2209648 (Migration)

2209648 (Migration) [2023] AATA 3551 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Anna Joyce Ryburn (MARN: 5511767)
CASE NUMBER:  2209648
MEMBER:Sean Baker
DATE:7 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 07 August 2023 at 11:42am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect answers provided in protection visa application – not stateless Faili Kurd but Iranian-born Faili Kurdish Iranian citizen – discretion to cancel visa – wife’s claims maintained in citizenship application – adverse information – citizenship conceded in response to department’s notice but claims on grounds of ethnicity and imputer political opinion maintained – review heard and determined together with family members’ separate reviews – detailed and credible oral evidence – advised by people smugglers – length of residence, wife’s mental health, older children’s education, work, relationships and liability for military service and Australian citizen youngest child’s developmental condition and limited language – best interests of child and family unity – non-refoulement obligations and possibility of prolonged detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 140(2), 375A
Migration Regulations 1994 (Cth), r 2.41
CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
1901883 (Refugee) [2021] AATA 3216
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the delegate found that the applicant had given incorrect answers in his visa application, and that the reasons for cancellation outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, children and nephew. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Non-Disclosure Certificate
As a preliminary matter the Tribunal notes that it has before it the applicant’s Departmental file relating to the cancellation of his protection visa. The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing a certificate under s375A of the Act, dated 18 August 2022. This states that disclosure of some information within the Department’s cancellation file would be contrary to the public interest because it would:
·prejudice a current or pending investigation of a possible breach or enforcement of the law;
·disclose or enable a person to ascertain the existence or identity of a confidential source of information;
·disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods;
·disclosure of information which was provided ‘in confidence’ may disclose or enable a person to ascertain the existence or identity of, a confidential source, and that the provider of information has not consented to the disclosure of the information to the review applicant.
The certificate then lists 11 documents/information, without particularising if all of the above applies to all or some of them.
Whilst it is clear that the above list may form the basis for a conclusion that the disclosure of the information would be contrary to the public interest, the reasons have not been particularised, and more centrally, there is no clarity as to which reasons attach to which information on the file, making it impossible to conclude whether the reasons are valid reasons in relation to each specific piece of information. Without this explicit identification, it is not possible to conclude that the certificate is valid, and I find on this basis that the certificate is invalid.
I considered whether there was utility in seeking to have the Department re-issue the certificate but decided that the information contained was not directly relevant to the decision, being information that had either been conceded by the applicant, or was not relevant to the cancellation itself. I decided therefore that there was not utility in doing so.
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.
On 15 February 2022, the applicant was sent a copy of the Notice of Intention to Consider Cancellation (NOICC) which advised the applicant that his visa may be cancelled under s109 because of concerns that he did not comply with section s101(b) of the Act.
The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects: that the applicant had provided incorrect information in relation to his protection visa application by claiming he was stateless and had no identity documents in Iran. He claimed he identified as Faili Kurd and had no rights in Iran. The applicant claimed feared persecution for reason of his ethnicity and imputed political opinion.
Subsequent information before the delegate then led them to conclude he may have been an Iranian citizen at the time of the protection visa application.
In more detail, this included information about the applicant’s wife’s familial links. On the applicant’s protection visa application lodged on 11 July 2012, he indicated that his wife was stateless. The s107 notice in the applicant’s case includes information of numerous relatives related to his wife, who reside in Australia. The notice indicates that the applicant’s wife’s brother had several children, one of whom had provided an Iranian identity document to an Australian government agency, which detailed his Iranian national identity number and father’s name. In addition, another of the applicant’s wife’s siblings’ child had also indicated that they and their parent were Iranian citizens. The delegate referred to Article 976 of the Iranian civil code which confirmed that if the applicant’s wife’s siblings were Iranian nationals, then this would confirm that his wife was also an Iranian citizen as she shared the same father as her siblings.
