2215442 (Refugee)

2215442 (Refugee) [2023] AATA 2333 (18 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Neha Vaidyanathan
CASE NUMBER:  2215442
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE:18 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 April 2023 at 2:14pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – race – Kurdish Faili stateless persons – incorrect information in application – undocumented stateless status and identity – applicant is not stateless and is a citizen of Iran – two Australian citizen children – significant negative effect on the best interests of these children – decision under review set aside

PRACTICE AND PROCEDURE – s438 certificate
LEGISLATION
Migration Act 1958, ss 46A, 101, 103, 107, 109, 189, 198, 438
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information and answers to her application for a protection visa and therefore did not comply with s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Upon the written request of the applicant and her husband who was the applicant in Case Number 2215439 her matter was set down for a joint hearing before the Brisbane Registry of the Tribunal on 4 April 2023 together with her husband’s application ([Mr A] Case Number 2215439).
On 3 April 2023 the Tribunal advised the applicant and her husband that the Tribunal had considered all the material before it relating to their applications and that it was now able to make a favourable decision on that information alone. The Tribunal informed the applicant and her husband that they were no longer invited to give oral evidence and present arguments at a hearing.
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.
Certificate issued under the provisions of s 438 of the Act
On 22 March 2023 the Tribunal forwarded correspondence to the applicant advising them of a ‘Notification Regarding the Disclosure of Certain Information under s 438 of the Migration Act 1958’ (Certificate) dated 10 February 2023 which had been provided to the Tribunal by a delegate of the Secretary of the Department of Home Affairs (the Department). In this correspondence the Tribunal invited the applicant to comment on the validity of the Certificate.
Under s 438 of the Act, the Secretary of the Department may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certificate is that the Tribunal is prohibited from disclosing the document and/or the information in it to the applicant. The Certificate identified that the information referred to in the Certificate should not be disclosed to the applicant or the applicant’s representative because the information was provided ‘in confidence’.
On 23 March 2023 the applicant’s representative responded to the Tribunal’s invitation to comment on the Certificate stating that:
…we submit that in the interests of procedural fairness to the review applicant, a summary of the information and the date of that information that is contained in folio [number] should be disclosed to the review applicant.
We submit that disclosure can be done in a way that does not affect the duty of confidence upon the Department, given that the name of the discloser and other identifying details can be redacted from the document…
The Tribunal having given regard to the issue of ‘in confidence’ as to the contents of the document to which the Certificate issued under s 438 of the Act relates to has determined not to provide the certified document to the applicant. However, the Tribunal in correspondence on 30 March 2023 provided the following information (in broad terms as to the information contained within the relevant document) stating that:
[details deleted]
Background (as relevant) of visa holder
On [date] December 2010 the applicant arrived without a visa at Christmas Island (an excised place) claiming to be [Ms B] born [Date 1].
In an interview with the Department (Entry Interview) on 30 December 2010 the applicant stated that her mother was Iranian but that her father was stateless as he was Kurdish and had been deported from Iraq to Iran prior to the applicant’s birth. She further claimed that her father had been given a ‘green card’ and later issued with a ‘white card’. The applicant stated that this was the reason she had not been issued with a birth certificate. She claimed to be stateless and had no identity papers. The applicant arrived with her husband who claimed to be [Mr C] and that he was also stateless. The applicant stated that she had departed Iran on a false passport in the name of ‘[Ms D]’. The applicant and her husband were placed into immigration detention.
On 11 May 2011 the applicant provided a written statement in support of her Protection Obligations Determination (POD) which was assessed together with her husband’s claims as part of the same Protection Obligations Evaluation (POE) process. Their claims as outlined in this statement for protection were (in summary) that they believed they would not be afforded due recognition by Iranian authorities and that they would not receive any protection by the Iranian government because of their ethnicity as Kurdish Faili stateless persons. Further that they had no access to state education, and they had been privately schooled and had not been afforded any documentation to verify the completion of their studies. They stated that they had no right to attend university and no entitlement to lawful employment in Iran or the right to own land or operate a business and as such they would be unable to earn an income by any legal means in Iran. The applicant stated that she had been employed casually and illegally as a [occupation] owing to her statelessness and ethnicity. She further stated that she and her husband were not eligible for social security, nor any other allowances issued by the Iranian government including public health care.
