2209688 (Migration)

2209688 (Migration) [2023] AATA 3552 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Anna Joyce Ryburn (MARN: 5511767)
CASE NUMBER:  2209688
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 12:51pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect answers provided by father in protection visa application as dependent minor – not stateless Faili Kurd but Faili Kurdish Iranian citizen – discretion to cancel visa – reliance on parents and knowledge at the time – information repeated in current visa application when older but still minor, and in citizenship application – adverse information – citizenship conceded in response to department’s notice – review heard and determined together with family members’ separate reviews – detailed and credible oral evidence – advised by people smugglers – length of residence, education, work, relationship, limited Farsi and liability for military service – mother’s mental health, and Australian citizen youngest sibling’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 98, 99, 100, 101(b), 107, 109(1), 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 or had been provided on his behalf, 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.
Background
The applicant, now [Age], was born in Iran. He came to Australia with his father, mother, brother and cousin, arriving at Christmas Island [in] November 2011. The applicant’s father applied for a Protection visa on the applicant’s behalf, in which the applicant was listed as a dependent applicant on 11 July 2012. The visa was granted on 12 July 2012 based primarily on claims that the family were stateless.
The applicant made an application for Australian citizenship on 21 June 2016, in a combined application with his mother. Their citizenship applications were refused on 21 June 2019. The applicant was granted a Resident Return (subclass 155) visa on 23 July 2018, which was cancelled on 2 July 2022, the subject of this review.
The Tribunal notes there are five related cancellation cases, constituted and determined by me around the same time: that of the applicant’s mother, father, brother and two cousins.
Non-Disclosure Certificate
As a preliminary matter the Tribunal notes it has before it the applicant’s Departmental file relating to the cancellation of her protection visa.
The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department issuing a certificate under s375A of the Act, dated 16 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:
·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;
·where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant.
The certificate then lists 3 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
On 9 April 2022, the applicant was sent a copy of the s 107 Notice of Intention to Consider Cancellation (NOICC) which advised the applicant that his visa may be cancelled under section 109 because of concerns that he did not comply with section 101(b) of the Act. He was advised to respond in writing.
The non-compliance identified and particularised in the NOICC was that the applicant’s father had provided incorrect information in relation to his protection visa application by claiming he, the applicant, and their family, were stateless Faili Kurds. Subsequent information before the delegate then led them to conclude that the applicant’s mother and family were Iranian citizens at the time of the protection visa application.
In more detail, this included information about the applicant’s mother’s familial links. 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 mother and the applicant made a combined application for conferral of Australian citizenship. During this process, the applicant’s mother 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.
The delegate acknowledged that while this did not prove the applicant’s citizenship status, it contradicted information contained in his Protection visa application, where his mother was declared as stateless.
The NOICC raised the applicant’s father’s travel, noting that he had departed Australia four times since the grant of his protection visa and on each occasion of the applicant’s father’s travel, he declared his destination of travel and the country in which he spent the majority of his time was Iran. The notice also noted that on 30 October 2018, the applicant’s father was questioned by Australian border force officials at Sydney Kingsford Smith Airport, upon his return to Australia. Department records indicated that he advised offices he had travelled to Iran with the applicant’s mother and sibling. The applicant’s father also stated that the applicant and his sibling are Iranian nationals and did not return to Iran because they would be conscripted into the military. The Australian border officials located a number of travel documents in the applicant’s father’s possession when he was interviewed on 30 October 2018, and some of these travel documents did not contain visas for Iran. The delegate considered it was likely that the applicant’s father used another travel document, such as an Iranian passport, to enter Iran on the occasions he departed and entered Australia.
Finally, the notice set out that on 15 February 2022, the applicant’s father was issued a NOICC under the grounds of having provided incorrect information in his visa application and in response to this notice, the applicant’s father submitted a statutory declaration dated 15 March 2022, declaring he was not born in Iraq and was not stateless, as he initially claimed upon arrival to Australia. Rather, the applicant’s father declared, he was born in Iran, is a citizen of Iran, and his wife and two children were also born in Iran, indicating that they are all Iranian citizens.