Secondly, the applicant’s wife’s citizenship application during which she had provided a copy of her Shenasnameh, (Iranian birth/identity document, issued to citizens) which indicated she was an Iranian citizen. The country information relied upon by the Department indicated that a Shenansnameh is only issued to Iranian citizens at birth and included the details of her parents, which also confirmed her parents were Iranian citizens.
Thirdly, Departmental movement records indicated that the applicant departed Australia on four occasions since being granted his Protection visa:
·     [August] 2013 to [October] 2013;
·     [August] 2016 to [November] 2016;
·     [September] 2017 to [October] 2017; and
·     [September] 2018 to [October] 2018.
On each of these travel occasions, the applicant declared his destination of travel and the country where he spent most of his time to be Iran. This was evidenced by his outgoing and incoming passenger cards.
Fourthly, his interaction with Australian Border Force Officers. [In] August 2013, the applicant was spoken to by an Australian border office at the time of his departure from Australia. He was questioned regarding his intended travel. The applicant advised the officer that he was returning to Iran for one month, where his parents and extended family resided. He also advised that he had resided in Iran for 30 years prior to his arrival in Australia.
[In] October 2018, the applicant was questioned upon his return to Australia. The applicant advised officers that his two oldest sons were Iranian nationals and did not return to Iran because they would be conscripted into the military. The delegate put to the applicant that if his two oldest sons were Iranian nationals, it followed that he, as their father, would also be an Iranian national. The applicant also indicated that he fled to Iran in 1985 and used to own a [shop] in Iran. The information provided during this interview contradicted the information provided in his statement of claims.
Further, Australian border officials located Australian Titre de Voyage travel documents on the applicant when they interviewed him [in] October 2018. It included a travel document in his previously held name. This travel document had Iranian visas attached for periods of [June] 2016 – [September] 2016, and [June] 2017 – [September] 2017. Two other travel documents were found. Two older Titre de Voyage travel documents, did not contain any Iranian visas or entry stamps for Iran.
Finally, in the applicant’s Protection visa application, he advised that his three eldest siblings were born, between [Year] and [Year] respectively. This suggested that his parents may have been residing in Iran prior to moving to Iraq and therefore, may have had Iranian ancestry.
Response to the NOICC
On 15 March 2022, the applicant provided the following documents as a response to the NOICC:
·     Applicant’s statutory declaration dated 15 March 2022;
·     Applicant’s wife’s medical report;
·     Applicant’s second son’s statement dated 15 March 2022;
·     Copy of the applicant’s second son’s Higher School Certificate;
·     Copy of the applicant’s third son’s Australian Birth Certificate;
·     Copy of applicant’s third son’s Australian Citizenship;
·     Copy of the applicant’s third son’s School Reports
·     Applicant’s third son’s Medical and Psychology Report and NDIS plan approval
Further submissions were made on 15 April 2022, and the following documents were provided:
·     Applicant’s written submissions dated 15 April 2022.
·     A translated copy of the applicant’s Iranian Birth Certificate;
·     A translated copy of the applicant’s Iranian national ID card;
·     A translated copy of the applicant’s wife’s Iranian Birth Certificate;
·     A translated copy of the applicant’s wife’s Iranian national ID card;
·     A translated copy of the applicant’s first son’s Birth Certificate;
·     A translated copy of the applicant’s second son’s Birth Certificate;
·     A translated copy of the applicant’s Marriage Certificate;
·     A copy of the applicant’s Australian Drivers Licence;
In the applicant’s responses he conceded he had provided incorrect information in his application for the Protection (subclass 866) visa. He stated the following information he provided was incorrect:
·     His citizenship (he is Iranian, not stateless)
·     Place of birth (born in Iran, not Iraq)
·     The citizenship of his two eldest sons (both are Iranian citizens, not stateless)
·     His wife’s citizenship (Iranian citizen, not stateless)
·     His claim to be undocumented, and that he was issued with a ‘White card’ (he was never issued nor used a white card)
·     His family was expelled from Iraq to Iran in around 1980 by Saddam Hussain
·     His parents’ citizenship (they were born in Iraq but are Iranian citizens)
·     His siblings’ citizenship (all siblings were born in Iran and are Iranian citizens)
The applicant provided evidence of his Iranian National identity card, as well as his Iranian birth certificate, together with relevant translations, which evidenced his claims to be a citizen of Iran. Also included in the NOICC response were the Iranian marriage certificate and birth certificates of both the visa holder’s elder sons, which evidenced his claims that these members of his family are also citizens of Iran.