The applicant claimed that she and her husband had a green and then white card which were worthless and did not afford them the rights available to Iranian citizens. Further that having the cards had caused problems for them when they were stopped by the Basij owing to their ethnicity and statelessness.
The applicant claimed that she and her husband could face harassment, extortion, intimidation and abuse by members of the Basij and that they could be subjected to arbitrary arrest, detention and serious mistreatment.
On 10 June 2011 the POE delegate found that the applicant and her husband were to be recognised as persons to whom Australia had protection obligations as set out in Article 1A of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol).
Protection visa application
On 6 July 2011 the applicant lodged an application for a protection visa providing a signed Form 866 – Application for protection (Class XA) visa. As part of that application the applicant referred to her statement provided during the POD process which outlined the applicant’s and her husband’s claims for protection.
Subsequent information received by the Department
On 29 October 2013 the applicant requested her name be changed from [Ms B] to [Ms E]. The applicant provided a certified copy of a Queensland Change of Name Certificate (registration number [deleted]) which recorded her name as [Ms E]. The delegate subsequently approved the applicant’s request to correct her personal information (change of name).
The Department received information that indicated that [details deleted].
On 28 July 2015 the applicant lodged an application for Australian Citizenship by conferral. In her application, the applicant declared her citizenship as ‘stateless’ and that she has never held any identity documents.
On 20 December 2019 the Citizenship delegate invited the applicant’s husband to comment on adverse information due to conflicting information he had provided to the Department regarding his stateless status.
On 14 January 2020 the applicant’s then representative responded on behalf of the applicant’s husband and provided the Iranian identity documents of the applicant and her husband.
On 14 May 2020, the Citizenship delegate invited the applicant to comment on adverse information, which included information pertaining to her Iranian documents, the applicant’s birth record (shenasnameh), applicant’s identity card and marriage certificate.
In response to the invitation the applicant’s the representative replied in a submission dated 11 February 2020 in which they provided the applicant’s original and translated identity documents in the name of [Ms E] (DOB [Date 2]).
On 27 May 2020 the applicant responded to the invitation to comment dated 14 May 2020. In her response the applicant provided a Statutory Declaration dated 26 May 2020 in which she acknowledged that she and her husband were Iranian citizens and that she had provided incorrect information to the department about her undocumented stateless status and identity.
On 28 August 2020 the applicant requested her date of birth be changed from [Date 1] to [Date 2] and that her citizenship status be amended from ‘stateless’ to ‘Iranian citizen’. In support of this request the applicant again provided her birth certificate and a Statutory Declaration dated 26 May 2020 in which she acknowledged that she had provided incorrect information to the Department in her protection visa application.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act which provides that:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) All questions on it are answered; and
(b) No incorrect answers are given or provided.
The s 107 notice alleged that the applicant had provided the following incorrect information in her protection visa application:
Non-compliance with s 101(b) of the Act
·At question 1 the form asked, “What is your full name?” The applicant answered “[Ms B]”.
This answer was incorrect as since being granted the visa the applicant has provided documentation to the Department and made declarations that her name is [Ms E].
·At question 7 the form asked, “Date of Birth?” The applicant answered “[Date 1]”.
This answer was incorrect, as the applicant’s Date of Birth is [Date 2] and the applicant has admitted providing incorrect information as to her date of Birth and has provided a copy of her birth certificate (shenasnameh).
·At question 19 the form asked, “Your citizenship at birth”. The applicant answered, “Stateless”.
This answer was incorrect as she is a citizen of Iran and has admitted providing incorrect information and has provided a copy of her Iranian birth certificate and marriage certificate as evidence of her Iranian citizenship.
·At question 21 of Part C the application the form asked, “Do you hold any other citizenship or are you a national of any other country? The applicant answered, “No”.
This answer was incorrect because the applicant’s birth certificate (shenasnameh), National ID card and marriage certificate indicated she was an Iranian citizen.
·At question 22 of the application the form asked, “Do you have a right to enter or reside in, whether temporarily or permanently any country(s) of nationality or y9ur former country(s) of habitual residence” The applicant answered, “No”.