On 15 April 2022, the applicant’s representative at the time of visa application responded to the NOICC, and included the following documentation:
·A translated copy of the applicant’s father’s Birth Certificate;
·A translated copy of the applicant’s father’s National ID Card;
·A translated copy of the applicant’s mother’s Birth Certificate;
·A translated copy of the applicant’s mother’s National ID Card;
·A translated copy of the applicant’s sibling’s Birth Certificate;
·A translated copy of the applicant’s Birth Certificate;
·A translated copy of the applicant’s parent’s Marriage Certificate;
·A copy of the applicant’s father’s NSW Driver’s Licence;
·Representative’s written submissions for the applicant’s father dated 15 April 2022.
On 27 April 2022, further submissions were submitted by the applicant’s representative:
·Representative’s written submissions for the applicant dated 26 April 2022;
·Applicant’s Notice of Assessment for the tax period ending 30 June 2021;
·Applicant’s payslips dated 15 November 2021;
·Applicant’s employment agreement dated 17 March 2022;
·Applicant’s tax return for the year 30 June 2021;
·A copy of the applicant’s NSW Driver’s Licence;
·Applicant’s statement dated 15 March 2022;
·Applicant’s further statement dated 31 March 2022.
On 3 May 2022, the applicant was invited to comment on additional information which was relevant to his Resident Return (subclass 155) visa cancellation. On 21 July 2018, when the applicant lodged his application for a Resident Return visa, he provided that he did not have a national identity card, nor was a citizen of any country and is stateless. The delegate considered that this information is relevant because it is a further instance of non-compliance, in addition to the alleged non-compliance relating to his Protection visa application. The applicant was advised to respond in writing.
On 10 May 2022, the applicant accepted he provided some incorrect information in his Resident Return visa application form. He stated he did not have an Iranian National Identity Card because this is issued by the government when the person turns eighteen years old. The applicant claimed that because of this, he provided the correct answer to the question ‘Does this applicant have a national identity card’ on his application form.
Further, the applicant stated he answered ‘no’ to the question ‘Does this applicant have other identity documents’, since he did not have an Iranian ID card. He was not sure what type of documentation was required. The applicant answered “’no’ to the question, is this applicant a citizen of any country? Is this applicant stateless’ because he was not aware that he was an Iranian citizen at the time of this visa application. He only found out this information after his family’s visas were in trouble. He also stated that he was not aware if he would still be listed as an Iranian citizen and if they would even have knowledge of his existence.
The applicant apologised for providing the incorrect information on his application form. However, he claimed to have been honest when answering the questions at the time, as it was the truth that he knew. The applicant felt shameful and guilty for providing any misleading information. He claimed that this was not his intention.
The applicant further explained that he had also worked hard for his life in Australia, and that while he unknowingly made the same mistakes as his parents, he cannot change or fix the past. This made the applicant sad and frustrated that his present and future would be taken away because he could not choose his free will. The applicant earnestly requested the Department’s forgiveness and stated he wanted to continue pursuing a better life in Australia.
On 02 July 2022, the delegate decided to cancel the applicant’s subclass 155 visa. In the decision record, the delegate noted the matters set out in the s107 notice and concluded that the applicant did not comply with s101(b) of the Act by providing incorrect answers to questions 20, 24, 42, 43, 45, 46 of his combined Protection visa application Part C form, information provided by his father on a Form 80 in support his Protection application, questions 1, 6, 8, 9, 10, 18, 19, 20, of Part D of his Protection visa application form and questions answered on his Resident Return (subclass 155) visa application.
The applicant provided documentation to the Tribunal, set out and discussed below.
At the hearing the applicant conceded that he and his family are Iranian citizens and not stateless.
The applicant’s representative raised a concern that the applicant, as a minor at the time the protection visa application was lodged, could not have been said to have lodged the protection application.
However, by application of ss 98 and 99, I find that the applicant has had the protection application made on his behalf. Similarly, whether he knew the answers to be wrong or not is not material because s 100 provides that a person need not know an answer is incorrect.
