2209714 (Migration)

[2023] AATA 3549

2209714 (Migration) [2023] AATA 3549 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Anna Joyce Ryburn (MARN: 5511767)

CASE NUMBER:  2209714

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 12:47pm

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 Faili Kurdish Iranian citizen – discretion to cancel visa – claims maintained in citizenship application – adverse information – citizenship conceded in response to department’s notice but claims on grounds of ethnicity and Christian religion maintained – review heard and determined together with family members’ separate reviews – detailed and credible oral evidence – advised by people smugglers – length of residence, 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), 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

1. 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).

2. The delegate cancelled the visa on the basis that the delegate found that the applicant had given incorrect answers in her 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.

3. The applicant appeared before the Tribunal on 20 July 2023 by videolink to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, two eldest 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.

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

   Background

5. The applicant, now [Age], was born in Illam, Iran. She came to Australia with her spouse, their two eldest sons, her niece and nephew, arriving at Christmas Island [in] November 2011. The applicant and her immediate family lodged an application for a Protection (subclass 866) visa on 11 July 2012. This visa was granted on 12 July 2012, based primarily on claims that she was a stateless Faili Kurd.

6. The applicant made an application for Australian citizenship with her eldest son on 21 June 2016. This was refused on 21 June 2019. The applicant was granted a Resident Return Visa (subclass 155) on 24 July 2018, which was cancelled on 2 July 2022, the subject of this review.

7. The Tribunal notes there are five related cancellation cases, constituted, heard and determined by me around the same time: that of the applicant’s spouse, two eldest sons, her niece, and nephew.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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

11. As a preliminary matter the Tribunal notes that 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 by issuing a certificate under s375A of the Act, dated 22 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’ where the provider of information has not consented to the disclosure of the information to the review applicant.

12. The certificate then lists 10 documents/information, without particularising if all of the above applies to all or some of them.

13. 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.

14. 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 no utility in doing so.

    Was there non-compliance as described in the s 107 notice?

15. 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.

16. On 23 February 2022, the applicant was sent a copy of the s 107 Notice of Intention to Consider Cancellation (NOICC) which advised the applicant that her visa may be cancelled under s109 because of concerns that she did not comply with section s101(b) of the Act. She was advised to respond in writing.

17. The non-compliance identified and particularised in the NOICC was that the applicant had provided incorrect information in relation to her protection visa application by claiming she was a stateless Faili Kurd, where information before the delegate led them to conclude she was an Iranian citizen at the time of the protection visa application.

18. On the applicant’s protection visa application, she indicated she had a number of siblings. Several of her siblings’ children resided in Australia and had provided Iranian identity documents to Australian government agencies, potentially indicating that those persons were Iranian citizens. The Department inferred that these persons were Iranian by descent, that the applicant’s siblings were therefore Iranian and that the applicant therefore was Iranian.

19. On 21 June 2016, the applicant lodged an application for Conferral of Australian citizenship. The applicant declared again in this application that she was stateless. On 5 April 2019, she was invited to comment on adverse information before the Department, in respect of her application. The applicant provided the Department with a copy of her Iranian Shenasnameh. The country information before the Department indicated that this type of identification certificate is only issued to Iranian citizens and included the details of her parents and their Shenasnameh numbers. This confirmed that the parents were also Iranian citizens.

    Response to the NOICC

20. On 31 March 2022, the applicant’s representative provided the following documents in response to the NOICC:

    ·     Applicant’s statutory declaration dated 31 March 2022;

    ·     A copy of the applicant’s NSW Driver’s Licence;

    ·     Applicant’s Notice of Assessment for the tax period ending 30 June 2021;

    ·     Copy of Applicant’s Medical Report dated 01 March 2022;

    ·     Copy of her youngest son’s Medical Report dated 16 May 2018;

    ·     Copy of her youngest son’s Birth Certificate;

    ·     Copy of her youngest son’s Australian Citizenship Certificate;

    ·     Copy of her youngest son’s School Report;

    ·     Copy of her second son’s Higher School Certificate and Student Identification;