He claimed that his journey to Australia was a matter of life or death, and he had no choice but to do what the smuggler who guided them told them to do. He also claimed he did not know anything about Australia’s immigration laws.
The applicant provided documentation to the Tribunal, set out and discussed below.
At the hearing the applicant conceded that he, and his wife and elder sons are Iranian citizens and not stateless. He maintains that they faced discrimination and harm as Faili Kurds in Iran.
On the information before me I find that the applicant provided incorrect information in his protection application in relation to his citizenship and statelessness for himself, his wife and two eldest children.
However, I do not accept, on the information before me, that it is established that the applicant had provided incorrect information in relation to questions 42 – 48 of his protection application Part C, nor his attached statement of claims. I do not accept that his entry and departure from Iran on four occasions establishes to the standard necessary that he has answered these questions incorrectly.
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 in relation to the questions about his own and his family’s nationality and statelessness.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.
In his response to the NOICC, the applicant stated that his visa should not be cancelled for the following reasons:
·     The applicant and his family have lived in Australia for over ten years, and consider themselves apart of the Australian community;
·     His two elder children were aged [Ages 1 and 2] upon arrival to Australia. They are now young adults and Australia is their home. Both are studying and consider themselves Australian;
·     His youngest son is an Australian citizen and was diagnosed with [Condition] in Australia, and is too young to live in Australia on his own;
·     The cancellation of the visa is going to cause significant family hardship;
·     His youngest son cannot speak Persian and cannot live in Iran due to the stigma attached to people with [Condition];
·     The applicant hates Islam and its practices, and has renounced Islam;
·     His wife is now Christian and struggles with mental illnesses; and
·     His children would be forced to complete compulsory military service upon return to Iran.
These matters will be addressed in further detail below.
On 13 May 2023, the applicant submitted the following documents to the Tribunal:
· Applicant’s statutory declaration dated 12 May 2023;
· A Speech Pathology Progress Report for his third son dated 15 April 2022.
On 15 May 2023, the applicant provided a copy of his current Australian TDV and the previous two which he had held in different names.
On 19 July 2023 the applicant provided:
· A further statutory declaration dated 18 July 2023;
· A name change certificate
On 20 July 2023 the applicant provided:
·     Shenasnameh with translations for the family and relatives;
·     A statutory declaration of his second child, dated 19 July 2023;
·     A statutory declaration made by a friend of the applicant, dated 19 July 2023;
·     The death certificate with translation, and a photograph of the gravestone of, with translation, the applicant’s father.
At the hearing I spoke with the applicant, his wife, their two eldest children and the applicant’s nephew. They provided detailed specific evidence to questions and I found their evidence to be credible.
The applicant explained that he was not working, he was looking after his wife and son. He said that his son had some verbal ability but relied on the applicant and his wife for his daily needs. They did receive support from the NDIS for a speech therapist. The applicant said that if they had to live in Iran his son would have little or no health support. He conceded that there was a public health system but said that there was little support for those with [Condition].
The applicant told me that he had worked in a [factory] previously. However, his wife had become sick and he had become her carer. He said that at the moment his wife and child had payments from Centrelink and the family was supporting them.
I asked the applicant why he had changed his name before each occasion he had travelled to Iran. He said that he had done this to gain a visa from the Iranian Embassy and to not have problems when he went back there.
The applicant detailed the hardship that he and his family had experienced and would experience if the visa remained cancelled. He said he did not have access to Medicare, nor to work, he did not receive any income as a carer to his wife and son.