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 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 the applicant’s written statement dated 15 March 2022, the applicant stated that he did not understand the complexity of the situation. His parents were constantly struggling in Indonesia, and he was not even [Age] years old when they left Iran. The applicant claimed that Australia is the only country he now knows. He stated he has been in Australia for the most important parts of his life and is more fluent in English than in Persian. The applicant had been working at [a] company for a year and a half and has ambitions of gaining employment in [an Employer].
Further, the applicant reiterated that he considers himself to be an Australian, as he has been in this country for over a decade. He has also made many connections and friends in Australia. In addition, he stated that Iran was not a pleasant country to live and was unable to sleep at night knowing that they may have to return to Iran. When the applicant hears of Iran, it is always regarding war and conflict. He claimed it is not fair for them to go somewhere that they no longer belong, know and feel safe.
The applicant wished to become an Australian citizen and contribute to Australia as much as he can, because he will not forget that Australia took him and his family in when they needed it most.
In his later statement dated 31 March 2022, the applicant stated that he has been offered employment at a [company]. This job had the potential to set him up for the future and provided a perfect opportunity to grow both in a professional and personal capacity. However, he worried day and night because of the NOICC. He claimed that if his visa is cancelled, he will be unable to pursue this career opportunity and his dreams would be crushed.
The applicant discussed his feelings of defeat and explained that he had no say or do in anything that happened as he was only [Age] years old at the time. He stated it felt cruel to be paying for this, a decade later. The applicant pleaded the department to forgive his parent’s mistake. He stated that it was wrong for his parents to use Australia’s refugee system for the benefit of their family, but they did it because of their love for their children as they wanted to pass on a better future.
The delegate in reaching their assessment took into account that there were mitigating circumstances relating to the initial non-compliance, however, the applicant provided the same incorrect information relating to his citizenship status in his Resident Return visa application, that the applicant has completed secondary schooling, is gainfully employed, developed some social ties, and had numerous extended family members in Australia, that the applicant responded to the NOICC in a timely manner and had sought forgiveness for his parent’s mistakes, that it had been over ten years since the non-compliance. That there were no breaches of criminal or other administrative law known, that the applicant was employed at the time of the decision and was therefore paying tax and contributing to the Australian community, that the applicant has a younger Australian citizen sibling and is a non-practicing Muslim, that the applicant will be unable to apply for another visa in Australia, including protection, that the applicant would become an unlawful non-citizen and would be liable for immigration detention and removal if he did not voluntarily depart Australia. The delegate concluded that, having weighed all the relevant factors, they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

At the hearing the applicant told me that he was working at the moment at [Company] as [an Occupation]. He said he wanted to start his own business. He confirmed when asked that he had been [Age] years old when the family had arrived in Australia. he said that he was in a relationship that had been ongoing for two years and ten days.
I asked the applicant if he had any memories of his two-month detention when he was [Age] when the family had first arrived. He had no clear recollections. He said he would not and could not return to Iran, he did not have good memories of Iran. He said he had been contributing economically to Australia and had been a good resident here.
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 and holds Iranian documentation. The applicant conceded this and 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 as well as his resident return visa application. However, he has also noted that at the time of the protection visa application he was [Age 1] years old. I noted he was also [Age 2], still a child, when he made the resident return visa application.
I appreciate that under the provisions the applicant is taken to have provided the incorrect information in the protection visa. I appreciate that this is the case regardless of whether he knew it to be true. I appreciate the correctness of the statement in the delegate’s decision that in this case the incorrect information still constitutes non-compliance. However, it is not immaterial that the applicant did not have capacity as a child to provide information himself. Nor is it immaterial that he was still a child when the incorrect answers were given in the Resident Return Visa application. This is more fully discussed below.
Taking this reasoning into account I must give this consideration some 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.
I give this consideration significant weight in favour of cancelling the visa.
the circumstances in which the non-compliance occurred
The delegate acknowledges that at the time of the non-compliance, the applicant was a minor. I appreciate, as above, that the applicant is still deemed to have failed to comply with the requirements in s 101 despite his lack of capacity as a child and his claim that he was not aware of his Iranian citizenship. Even at the time of the RRV application, if he had as the delegate posits, developed some awareness of his Iranian nationality, he was still a child and cannot be held to the same standards as an adult.