This answer was incorrect because the applicant is a citizen of Iran and is not statless as claimed.
·At question 23 of the application the form asked, “If you are stateless, how, when and why did you lose your citizenship”. The applicant answered, “Stateless by birth”.
This answer was incorrect because the applicant is a citizen of Iran and is not stateless as claimed.
·At question 42 of Part C on page 7 of the application the form asked, “Why did you leave that country?”. The applicant in her statement dated 11 May 2011 claimed she was “stateless”
This answer was incorrect because the applicant is not stateless and is a citizen of Iran.
·At question 43 of the application the form asked, “What do you fear may happen to you if you go back to that country?” “The applicant claimed that she feared harassment, extortion, intimidation and abuse by the Basij and that she would be subject to arbitrary arrest, detention and mistreatment due to her stateless status”.
This answer is incorrect as the applicant from the material she has provided to the Department has shown that she is an Iranian citizen with access to the freedoms, services and protection afforded to all Iranian citizens by the Iranian government.
·At question 44 of the application the form asked, “Who do you think may harm/mistreat you if you go back?” The applicant answered, “The applicant claimed that she feared harassment, extortion, intimidation and abuse by the Basij and that she would be subject to arbitrary arrest, detention and mistreatment due to her stateless status”.
This answer is incorrect as the applicant is an Iranian citizen and therefore, she has the right to enter and remain in Iran with access to the freedoms, services and protections afforded to all Iranian citizens by the Iranian government.
·At question 45 of the application the form asked, “Why do you think this will happen to you if you go back?” The applicant answered, “The she was stateless, and on that basis, she was denied basic human rights.”
This answer is incorrect as the applicant is an Iranian citizen, according to the documents she has provided to the Department and would have access to the freedoms, services and protections afforded to all Iranian citizens by the Iranian government. As an Iranian citizen the applicant would not be subject to persecution by the Basij or the Iranian government as she is not a stateless Faili Kurd.
·At question 46 of the application the form asked, “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” The applicant answered, “The applicant claimed she could face harassment, extortion, intimidation and abuse by the Basij or be subject to arbitrary arrest, detention and mistreatment by Iranian authorities due to her stateless status”.
This answer is incorrect as the applicant is a documented citizen of Iran and has the effective protection in Iran by the Iranian authroteis..
The Notice of Intention to Consider Cancellation (NOICC)
The delegate after assessing the information provided by the applicant as outlined above decided that the applicant had provided incorrect information to the answers to the questions in his protection visa application and had not complied with s 101(b) of the Act.
An NOICC of the applicant’s visa under s 109 of the Act was issued to the applicant on 11 April 2022, in which she was afforded an opportunity to comment on the non-compliance and to give written reasons why her visa should not be cancelled.
The applicant’s representative responded to the NOICC by email on 22 April 2022 and provided the following supporting documents:
·A form 956 – Appointment of registered migration agent, legal practitioner or exempt person, signed by the visa holder on 20 April, appointing migration agent, ARC Visa and Migration.
·A written submission dated 21 April 2022.
·Statutory Declaration dated 20 April 2022 under the hand of the visa holder.
·Copy of Queensland Driver’s license, Medicare Card and Health Care Card all in the name of the visa holder.
·Letters dated 19 April 2022, under the hand of [a named doctor] attesting to the visa holder and her husband visiting the clinic and that the visa holder having been treated for [Medical condition 1] and her two children having been diagnosed with [Medical condition 2]) and one child having been diagnosed with [Medical condition 3] and her husband awaiting [surgery].
·Four letters of support.
·Two Statutory Declarations dated 18 May 2022 under the hand of [name] in support of the visa holder and her husband.
·Letter of support under the hand of [a] Deputy Principal of [a] School, dated 15 May 2022.
·Letter dated 21 May 2020 under the hand of [a named specialist] attesting to the visa holder’s treatment for [Medical condition 1].
·Copy of Queensland birth certificate issued on [date] for [Master F] (DOB [date]), the visa holder’s son.
·Copy of Queensland birth certificate issued on [date] for [Master G] (DOB [date]), the visa holder’s son.