    ·     Copy of her sister’s Certificate of Baptism dated 10 April 2016;

    ·     Her second son’s statement dated 31 March 2022;

    ·     Her second son’s statement dated 15 March 2022;

21. On 15 April 2022, the applicant’s representative provided additional submissions:

    ·     Copy of the applicant’s husband’s Birth Certificate;

    ·     Copy of the applicant’s Birth Certificate;

    ·     Copy of the applicant’s national ID card;

    ·     Copy of her eldest son’s Birth Certificates;

    ·     Copy of the applicant’s Marriage Certificate;

    ·     Copy of her husband’s NSW Driver’s Licence;

    ·     Representative’s written submissions dated 15 April 2022.

22. On 22 April 2022, further submissions were provided:

    ·     Representative’s written submissions dated 21 April 2022;

    ·     Copy of applicant’s translated Birth Certificate;

    ·     Translated copy of the applicant’s National ID Card;

    ·     Copy of the applicant’s NSW Driver’s Licence;

    ·     Her youngest son’s Speech Pathology Progress Report dated 15 April 2022.

23. In the applicant’s written statement dated 31 March 2022, the applicant agreed to providing incorrect information about her citizenship. The applicant confirmed she is an Iranian citizen of Faili Kurd ethnicity since birth. However, she stated that her claims regarding her Christian faith are true. The applicant stated she was remorseful for providing false information to the Australian government.

24. On 2 July 2022, the delegate decided to cancel the applicant’s Resident Return (subclass 155) visa granted on 24 July 2018. In the decision record, the delegate noted the matters set out in the NOICC and concluded that the applicant did not comply with s101(b) of the Act by providing incorrect answers to questions 1, 4, 6, 8, 9, 13, 14, 15, 20, 22, 23, 24, 42, 43, 44, 45, 46, 47 and 48 on Part C of the applicant’s Protection (subclass) 866 application, and part of her submissions in her statement of claims.

25. The applicant provided documentation to the Tribunal, set out and discussed below.

26. At the hearing the applicant conceded that she, her husband, elder sons and wider family are Iranian citizens and not stateless. She maintains that they faced discrimination and harm as Faili Kurds in Iran.

27. On the information before me I find that the applicant provided incorrect information in her protection application in relation to her citizenship and that of her immediate and wider family.

28. 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 her and her family’s nationality and statelessness.

    Should the visa be cancelled?

29. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

30. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.

31. In her response to the NOICC, the applicant stated that her visa should not be cancelled for the following reasons:

    ·     The applicant and her family have lived in Australia for over ten years and consider themselves a part of the Australian community;

    ·     Her two eldest children have spent their adolescence in Australia;

    ·     Her first son was studying [a Subject] course at TAFE NSW and has lived his life in Australia for a significant period of his adolescence. Her second son has spent more than half of his life in Australia, speaks more English than Persian and has finished High School;

    ·     Her youngest son was diagnosed with [Condition] which requires substantial support. He is still in Primary School and requires one on one support from School Learning Support Officers. If they were to return to Iran, there would be no government financial assistance and he would be separated from children of the same as him;

    ·     Her youngest son only speaks English. He is too young to live in Australia on his own. The applicant does not believe he can live in Iran because of the very severe prejudice and discrimination against children with disabilities;

    ·     The cancellation of the visa would cause significant family hardship;

    ·     Her two eldest children would be conscripted into compulsory military service if returned to Iran;

    ·     The applicant has lived religiously free for over ten years, and would be killed if she expressed her faith as a Christian in Iran;

    ·     She would not be able to live a normal life in Iran due to her medical conditions;

    ·     The applicant strongly believes that her family would be harmed because of their religious beliefs; and

    ·     She would not be able to obtain support from her family members in Iran due to her beliefs.