He said that they regretted the incorrect information but asked what they should do now. He said they had provided the incorrect information because they had been told to do so by the people smugglers in [Country], these people told them to throw their passports in the water and had said that if the applicant and his family did not do these things, they would be returned to Iran by the Australian government.
The applicant said that he could not take his children back to Iran, his youngest child is an Australian citizen, speaks only English and he becomes upset and angry when the family speak Kurdish or Farsi.
I spoke with the applicant’s family members. They were able to explain the effect that the cancellations had had on them. Where relevant these are discussed further below.
the correct information

The correct information is that the applicant and his family are Iranian citizens, and are not stateless. The applicant was born in Iran, not Iraq. He holds Iranian documentation. The applicant provided this information to the Department in his response to the s 107 notice. He conceded that he had provided incorrect information in his protection application and that he had done so on the advice of the people smugglers to gain a favourable immigration outcome. Whilst the applicant has expressed a level of contrition, the conduct in providing incorrect information is serious because the protection visa regime relies on applicants being truthful about their experiences and national status. Not being truthful in visa applications weakens the visa regime and may, at its most extreme, impact on community support for migrants and those owed protection being able to come to and live in Australia.
I give this consideration significant weight in favour of cancelling the visa.
the content of the genuine document (if any)
Not relevant.
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
I accept the information set out in the delegate’s decision that the decision to grant the applicant his visa was based, at least in part, on a finding that the applicant was stateless, and this finding was relied on to conclude that the applicant was owed the protection visa.
Whilst there is some suggestion that the visa may have been granted if the applicant had been truthful and claimed to be a document Kurd subjected to discrimination and harm on this basis, it is not possible to determine whether this would have been the case.
I give this consideration significant weight in favour of cancelling the visa.
the circumstances in which the non-compliance occurred
As above, the applicant has stated that he was told by the people smugglers to provide the incorrect information. I accept this, and I accept that the applicant felt compelled to do so by the people smugglers telling them that otherwise they would not be accepted for protection in Australia. The applicant feared that he and his family would be detained and not released if they arrived in Australia and were truthful about their nationality.
I appreciate that this would have been a very difficult time for the applicant. I appreciate that the applicant may have believed he had no or little choice but to provide the incorrect information.
However, the applicant would have been, or could reasonably be expected to have been aware that a fundamental requirement in any process with as much significance as the protection regime is the duty of honesty. By providing the incorrect information he did not meet this standard.
Therefore, despite the understandable reasons why he felt compelled to not tell the truth, the obligation to be truthful outweighs this and means that I must give this consideration significant weight in favour of cancelling the visa.
the present circumstances of the visa holder
The applicant is a carer for his wife who suffers mental health symptoms associated with severe depression with psychosis and former post partum depression. He also cares for their third son (aged [Age], Australian citizen) who has been diagnosed with [Condition] and associated delays in all areas of adaptive functioning with severe receptive and expressive language delay. The assistance of the NDIS is limited to a speech therapist.
The applicant lives in the family home and has the financial and emotional support of his family.
He expressed anxiety and concern about the effect the cancellation had had on his family, including his wife and three children, and to a lesser extent on himself. Testimony from his wife and children indicated that they were concerned about the applicant.
The information before me indicates that the applicant is living a somewhat precarious existence since the NOICC and the cancellation, he does not have a clear sense of what the future holds, and this uncertainty has impacted his and his family’s life.
I give this consideration some weight towards the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As is noted by the delegate, the applicant, once confronted with the concerns about his claims in the NOICC, conceded the incorrect information and engaged with the Department.
I give this consideration a little weight in favour of the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
The delegate’s decision notes that the applicant continued to claim to be stateless and not have citizenship of any country in his application for the Resident Return visa he applied for on 7 September 2017. No other instances of non-compliance are before me. I give this factor some little weight towards the visa being cancelled.
the time that has elapsed since the non-compliance
As noted by the delegate, the non-compliance occurred over ten years ago. In this time the applicant, and in particular his family, have established very considerable ties with Australia, including the applicant’s Australian citizen child, the relationships of the two adult children, their work and study. The family gave evidence at the hearing that they consider themselves Australian, and have made lives for themselves here.