·Letter dated 1 November 2021 from the National Disability Insurance Agency (NDIA) containing NDIS plan for [Master G].
·Letter dated 27 August 2021 from [a clinic] attesting to [Master G]’s treatment for [Medical condition 3] and [Medical condition 2].
·Latter dated 18 November 2022 under the hand of [a named doctor] regarding [Master G]’s diagnosis of [Medical condition 2].
The delegate after considering the response and accompanying material reached a conclusion that the visa holder had not complied with s 101(b) of the Act.
The Tribunal notes that the applicant does not dispute the delegate’s finding that she had not complied with the provisions of s 101 (b) of the Act.
For the reasons above the Tribunal is satisfied that the applicant did not comply with s 101 (b) of the Act in the way outlined in the s 107 Notice.
Review of the Tribunal
The applicant’s representatives (Refugee and Immigration Legal Services, who had been recently appointed) provided a submission of 27 March 2023 in relation to the applicant and her husband’s separate review hearing which included copies of Statutory Declarations under the hand of the applicant 10 March 2023 and 20 April 2022.

In her Declaration of 20 April 2022, the applicant (in part) declared that:
First, I declare that I accept the non-compliance and deeply regret providing incorrect or misleading information to the immigration department about my identity and reasons for seeking asylum…
My husband and I left Iran after he struggled to find work as an [occupation] as the Iranian government seemed to have placed sanctions against [him]. This caused us financial stress and we decided to flee Iran and go to [Country 1].
We travelled on our own passports to [Country 1]. Once there, we contacted people smugglers for assistance. They took our passports and told us that the only way we could be granted Australian visas was if we declared that we were undocumented Faili Kurds. The people smugglers told us that if we were deported back to Iran their business would be destroyed and, therefore, we had to follow their instructions exactly otherwise they would take revenge and harm on our family in Iran. This is why on arrival it to Australia we declared that we were undocumented Faili Kurds as we face harm from the people smugglers. From there, we could not correct this statement and had to continue with it…
I am very remorseful about providing incorrect and misleading information to the Australian immigration authorities. In 2016, my brother had a [medical condition] and was hospitalised in Iran. I wanted to go back and be with him, however, because of our asylum claim, I was unable to see him before he passed away. This has caused me a lot of sadness and anxiety.
My husband and I have suffered mentally due to living with false identities. In 2017, shortly after my brother passed away, I developed [Medical condition 1]. This was a very difficult time for me and my husband. We were unable to have my family members here to support me. I received a lot of support from the medical team and social workers. I am grateful for that. I am in remission and must undergo tests and review every six months. I will not get this level of care in Iran and my health will be in danger in Iran.
We have two Australian-born children, being [age] and [age] years old. They are both Australian citizens. Our eldest son [has Medical condition 3] and attend schools. The younger boys also having difficulties but not yet diagnosed. Australia has one of the best education healthcare systems for children with [Medical condition 3] and we really wish for our first son to continue receiving the assistance that he currently receives so that his future is not compromised. As to our second child, he is also having similar symptoms but has not yet been diagnosed. Both children will be totally neglected by the education system in Iran if we are to return to Iran.
I am an [Occupation 1]. I wish to be able to contribute in a significant way to the Australian [culture]. As a woman, I’ll be under pressure to wear Islamic Hijab and believe in a manner that is contrary to my belief if I am to return to Iran. I believe in equality of men and women in the right of women to live freely and be able to progress in arts, literature and science. I am also against the outdated Islamic rules that are imposed upon us in Iran. As a woman I am oppressed in Iran and my right is counted only as half of the men’s right. Domestic violence against women is very common and a high rate, but the laws are too vague, and the authorities do not take the victim seriously. Women are belittled and seen as the objects of pleasure. After having lived in Australia for 11 years, I cannot live in Iran and cannot let my children grow up in such a society…
The applicant in her Statutory Declaration of 10 March 2023 declared in part that:
…Our two children were born in Australia and they are Australian citizens. Our oldest son, [Master G], is now [age]. Our youngest son, [Master F], is [age] years old.
[Master G] has been diagnosed with [Medical condition 3] and [Medical condition 2]. [Master F] has also been diagnosed with [Medical condition 2]. [Master F] is showing similar signs of [Medical condition 3] to [Master G]. Australian health professionals have told us he may be diagnosed with [Medical condition 3] in the future as well…
…The events in Iran since the death of Mahsa Amini have deeply affected me. I follow all the news on the political protests and reprisals by the government of Iran. I am actively involved in protests against the reigning government that are held in Brisbane. These protests are mostly held on Saturdays, normally in the Brisbane CBD in front of the library or sometimes in front of Parliament. Our protest then go around the city. I participate in these protests against Iran because I do not want the reigning government to remain in place any longer.
I am at risk of being arrested, tortured and even killed in Iran at the hands of the authorities due to my involvement in Australia in anti-Iran protests, as well as due to my political views against the Iranian government which I have publicly expressed on social media…
… I am also concerned I will be at risk of sexual harassment in the workplace in Iran, due to being a woman. I’m also likely to be discriminated against as a woman in the workplace in relation to selection for employment, promotion and the amount of pay I am given. Such discrimination and mistreatment against women in the workplace is sanctioned by the reigning authorities.
My fear of being discriminated against and harassed in the workplace in Iran is supported by my own experiences from when I worked as a young woman in Iran…
… I am also at risk of harm in Iran because I was born a Muslim but I do not consider myself a Muslim anymore. I should not have to conceal my religious beliefs since it is my human right to choose my religion, but in Iran I’ll be forced to hide that I do not follow Islam, because otherwise I will be at risk of arrest, imprisonment, torture and even possibly death…
… I am active in the reigning community in Australia. I helped the uranium community with anything needed that is related to organising the [protests]. I also arrange traditional Kurdish dresses for an event involving children in our community by identifying and driving one hour to a location to borrow the traditional Kurdish children’s close.
My father’s Kurdish, while my mother is Persian. I understand Kurdish well but I cannot speak it as well. My husband is Kurdish and he speaks the Kurdish language well.
In Australia, I [work as an Occupation 1].
The applicant’s representative in the submission advanced on behalf of the applicant at [6] to [9] that:
We submit that the prescribed considerations in regulation 2.41 (e) and the Departmental policy considerations overall way in favour of non—cancellation, particularly when considering the best interests of the two school-aged, vulnerable, Australian citizen children of [Mr A] and [Ms E]…
We further submit that [Ms E]’s active involvement in anti-Iranian regime protests in Australia since the death of Mahsa Amini, and new country information about Iran, demonstrates that [Ms E] is at risk of harm or mistreatment in Iran, which is relevant to both the consideration of the hardship [Ms E] her husband and children would face in Iran, and to a consideration of Australia’s non-refoulment obligations.
We submit that in light of the best interests of the Australian citizen children and the recently heightened insecurity and repressions in Iran, the appropriate course of action for the Tribunal is to set aside the decisions under review and to restore [Mr A] and [Ms E].
The submission later under the heading of ‘Best Interests of the children’ provided that:
The applicants have two Australian citizen children, [Master G], aged [age] and [Master F], aged [age]. Both children have been diagnosed with [Medical condition 2]. Their eldest child [Master G] has been diagnosed with [Medical condition 3] and the youngest child is starting to show similar signs of [Medical condition 3] and maybe diagnosed in the future as well.
Both children attend a mainstream school, but their eldest son is on a waitlist to attend a [special] school in Brisbane and currently receives special support from teacher aides. [Master G] also receives funding from NDIS for therapies and treatments, such as speech pathology, psychology and occupational therapy. The total NDIS-funded supports for [Master G] from November 2021 to November 2022 is $23,915.44. Both children need to take daily prescription [medication] to treat their [Medical condition 2].
It has previously been submitted by [Mr A] that if the applicants were removed from Australia, and their children were removed with them, the eldest child would be medically and educationally neglected in Iran.
Both applicants submit that their children would not be able to access the therapy, treatment and support they require in Iran due to discrimination against people with disabilities, very limited publicly available therapies and the applicants inability to pay for therapy and supports privately. The children would also be very limited in accessing education, as well as employment in the future, due to their special needs. The discrimination and barriers to accessing education experienced by children with disabilities in Iran are set out below and in the enclosed country information research.
The submission provided relevant medical material supporting the submission and identifying the applicant’s children’s diagnosis and medical needs together with relevant country information which supported the submissions made and were consistent with the information in the Department of Foreign Affairs and Trade (DFAT)’s Country Information Report Iran, 14 April 2020 where under the heading of ‘People with Disabilities’ at 2.26 to 2.28 it is reported at 2.28 that:
Understanding of the needs of people living with disabilities is low in general society. Local sources told DFAT that people with disabilities face social stigma and encounter obstacles in accessing housing, employment and public transportation. According to foreign NGOs, children with disabilities, particularly girls and those with [disabilities] like [Medical condition 3], face barriers in accessing education and, in some cases, receive no education at all. Government-funded buildings built before 2018 are largely inaccessible to people with disabilities, and building accessibility for people with disabilities remains a problem more generally. Discrimination against people with disabilities is not outlawed explicitly and those with visual, hearing or speech will disabilities are barred from registering as candidates for parliament. Provision of support services differs between different categories of the disabled: while those with disabilities resulting from war service receive tailored insurance coverage, others find this difficult to obtain. Vocational education centers for people with disabilities exist, but are concentrated in urban areas.
FINDINGS AND REASONS
The Tribunal finds that the applicant provided incorrect information in response to questions 1, 7, 19, 21, 22, 23, 42, 43, 44, 45, and 46 in the visa holder’s protection visa application form. In response to these questions the applicant had stated that she was a stateless Faili Kurd. This was incorrect as outlined above as the applicant was an Iranian national.
The applicant does not dispute that she provided incorrect information in regard to the questions in her protection visa application as outlined above. For the reasons above the Tribunal finds that the applicant did not comply with s 101(b) of the Act in the way outlined by the Department in the NOICC.
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. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
Correct information
The correct information is that the applicant is an Iranian national and not a stateless Faili Kurd and would not suffer harm on the basis of her claimed statelessness or of being a Faili Kurd.
As such the Tribunal gives this factor weight in favour of cancellation.
The content of the genuine document (if any)
As there is no information relating to a genuine document, the Tribunal gives this consideration neutral weight.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted the protection visa on the basis of her claims of being stateless and a Faili Kurd. The delegate was fundamentally satisfied that the applicant was owed Australia’s protection on the basis of the applicant being a stateless Faili Kurd. The Tribunal is satisfied that the decision to grant the applicant the protection visa was based wholly or partly on this incorrect information which the applicant provided in her protection visa application.
The Tribunal gives this consideration weight in favour of cancellation.
The circumstances in which the non-compliance occurred
The non-compliance of claiming to be a stateless Faili Kurd occurred when the applicant made her application for a protection visa. In response to the NOICC and to the Tribunal in her submissions and accompanying material the applicant conceded that on the advice of the people smugglers and to obtain a positive result she had fabricated the claim that she and her husband were stateless Faili Kurds. The Tribunal notes that when asked to comment by the citizenship delegate as to the adverse information including the inconsistent claims around holding identity documents the applicant voluntarily and readily correctly identified herself and admitted that she had provided incorrect information. The applicant immediately and since being confronted with this information has expressed remorse and apologised for this conduct.
The Act provides that a visa can be cancelled if a non-citizen provides incorrect information. This demonstrates that the legislation views the provision of incorrect information in an application for a protection visa to be serious enough to allow for the cancellation of that visa. In short compass, the applicant claimed that she provided the incorrect information because of the advice she and her husband received from the [Country 1] people smuggler prior to her arrival in Australia.
The Tribunal gives this consideration weight in favour of cancellation.
The present circumstances of the visa holder
The applicant is presently [age] years of age, and her husband is [age] years of age. They have two Australian sons aged [age] and [age] years of age who were born in Australia and are Australian citizens. The applicant’s eldest child [has Medical condition 3] and receives specialist educational and health support in Australia. Her second child although not diagnosed with [Medical condition 3] has been displaying symptoms of [Medical condition 3] and she suspects he will be diagnosed [as] he grows older. The applicant has declared that she and her husband have suffered mentally for many years from hiding their true identities. The applicant is an [Occupation 1].