    Delegate’s decision

32. In coming to the assessment, the delegate took into account the applicant’s response and following circumstances:

    ·     The applicant had consistently provided incorrect information in her entry interview, submission of claims and Protection Obligations interview, which demonstrated her intention to deceive the Department;

    ·     Considered the statement of her spouse who stated in his statutory declaration dated 15 March 2022, that they were advised by people smugglers to claim that they were stateless and did so, out of fear of being held in a detention centre for many years;

    ·     the fact that the applicant had sufficient time to provide the correct information to the department, prior to the grant of her Protection visa in 2012;

    ·     Had the correct information been known by the delegate at the time of her Protection visa application, their assessment of her claims may have been somewhat different;

    ·     The applicant is residing in Sydney with her immediate family, as a permanent resident of Australia;

    ·     No evidence of the applicant being employed;

    ·     Applicant receiving treatment for a range of medical conditions and if the decision is made to cancel the visa, the applicant may experience a recurrence of such conditions;

    ·     The cancellation may cause financial hardship as it would impact her ability to undertake any work or access social welfare entitlements in Australia;

    ·     The applicant’s third child and is an Australian citizen who has been diagnosed with [Condition]. The applicant’s spouse is the primary care-giver;

    ·     The applicant’s third child would, by virtue of his father being a citizen of Iran, also be eligible for Iranian citizenship;

    ·     There would be some hardship associate with the split of the family unit;

    ·     The applicant has resided in Australia for at least ten years and would have established some social and economic ties to Australia;

    ·     The applicant acknowledging the non-compliance;

    ·     The applicant providing the same incorrect information in her application for Citizenship on 21 June 2016;

    ·     The applicant has accessed benefits under Centrelink for financial support as well as a grant in excess of $55,000 under the National Disability Insurance Scheme, on behalf of her son;

    ·     The applicant’s claims to be Christian and fear of harm if she were to return to Iran;

    ·     The difficulty of her youngest child in assimilating into Iran society because of his disability and English-speaking background;

    ·     The impact of the cancellation on the separation of the family unit;

    ·     The youngest son’s Australian citizenship would not preclude him from being eligible to live in Iran, should either of his parent’s visas be cancelled;

    ·     Acknowledging Australia’s obligations under CROC;

    ·     The applicant would not be able to apply for another visa while in Australia, including a Protection visa;

    ·     The applicant may be affected by Public Interest Criterion 4013;

    ·     If the visa is cancelled, the applicant would become an unlawful non-citizen and would be liable for immigration detention and removal.

    ·     The delegate recorded 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.

33. At the hearing I spoke with the applicant, her husband, their two eldest children and the applicant’s nephew. They provided detailed specific evidence to questions and I found their evidence to be credible.

34. The applicant told me that she had found life without a visa hard, she had health issues and was taking medication and found seeing her husband and two sons without visas had had an effect upon her health.

35. She spoke in detail about her youngest son, she said that she was happy he was in Australia because in Iran they had friends whose children had [Condition] and they could not speak. Her son had some verbal abilities. She said that in Iran there is no support for children with [Condition] or their families.

36. I asked the applicant about her faith. She said that when she was in Iran, she did not want to be called a Muslim, she had attended a Church when they were in detention and had wanted to convert but had not had the chance now that she was unwell. She said that at the moment she just believed in God.

37. I asked her if she would return to Iran if the visa remained cancelled. She said that she would not, she had only returned to Iran once and that was because her parents were old and sick, she did not want to return to Iran, it was a hard life and that had been why they had fled.

38. She reiterated that they were very regretful that they had told a lie.

39. I spoke with the applicant’s family members. They were able to explain the effect that the cancellations had had on them and on the applicant. Where relevant these are discussed further below.

    the correct information

40. The correct information is that the applicant and her family are Iranian citizens, and are not stateless. The applicant was born in Iran as a citizen and holds Iranian documentation. The applicant provided this information to the Department. She conceded that she had provided incorrect information in her protection application and that she 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.

1. I give this consideration significant weight in favour of cancelling the visa.

   the content of the genuine document (if any)

2. 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

3. I accept the information set out in the delegate’s decision that the decision to grant the applicant her 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.

4. Whilst there is some suggestion that the visa may have been granted if the applicant had been truthful and claimed to be a documented Kurd subjected to discrimination and harm on this basis, it is not possible to determine whether this would have been the case.