In such circumstances as here, the applicant had no control in any meaningful sense over the answers provided in the protection application made when he was [Age 1]. He had greater control over the RRV made when he was [Age 2], but his responses must be seen in the context of the answers previously given by his parents in the protection application. It is asking too much, I think, for a [Age 2]-year-old to go against statements made by his parents in a situation such as here.
Taking into account the circumstances of the applicant when the non-compliance occurred, I find that this consideration must be given significant weight in favour of not cancelling the visa.
the present circumstances of the visa holder
The applicant presents as a young man with promise. He has completed his schooling and is now working for a [company]. He has a longstanding relationship. The applicant has spent a greater proportion of his life in Australia rather than Iran. He expressed concerns about his ability to return to Iran including lack of Farsi language ability, a concern about being conscripted, and he expressed support for the protests by youth against the Iranian regime. He expressed anxiety and concern that his life in Australia was contingent on mistakes made in the past which he had had little ability to influence. He expressed his wish to be recognised as a part of the Australian community, as he saw himself and his family to be.
The information before me demonstrates that the applicant is doing very well for himself despite the adversity of his position. He expressed a strong sense of how he wishes to live his life in the Australian community in a productive and meaningful manner. If the visa were to remain cancelled it would significantly impact on this young man’s life.
I give this consideration significant 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
The delegate notes that the applicant has met his obligations under Subdivision C. I therefore 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 makes much of the fact that the applicant provided the incorrect information in his RRV when he was [Age]. As above, this is still an age legally considered a child, with diminished capacity. I do not accept the reasoning of the delegate that this can be considered another form of non-compliance in the same manner that such actions from an adult can be. There is no other instance of non-compliance indicated. I find that I can give this consideration no weight towards the visa being cancelled given the applicant was a child at all material times.
the time that has elapsed since the non-compliance
As noted by the delegate, the non-compliance occurred over ten years ago. As also noted these have been the applicant’s formative years of life, the completion of his schooling, attaining adulthood and working. The applicant has established significant ties in Australia. The family gave evidence at the hearing that they consider themselves Australian, and have made lives for themselves here.
The delegate notes that this may not have occurred if the correct information had been given in the protection application. This may be the case but we must deal with the situation as it is now, and the time that has elapsed.
The very considerable time that has elapsed since the non-compliance argues against the cancellation of the visa. It seems to me 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 (or his parents) 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 has contributed to the Australian community as a member of that community during his childhood and early adulthood. I give this consideration a little weigh 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, as a holder of an RRV, has not secondary applicants, nor has he sponsored anyone to Australia. There were no consequential cancellations as a result of the cancellation of the applicant’s visa. As noted above, the applicant’s immediate and other family have had their visas cancelled, but this was not on the basis of a s 140 cancelation in relation to the applicant’s visa.
I therefore give this factor no weight either for or against cancellation.
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 a younger brother, [Age] years old, who is an Australian citizen. I accept that the continuing cancellation of the applicant’s visa would have an effect upon his younger brother. I also cannot consider this cancellation in isolation, the applicant’s parents and older brother have also had their visas cancelled and if the visas remained cancelled then the applicant’s younger brother would have his entire immediate family placed in detention. I find therefore that the continued cancellation would profoundly affect the child.
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, 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, place he appears to have no attachment to, and a government that he does not support. I find that the applicant would not, voluntarily, return to Iran.
There is no prospect of the applicant being forcibly returned to Iran. The Iranian 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.
Having regard to the information before me I find that the applicant and his family have experienced hardship in the cancellation of the visa.
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
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.
In this case, the likelihood that the applicant would face long term detention, and the circumstances of the non-compliance weigh most strongly against cancellation. When considered with the hardship he and his family would suffer, these weigh strongly against cancellation.
Whilst the breach here is significant, I have considered above and concluded that the applicant cannot be considered to be as responsible for this as an adult.
Taking into account all of the considerations above, the reasons not to cancel overwhelmingly outweigh the reasons to cancel.
Conclusions
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 (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 3552

7 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies