Protection Visa Decision record in respect of the applicant. While both of those documents are undated, the Department’s movement records indicate that the visa was granted on 19 March 2010. The Protection Visa Decision records that the delegate accepted the applicant to be stateless and that the discrimination he faced in Iran as a stateless Faili Kurd cumulatively amounted to a well-founded fear of persecution. In these circumstances the Tribunal is satisfied that the decision to grant the protection visa was based wholly on the incorrect information.

I weigh this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
In a written statement lodged with the Tribunal prior to hearing, the applicant made new claims as to his reasons for leaving Iran and his fear of returning there, discussed further below. He stated that he did not tell the truth about his claims earlier because he was scared the information would be leaked to the Iranian authorities. He also held fears for his family and believed that if he was returned to Iran and the Iranian authorities found out he was claiming asylum due to his protest involvement, he would be executed.
At hearing the applicant agreed that he provided the incorrect information in order to make it more likely that his visa would be granted. The Tribunal finds the applicant provided the incorrect information in order to increase his prospects of being granted the visa.
I consider this factor weighs in favour of cancelling the visa.
The present circumstances of the visa holder
Prior to the cancellation of his visa, the applicant was working in a [shop] and sending money home to support his family in Iran. However, since the cancellation of the visa in August 2016 he has been living in extremely difficult circumstances. Prevented from making a valid application for any other visa type by operation of s 46A of the Act, he has been living unlawfully in the community where he has experienced poverty, homelessness and severe health issues.
Medical evidence before the Tribunal indicates the applicant suffers from major depression and diabetes and has a recent history of [Medical condition 1] for which he requires ongoing treatment from a GP, a psychologist, a psychiatrist and a [specialist]. The management of these serious medical conditions has been further complicated by the fact that the applicant has not been eligible for Medicare since his visa was cancelled in 2016. While he appears to have had some access to Centrelink benefits up until mid-2021 when they were cut due to his visa status, neither his representative or his social worker were aware of the basis on which those payments were made to him given persons who do not hold a visa of any kind will not generally be eligible for Centrelink or Medicare benefits. His representative submitted that as he has not been granted a Bridging Visa E, the applicant remains without work rights, access to Centrelink or Medicare and speculated that any Centrelink payments received since the visa was cancelled may have been the result of administrative error by Centrelink.
The applicant was diagnosed with [Medical condition 1] for which he underwent surgery in March [2019]. During that surgery, it was discovered that the applicant also had [another illness]. In June 2022, he was misdiagnosed with secondary [medical condition and] his psychologist reports this has had a profound effect on his mental health. His [treatment] has adversely affected his [body part] and he is on a waiting list [through] the local community health centre.
His social worker, [Ms A], employed by [name] (previously known as [ORGANISATION 1]) has been involved in his care since 2019 when he was referred to the [ORGANISATION 1] by [a] Hospital because of significant concerns around his health and social status. [Ms A] gave evidence that [ORGANISATION 1] does not charge for its services and she believed that public hospitals in Victoria provide care to all residents, regardless of visa status. At that time [ORGANISATION 1] was asked by the [Hospital] to provide nursing care to the applicant following his discharge from hospital after his [surgery].
While providing the applicant with post-surgical nursing care in the community, the [ORGANISATION 1] nurses raised significant concerns about his mental and physical well-being as well as his living conditions, resulting in an internal social work referral to [Ms A]. At this time the applicant was sharing a single room above a nightclub in [a suburb], where he was regularly exposed to people using drugs and alcohol in the laneway and entrance to his accommodation, while undergoing major surgery for [Medical condition 1]. [Ms A] gave evidence that the [ORGANISATION 1] staff had concerns for their own safety while providing care to the applicant in that location as well as the safety of the applicant.
[Ms A] and her employer subsequently assisted him into alternative accommodation in a shared house in [another suburb], but that became unsustainable after the applicant borrowed money from his co-tenants to pay the rent. He currently lives in a shared house with several other males of varying ages and nationalities and he is not eligible for various housing applications and grants due to his visa status. On occasion [Ms A] has been able to access Red Cross emergency relief for the applicant, but the recent demand for their services as the result of floods and other natural disasters has made that harder to obtain and she hasn’t been able to access sufficient funding to cover the cost of the applicant’s medications and basic living expenses. [Ms A] has linked him with a local GP who has referred him to a psychologist but is unaware of how or if those medical professions are being paid for treating the applicant.