The Tribunal gives this consideration weight against cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant when confronted with instances of providing incorrect information admitted that she had done so and immediately provided identity documents and other information which established her true identity and that of her husband. The applicant in this regard has cooperated with the Department and their investigations into establishing the true identity of the applicant and her husband. In this regard the Tribunal finds that the applicant has cooperated with the Department in every way including responding in detail to the NOICC within the prescribed time. The Tribunal finds that the applicant has engaged with the Department in a fulsome manner in respect of the cancellation process and assessment.
The Tribunal gives this consideration significant weight against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is satisfied that there are no other instances of non-compliance by the applicant and as such the Tribunal gives this consideration some weight against cancellation.
The time that has elapsed since the non-compliance
The applicant’s non-compliance occurred when applying for the protection visa on 14 June 2011. Given the passing of almost 12 years since the non-compliance and noting that the applicant and her husband have established themselves and their Australian children here in Australia, the Tribunal gives this consideration weight against cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal in conducting this Review which included a review of the Department’s file is not aware of the applicant and/or her husband having breached the law since the non-compliance.
The Tribunal gives this consideration significant weight against cancellation.
Any contribution made by the holder to the community
The Tribunal has considered the applicant’s involvement in [a specified] industry and the supporting material provided with her submission to the Tribunal. This material indicates that the applicant has sought to and is engaged with the Australian community in a positive manner.
The Tribunal gives this consideration weight against cancellation.
Other factors
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 applicant and her husband have two Australian citizen children who would be adversely affected by the applicant’s visa cancellation. Further and although the applicant’s husband has made his own application for review, if the applicant’s visa were cancelled then her husband’s visa would also be cancelled.
The Tribunal gives this consideration significant weight against cancelling the visa.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said 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 Tribunal acknowledges that since her arrival in Australia, the applicant and her husband have become parents to two children. Those children are presently aged [age] and [age] years and both Australian citizens. Both children have been diagnosed with [Medical condition 2]) and the eldest has also been diagnosed with [Medical condition 3]. Both the applicant and her husband provide for the care of their children and the eldest child receives special support in his schooling and receives funding from the NDIS for therapies and treatments.
The Tribunal finds that if the applicant was returned to Iran given the applicant and her husband do not have any other family in Australia their children who are Australian citizens would travel with their parents to Iran. The Tribunal is satisfied that in this situation the applicant and her husband may well have difficulties in obtaining visas for their children to travel to and enter and reside in Iran. Further the Tribunal is satisfied on the evidence before it, including the relevant country information that the applicant’s children would not receive the appropriate educational and health support that their children require and that their children have been receiving in Australia if they were to re-locate to Iran.
Therefore, if the applicant’s children were to re-locate to Iran as a result of the applicant’s visa being cancelled the Tribunal is satisfied that this would have a significant negative effect on the best interests of these children.
The Tribunal gives this consideration significant weight against cancelling the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
A protection visa is, in part, a mechanism by which Australia provides protection from situations which engage its non-refoulement obligations under the 1951 Convention relating to the Status of Refugees[1] and the 1967 Protocol relating to the Status of Refugees[2] as well as under other international treaties. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm and the obligations are not confined to s 36(2) of the Act.[3]
[1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954.
[2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, entered into force 4 October 1967.
[3] Ibrahim v Minister for Home Affairs [2019] FCAFC 89, [103].
It is worth outlining that a relevant component of Article 33 of the Refugees Convention provides that no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion; unless there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.[4]
[4] United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (‘Refugees Convention’).
In respect to the applicant’s claims as outlined in her representative’s submission and her Statutory Declarations of being of Kurdish descent and her fears of being targeted by the Iranian authorities on account of her ethnicity, being a woman and having an anti-government profile, the Tribunal has considered the DFAT Country Information Report Iran, 14 April 2020 where under the heading of ‘Kurds’ at 3.18 to 3.22 it is reported at 3.21 to 3.22 that:
International sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association. The authorities have reportedly banned some Kurdish-language newspapers, journals and books. Authorities have denied Kurdish NGOs registration permits, and brought security charges against persons working with such organisations. NGOs claim this has suppressed legitimate activity. Teaching of the Kurdish language is prohibited in most schools and universities, although its general use is tolerated.
DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities. DFAT further assesses that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities. Those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.
And under the heading of ‘Political opinion (Actual or Imputed)’ at 3.78 to 3.82 it is stated at 3.81 to 3.82 that:
Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Social media accounts of well-known figures and celebrities attract particular scrutiny (see Artists and Musicians). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State).
Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.
Under the heading of ‘Artists and Musicians’ at 3.104 to 3.106 it provides that:
Although Iran has a vibrant cultural scene, the music, arts and film industries are subject to strict censorship. The Ministry of Culture and Islamic Guidance reviews books, films and exhibitions for their adherence to Islamic values before publication or exhibition. Western music has been officially banned since the 1979 revolution, but is commonly played in coffee shops, restaurants, taxis and private homes. The Tehran Symphony Orchestra regularly performs classical Western music. Heavy metal music is tolerated. Male and female artists are permitted to perform together on stage, including in choirs and orchestras, although female artists are not permitted to perform solo in front of mixed-gender audiences. Such performances are periodically shut down by the authorities, but continue to occur. Female solo vocalists are not allowed (in May 2019, a female singer was summoned to appear in court after performing solo for tourists in Isfahan Province). The frequency with which authorities have shut down concerts featuring female musicians and vocalists has increased under the Rouhani Administration.
A local source told DFAT that filmmakers, musicians and other artists are tolerated as long as their work observes ‘red lines’. ‘Red lines’ include criticism of the Supreme Leader, the IRGC and the Islamic system of governance, as well as anything that is considered to violate Islamic values and principles (see also Media). As noted in Political Opinion (Actual or Imputed), there is significant scrutiny of the social media accounts of well-known figures and celebrities.
DFAT assesses that, while most artists and musicians in Iran are able to perform their works without significant obstacle, the authorities are likely to prevent performances by solo female artists and musicians (or mixed-gender groups of performers). This is more likely to occur in more socially conservative areas. DFAT assesses that artists who cross ‘red lines’ as defined by the authorities would likely attract adverse attention from the authorities. This may include harassment, arrest and prosecution.
The Tribunal after carefully considering the evidence before it and the relevant country information as outlined above is satisfied that the applicant faces a real chance of persecution involving serious harm if she was returned to Iran. Therefore, the Tribunal finds that there are non-refoulment obligations and that any forced return to Iran of the applicant would breach those obligations. Further and in reliance of the Tribunal’s determination of the best interests of the child as outlined the Tribunal finds that the cancellation could result in a breach of the family unity obligations.
The Tribunal gives this consideration significant weight against cancelling the visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
In the event the applicant’s visa was to be cancelled she would be subject to s 46(1) of the Act and barred from making an application for a further visa. Equally upon cancellation the applicant would become an unlawful non-citizen and could be liable for detention under s 189 of the Act and removal from Australia under s 198 of the Act if the applicant did not voluntarily depart Australia.
In this regard the Tribunal does note that there are practical considerations that may make the applicant’s indefinite detention unlikely given the presence of the applicant’s Australian children who are both Australian citizens and who reside and are presently cared for in Australia by the applicant and her husband.
The Tribunal having regard to the issues already considered and identified as to the applicant and her husband being parents to two young Australian citizen children gives this consideration significant weight against cancellation.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The Tribunal, having considered the applicant’s children’s educational and medical needs as outlined in the applicant’s evidence above, and also considering the relevant country information addressing such educational and medical support in Iran as outlined above, together with matters determined as to the best interests of the children, is satisfied that the applicant and her husband and children would suffer a significant degree of hardship if returned to Iran as a result of the applicant’s visa being cancelled.
The Tribunal gives this consideration significant weight against cancelling the visa.
After giving careful consideration to the applicant’s circumstances and the non-compliance with the provisions of the Act by the applicant which was a very serious case of non-compliance and given the level of cooperation and remorse of the applicant shown during her interactions with the Department and the Tribunal in this matter, the Tribunal finds that there are limited grounds for cancellation while finding that there are significant factors which weigh in support against cancellation.
Therefore, 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
David James
Senior 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.

[2023] AATA 2333

18 April 2023

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