The delegate notes that the applicant had opportunity to provide the correct information to the Department. Whilst I consider this to be the case, this has been considered above.
In considering this factor and the weight to be given to it I am conscious that the applicant provided incorrect information and that this was a serious instance of non-compliance given the information went to whether the visa would be granted, and that the visa was a permanent visa.
But the very considerable time that has elapsed since the non-compliance argues against the cancellation of the visa. It appears that, the applicant and his family having lived in the Australian community for such a long period of time as full members of that community suggests that cancellation would be disproportionate and unfair. Disproportionate in the sense that for the applicant and his family they have made lives for themselves in Australia in the belief that they would remain here indefinitely given they were granted permanent visas, and unfair in the sense that the non-compliance having occurred so long ago, it is difficult for the applicant to provide specific information about his state of mind, his motivations, and any supporting documents he may have then had.
I give this consideration some weight towards the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate notes that there is no evidence of the applicant having been charged or convicted to date. There is no information before me that this has changed since the cancellation decision.
I give this consideration a little weight towards the visa not being cancelled.
any contribution made by the holder to the community.
The applicant, when asked, said that they had bought their children here and their children were helping the economy and paying taxes, they had also as a family purchased a house. He acknowledged that the Australian Government had helped them but said that they had also contributed. He said that they still had assets in Iran they wished to sell and then contribute to Australia. The applicant’s two adult children gave evidence that they had been involved in community activities including theatre and sports. The applicant said that they had tried to be good citizens and give whatever they could to the community.
I accept that the applicant and his family have contributed to some extent socially and economically to the Australian community and I give this consideration a little weight in favour of the visa not being cancelled.
Further relevant considerations
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
The delegate notes that the applicant’s son and nephew were granted visas as members of the applicant’s family unit and may be liable to consequential cancellation under s 140(2). Indeed, they did have their visas cancelled as foreshadowed. Whilst the applicant’s wife, and their other elder child also had their visas cancelled, this appears to have been on their own basis.
The two consequential cancellations are an anticipated part of the cancellation process. The rationale is that if the primary visa holder was not entitled to the grant of the visa then the holders of secondary visas or those granted on the basis of their association with the primary visa holder should not be entitled to hold the visas.
Such rationale however is weakened by considerations canvassed elsewhere in this decision including the very considerable time that has elapsed and the hardship the cancellations have, and will, cause. Whilst these considerations are addressed in other factors set out, they are also relevant to the consideration here.
Taking the above into account I give this factor some weight in favour of the visa not being cancelled
Are there children whose interests would be affected by the cancellation?
I note in this regard that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].
The applicant has three children, two of whom are now adults. The applicant’s third child is aged [Age]. He is an Australian citizen. He has been diagnosed with [Condition] and is dependant on the applicant and the applicant’s wife. He receives support under the NDIS. He is attending school in Australia.
The continued cancellation would profoundly affect the child. If the applicant’s visa remains cancelled, then the child would face the prospect of their father (and mother) being detained indefinitely, as set out below. I have had regard to the fact that he is young and, due to his diagnosis, is especially in need of care, and having read the medical reports I note that he has attachment issues as regards his mother.
If the applicant’s visa were to remain cancelled, the child would suffer the impact of having his care removed, and I note in this regard that I cannot consider this cancellation in isolation, that the child’s mothers visa has also been cancelled. I find that the best interests of the child clearly weigh here in favour of the visa not being cancelled, so that family unity may be preserved, so that the applicant can continue to care for and support his child and so that the child and his family can remain within the community.
I give this factor significant weight towards the visa not being cancelled.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
In relation to this factor, I have had regard to the decision of the Tribunal (differently constituted) in 1901883.[1] That case helpfully discussed the amendments to the Act of ss. 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen who has an extant protection finding, such as the applicant, unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to him prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to his removal, there being an intervening step.