At hearing the applicant gave evidence that he prioritised his rent over all other necessities of life, occasionally working unlawfully to pay the rent and often eating only a loaf of bread over a few days. Prior to the cancellation of his Centrelink and Medicare entitlements, he was able to obtain his medication at discounted rates but now pays full price. Consistently with various statements in the medical evidence before the Tribunal, the applicant stated that there are occasions during which he is unable to pay for his necessary medication for significant periods of time, despite the medical evidence that routine compliance with medication is vital to maintain stability of his health conditions. [Ms A] gave evidence that her employer has consented to her ongoing involvement with the applicant without payment, even now that he does not have ongoing nursing needs, because of their concerns for his health and safety and the fact [Ms A] has not been able to find any other service which will provide him with assistance thus allowing her to transfer his care.
The applicant’s treating psychologist [reports] he is suffering from major depressive disorder with anxious distress and nightmare disorder. He has been separated from his wife and children for 13 years and is isolated with almost no friends or family in Australia. [The psychologist] records that the applicant presents with severely depressed mood, continuous crying, constant thoughts of death, insomnia, psychomotor agitation, irritability, loss of energy, dizziness, headaches, extreme anxiety, worry and restlessness. It is noted that his cognitive abilities, including his memory and concentration, have been highly compromised and he barely remembers important dates and details about his history and has lost most of his ability to build relationships and communicate with people in the community. She notes that he is highly vulnerable, both mentally and physically, and that in her professional view his depression is related to the long term separation from his family and the decreasing hope of ever seeing them again.
At hearing the applicant gave evidence that his only plan was to reunite his family in Australia, who he has not seen for 13 years. In that respect the Tribunal notes the partner visa application for the applicant’s wife and children was refused on 7 November 2016, shortly after the cancellation of the applicant’s protection visa. The decision record shows that the partner visa was refused because the applicant is no longer a permanent resident of Australia following the cancellation of his protection visa and is therefore unable to sponsor his family. As at the time of this Tribunal’s decision, a review of the decision to refuse the partner visa is before the Tribunal (differently constituted) and awaiting the outcome of the current review.
I consider this factor weighs against cancelling the visa.
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 applicant maintained the incorrect information before the first Tribunal, and the Federal Circuit and Family Court. I consider this factor weighs in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate records that the applicant did not disclose that he was an Iranian citizen in his application for Australian citizenship. I consider this factor weighs in favour of cancelling the visa.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant provided information in support of the protection visa applications in 2009 and approximately 13 years have elapsed since then. I consider the long period in which the applicant has lived in the Australian community weighs against the cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate’s decision records that there are no known breaches of Australia’s laws since the non-compliance occurred. I give this factor some weight against the cancellation of the visa.
Any contribution made by the holder to the community
There is little evidence of any contribution to the community made by the applicant. The Tribunal notes his evidence that prior to the cancellation of the visa he was working in a [shop]. It is apparent that since the cancellation of the visa, the applicant’s mental and physical health problems and severe poverty have led to his almost total isolation. I give this factor some small weight against the cancellation of the visa.
Whether there would be consequential cancellations under s 140
The cancellation of the visas would not result in any consequential cancellations under s 140 and this factor is not relevant to my decision.
I consider this factor is not relevant to my consideration.
Whether the best interests of a child would be affected by cancellation, or consequential cancellation
The Tribunal is required to treat the best interests of the children affected by the decision as a primary consideration. While the applicant had two minor children when he arrived in Australia, the intervening 13 years means that they are no longer minors. At hearing the applicant’s representative confirmed that there were no other minor children affected by the cancellation.
I consider this factor is not relevant to my consideration.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
In this case the applicant was found to be a person to whom Australia owes protection under the Refugees Convention in 2010. On 8 June 2016, an International Treaties Obligation Assessment was completed by the Department. The delegate accepted that the applicant is a Feili Kurd but found he is an Iranian citizen and not stateless as was then claimed. The delegate considered country information about the situation for such persons in Iran and concluded that he was not owed protection by Australia.
Before this Tribunal, the applicant made new claims for protection. In summary he claims that around the time of Mahmoud Ahmadinejad’s election to President in 2009 he joined the protests as part of the Green Movement with five or six other men from his neighbourhood. He was motivated to do so because Kurdish people in Iran did not have freedom and faced discrimination. He claimed that one of the men he protested with was caught and executed and another two were caught and he does not know what happened to them. He fled Iran because he believed he was on the regime’s list and they would try to catch him too. He returned to [Village 1] while his wife and brother called the Iranian airport to check whether he was on a list barring him from leaving the country and when it was known that he was not on that list, he left Iran on his own Iranian passport for [a country] and then Australia.
However amendments to s 197C of the Act since the delegate’s cancellation decision render it unnecessary for this Tribunal to undertake any assessment of the applicant’s new claims. This is because the effect of the new s 197C(3) is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In this case the Department found the applicant was owed protection as a refugee and granted the protection visa in March 2010. In these circumstances s 197C(3) does not require or authorise his removal from Australia unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.
It is relevant to note that the Tribunal’s findings about the applicant’s Iranian citizenship in the current review do not operate to set aside the protection finding that was made in March 2010. Rather that protection finding will only cease to be operative if one of the circumstances set out in s 197C(3) apply.
In this case the protection finding made in 2010 has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engage protection obligations under s 197D(2), although it is open to the Minister to do so in the future.
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to his removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
However, for the reasons set out below the Tribunal considers that cancellation may lead to the prolonged detention of the applicant, or his continuing unlawful residence in the community.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
In considering the mandatory legal consequences to the cancellation decision, the Tribunal accepts that if the applicant’s protection visa remains cancelled he will be unable to make a valid application for any visa without the Minister personally intervening. This is because section 46A prevents ‘unauthorised maritime arrivals’ from making valid visa applications onshore unless they hold or have held a Class XE safe haven enterprise visa (SHEV) and satisfied prescribed employment, educational or social security requirements. The applicant has never held a SHEV and is therefore subject to s 46A.
The applicant’s representative advised the Tribunal that her firm had made numerous applications for bridging visa Es for the applicant since the protection visa was cancelled in 2016, however, he has never been granted a visa. Correspondence from the Department in respect of the most recent application for a bridging visa made in July 2021 confirms that visa application was deemed to be invalid by s 46A of the Act. Movement records confirm that the applicant has not been granted a visa of any kind since the cancellation of the protection visa in August 2016.
The Minister’s powers to intervene pursuant to s 48A and s 46A are only exercisable by the Minister personally. In the applicant’s case, the Minister has not lifted that bar to allow the applicant to lodge a valid application for a bridging visa in the six years since the applicant’s protection visa was cancelled. Correspondence from the Ministerial Intervention section of the Department dated 1 December 2021 confirms that an application for Ministerial Intervention has been made to the Minister, that the Minister’s powers are non-compellable and the Minister is not bound by any timeframes with respect to Ministerial Intervention requests.
As a consequence of s 46A, the applicant has been living unlawfully in the Australian community for six years, without the ability to work or to access Centrelink or Medicare. Although his visa status and whereabouts have at all times been known to the Department, his representative advised the Tribunal that the Department has made no attempt to detain him as required by s 189 of the Act. At hearing the applicant’s representative advised that they are aware of a significant cohort of unauthorised maritime arrivals in similar circumstances to the applicant, in that they have neither been granted a visa of any kind, nor have they been taken into detention as required by s 189.
It is unclear to the Tribunal how this situation has been allowed to continue over such a long period, given it is a mandatory requirement of the Act that a non-citizen who does not hold a visa be held in immigration detention. In this case the applicant has been refused multiple bridging visas over a period of six years, his whereabouts have been and continue to be known to the Department and yet he has not been detained as required by the Act. His ongoing residence in the community is unlawful and not countenanced by the Act.
If the applicant were held in immigration detention, he would be entitled to health care, food and shelter. As he is in the community without a visa of any kind, his circumstances are both unlawful and untenable. He is not permitted to work and has no entitlement to Centrelink nor any visible means of subsistence beyond charitable payments or loans from acquaintances. He is liable to be detained at any time. While he has been able to access some medical treatment through the hospital system, he has no entitlement to Medicare.
Such ongoing assistance as is available to him is being provided on a charitable basis, primarily by health professionals including [Ms A] who are concerned about his precarious circumstances. Even with the ongoing and dedicated assistance of his social worker [Ms A], it has not been possible to secure sufficient funding from any source to cover the cost of his medications and basic living expenses. As a consequence he has gone without both food and medication and lived in unsafe accommodation while recovering from major surgery. He relies on a charitable organisation to provide the [essentials] he uses on an ongoing basis and requires safe and hygienic accommodation to manage his [medical condition] without further medical complications.

Further, DFAT reports that Iran has a global and longstanding policy of not accepting involuntary returns and has refused to issue temporary travel documents to facilitate the involuntary return of its citizens. While Iran and Australia signed a Memorandum of Understanding including an agreement to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia, that does not apply to the applicant because he arrived in Australia in 2009.[2] As noted above, s 196 provides that unlawful non-citizens must be kept detained in immigration detention until removal. While this hasn’t happened in the applicant’s case, it is a mandatory requirement of the Act. As such the Tribunal accepts that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Iran voluntarily.
[2] DFAT Country Information Report: Iran 14 April 2020 at 5.27
As recorded in the Federal Circuit and Family Court of Australia judgment dated 10 May 2022 cited above, the applicant has consistently claimed that he will not voluntarily return to Iran. The Tribunal accepts that to be the case, noting that he has not voluntarily returned in the six years since his visa was cancelled despite the dire circumstances in which he has been living. If he will not return voluntarily and as Iran will not accept his involuntary return, he is liable to indefinite detention if his visa remains cancelled.
Should that detention eventuate, I accept it will cause significant hardship to the applicant. There is a significant body of psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention-related harm. The Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[3]
[3] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017
Should the Department continue to disregard the legislative requirements to take the applicant into immigration detention as he does not hold a visa, the deleterious effects on the applicant’s mental and physical health as described elsewhere in this decision will continue. Whether the applicant is detained or remains unlawfully in the community unable to make a valid application for any visa, I consider this factor weighs heavily against the cancellation of the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
If the applicant’s visa remains cancelled, he will face further prolonged separation from his wife and children. All of the medical evidence before the Tribunal indicates his ongoing separation from his family has greatly exacerbated his mental health conditions.
I consider this factor weighs against the cancellation of the visa.
EXERCISE OF DISCRETION
While I am required to have regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case, rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[4]
[4] MIAC v Khadgi (2010) 274 ALR438 at [68]
I have considered the factors which weigh in favour of cancelling the visa, most significantly that the applicant knowingly provided the incorrect information about his Iranian citizenship in his protection visa application in order to increase his likelihood of being granted that visa. The grant of the visa was based wholly on his claim to be stateless and I consider that had the correct information been known, he would not have been granted the protection visa. Further the applicant continued to assert that the incorrect information was correct to the first Tribunal and before the Federal Circuit and Family Court of Australia.
However, in balancing all of the relevant factors I consider that the matters to which I am required to have regard weigh overall against cancelling the applicant’s visa. In particular I give weight to the following matters:
·The applicant has been resident in Australia for 13 years, during which time he has been separated from his wife and children. If his visa remains cancelled, he will not be entitled to work nor be eligible to receive Centrelink or Medicare benefits. He suffers from very serious mental and physical health conditions which have been exacerbated by his severe financial hardship and long separation from his family. As well, his inability to pay for his medications [compromise] the ongoing management of his [medical conditions] and mental health conditions.
·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As the 2010 decision finding he engages Australia’s protection obligation was finalised at that time, he cannot now be involuntarily removed from Australia unless Australia’s protection obligations towards him are reassessed under the new provision set out in s 197D and he is found to be no longer owed protection by Australia. Even if such as reassessment were to be undertaken in the future, the Tribunal has accepted the applicant will not voluntarily return to Iran and DFAT advises that Iran will not accept his involuntary return.
·As such if the applicant’s visa remains cancelled, he will continue to be an unlawful non-citizen and the Act requires he be held in immigration detention under s 189 of the Act. The Department’s failure to comply with these provisions of the Act to date provides no legal basis for his continuing unlawful status in the community. That detention will potentially be prolonged as the applicant has no further avenues to regularise his immigration status without the intervention of the Minister. As noted above, such Ministerial intervention has not occurred since the visa was cancelled in August 2016.
·Detention will cause significant hardship to the applicant, who suffers from serious mental and physical health conditions which require ongoing treatment. Such persons have been identified by the Royal Australian and New Zealand College of Psychiatrists as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.
·If the applicant’s visa remains cancelled but the status quo continues and he is left in the community without a visa or any lawful means of subsistence, the applicant will continue to be reliant on charitable donations for food, accommodation and medication. Already that has caused the applicant to go without food and essential medication with significantly deleterious effects on the applicant’s mental and physical health and a corresponding burden on Australia’s public hospital system and charitable organisations.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
CONCLUSIONS
For the reasons set out above, 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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Alison Murphy
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.