5. I give this consideration significant weight in favour of cancelling the visa.

   the circumstances in which the non-compliance occurred

6. As above, the applicant has claimed that the family were 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 she and her family would be detained and not released if they arrived in Australia and were truthful about their nationality.

7. I appreciate that this would have been a very difficult time for the applicant. I appreciate that the applicant may have believed she had no or little choice but to provide the incorrect information.

8. 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 she did not meet this standard.

9. Therefore, despite the understandable reasons why she and her family 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

10. The applicant suffers mental health symptoms associated with severe depression with psychosis and former post partum depression. She is also the primary carer (with her husband) for her 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.

11. The applicant lives in the family home and has the financial and emotional support of their family.

12. The applicant expressed anxiety and concern about the effect the cancellation had had and would have on the family, primarily their three children.

13. I accept that the cancellation has had a health impact on the applicant as she has claimed and 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

14. As is noted by the delegate, the applicant, once confronted with the concerns about her protection application, conceded the incorrect information and engaged with the Department.

15. 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

16. The delegate’s decision notes that the applicant continued to claim to be stateless and not have citizenship of any country in her application for Australian citizenship conferral as well as her application for the Resident Return visa. 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

17. As noted by the delegate, the non-compliance occurred over ten years ago. In this time the applicant, and in particular her 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.

18. 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.

19. 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.

20. 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 her 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 her 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 her state of mind, her motivations, and any supporting documents she may have then had.

21. 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

22. 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.

23. I give this consideration a little weight towards the visa not being cancelled.

    any contribution made by the holder to the community.

24. The applicant has not directly responded to this factor, but I have inferred from her responses and those of her immediate family members that the applicant and her 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

25. 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

26. The delegate notes that the applicant’s Resident Return visa did not have any secondary applicants associated with it. 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.

27. I therefore give this factor no weight either for or against cancellation.

    Are there children whose interests would be affected by the cancellation?

28. 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].

29. 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 her husband. He receives support under the NDIS. He is attending school in Australia.

30. The continued cancellation would profoundly affect the child. If the applicant’s visa remains cancelled, then the child would face the prospect of his mother and primary carer (and his father) 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 strong attachment with the applicant.

31. If the applicant’s visa were to remain cancelled, the child would suffer the impact of having his primary care removed, or, as below, the prospect of him entering indefinite detention with his parents, and I note in this regard that I cannot consider this cancellation in isolation, that the child’s father’s 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 her child and so that the child and his family can remain within the community.

32. 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.

33. 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 her 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 her removal, there being an intervening step.

    [1] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

34. 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.

35. 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.

36. 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

37. 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.

38. 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.

39. The question then arises – would the applicant depart to Iran, her country of nationality, and therefore not remain in detention? Her evidence is and has consistently been that she would not do so voluntarily. The applicant was clear at the hearing that she could not return to Iran because she did not want to take her youngest child, in particular, there. I find that the applicant would not, voluntarily, return to Iran.

40. 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.

41. 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 suffering further damage to her mental health and/or developing further 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

42. 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).

43. The cancellation has seriously impacted the applicant and her family. The applicant and her 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.

44. I have had regard to the claim of the applicant that the cancellations of her visa and that of her family members had had a negative impact on her health, and I accept this.

45. Having regard to the information before me I find that the applicant and her family have experienced hardship in the cancellation of the visa.

46. 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

47. I have carefully assessed the applicant’s claims and 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.

48. In this case, the likelihood that the applicant would face long term detention and the best interests of her youngest child weigh most strongly against cancellation. When considered with the hardship she and her family would suffer, these weigh strongly against cancellation.

49. The breach here is significant. As noted above, there are potentially profound consequences of applicants being untruthful.

50. However, in this case, the very serious impact that cancellation would have on the applicant, most significantly her indefinite detention, the effect that would be very likely to have on her mental health, and the impact continued cancellation would have on her child overwhelmingly outweigh the reasons to cancel.

    Conclusions

51. :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

52. 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).