[1] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)
But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, the corollary of the view expressed above that the applicant would not as a consequence be removed, necessarily demonstrates that cancellation may lead to prolonged detention. I have discussed this in more detail below.
For the same reasons, family unity obligations would not be breached because the applicant would not as a consequence of the cancellation be removed. However, this is also relevant to the discussion below.
On the basis of the discussion above, neither removal in breach of Australia's non-refoulement obligations, nor family unity obligations would be directly engaged by the cancellation. I therefore give this factor no weight in favour of the visa not being cancelled because this factor does not impact on the situation of the applicant if the visa is cancelled or reinstated.
Any mandatory legal consequences
If the visa remains cancelled, the applicant would be barred from making any other visa applications without the Minister lifting the relevant bars. This is a non-compellable power and there is no indication the Minister is inclined to take this action, so I have not considered it further.
The applicant would be unlawful and would be detained (s 189). This is a certain consequence of the visa remaining cancelled, required as it is under the Act.
The question then arises – would the applicant depart to Iran, his country of nationality, and therefore not remain in detention? His evidence is and has consistently been that he would not do so voluntarily. The applicant was clear at the hearing that he would not return to Iran, on the basis that he could not return his family there. I find that the applicant would not, voluntarily, return to Iran.
There is no prospect of the applicant being forcibly returned to Iran. The Iraninan regime, by longstanding policy, has refused to involuntarily return citizens if they arrived prior to 19 March 2018: CLS15 v Federal Circuit Court of Australia [2017] FCA 577.
I accept therefore that the applicant faces the very real prospect of ongoing, indefinite detention if the visa remains cancelled. I have had regard to a large body of research that indicates that prolonged detention has a serious impact on mental health, indicating that those detained suffer high levels of mental health problems, that these are higher than in non-detained asylum seeking populations, and that duration is positively associated with severity of mental health symptoms.[2] Indefinite detention appears from this body of research to have a high likelihood of being associated with the applicant developing severe mental health symptoms over a period of detention which is long term and indefinite in duration. The continued cancellation therefore would lead to long term mandatory detention, which I accept would have a significant, serious impact on the applicant.
[2] Australian Medical Association, Background to AMA Position Statement Health Care of Asylum
I give this factor very significant weight in favour of the visa not being cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The cancellation has seriously impacted the applicant and his family. The applicant and his family have had their ability to work, interact with the community and study curtailed. In the submissions from the family, they all speak of how the cancellations have impacted their ability to live within the community and to enjoy the freedoms of life in Australia.
I have had regard to the fact that the applicant’s family indicated that the cancellation had had an effect on the applicant, although he himself was less able to describe this.
Having regard to the information before me I find that the applicant and his family have experienced hardship in the cancellation of the visa.

100. If the visa remains cancelled, these harms would be compounded, causing what I consider significant hardship to the applicant. Therefore, I give this factor significant weight towards the visa not being cancelled.
Consideration and conclusion
101. I have carefully assessed the applicant’s claims and his circumstances. I have set out above my considerations and explained why I have weighted the factors the way I have. I have had careful regard to the findings of the cancellation delegate.
102. In this case, the likelihood that the applicant would face long term detention and the best interests of his youngest child weigh most strongly against cancellation. When considered with the hardship he and his family would suffer, these weigh strongly against cancellation.
103. The breach here is significant. As noted above, there are potentially profound consequences of applicants being untruthful.
104. However, in this case, the very serious impact that cancellation would have on the applicant, most significantly his indefinite detention and the effect that would be very likely to have on him, and the impact continued cancellation would have on his child overwhelmingly outweigh the reasons to cancel.
Conclusions
105. 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
106. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Sean Baker
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.

Seekers and Refugees – 2011. Revised 2015, von Werthern, M., Robjant, K., Chui, Z. et al. The impact of immigration detention on mental health: a systematic review. BMC Psychiatry 18, 382 (2018).

[2023] AATA 3551

7 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies