2304899 (Migration)
[2025] ARTA 370
•18 February 2025
2304899 (MIGRATION) [2025] ARTA 370 (18 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2304899
Tribunal:General Member M O'Loughlin
Place:Adelaide
Date: 18 February 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 18 February 2025 at 2:34pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – nationality – Iranian citizenship – Faili Kurd – family composition – existing protection finding – facing removal to Iran – constitutionality of detention of an alien – non-refoulement obligations – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, s 24
Migration Act 1958, ss 36, 48, 100, 107, 109, 112, 140, 189, 195, 197, 198
Migration Regulations 1994, Schedule 2, rr 070.611, 070.612; r 2.41CASES
ASF17 v Commonwealth of Australia [2024] HCA 19
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Dy v Minister for Immigration and Multicultural Affairs [2006] FCA 673
McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528
MIAC v Khadgi (2010) 190 FCR 248
MIMA V JALAL (2000) 102 FCR 63
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Syed Jamal Jalal and Hamida Jalal v Minister for Immigration and Multicultural Affairs [2000] FCA 207 (3 March 2000)
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCA 40 (6 November 2024)Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 March 2023 to cancel the applicant’s Subclass 155 Return (Residence) (Class BB) visa under s 109 of the Migration Act 1958 (the Act).
2. 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 Administrative Appeals Tribunal on 22 August 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Persian and English languages.
4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
5. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal).
6. Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT[1].
[1]s 24 (2) Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
7. This decision and statement of reasons is made by the Tribunal in satisfaction of the applicant’s request that the AAT review the delegate’s decision.
8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
9. The applicant is a citizen of Iran.
10. He was born on [date] and at the time of this decision is [age] years old.
11. The applicant was born in Tehran and lived in Iran until he left for Australia in early January 2010.
12. He came to Australia by boat via Christmas Island, where he was interviewed by a representative of the then Department of Immigration and Citizenship on 29 January 2010.
13. When asked his nationality in that interview, he claimed to be a stateless Faili Kurd. He said he had been living in Iran but had faced difficulties there because he is not Iranian.
14. On 19 March 2010 the applicant requested a Refugee Status Assessment.
15. In support of that request he provided a ‘statement of claims’ he had prepared with the help of a migration agent and an interpreter. He signed that statement on 19 March 2010.
16. On 28 September 2010 the applicant completed a form 866C being an application for a Protection Visa. In that form he asserts that he is stateless and that he does not have Iranian citizenship.
17. His application for a protection visa was granted on 30 September 2010.
18. On the basis of that protection visa the applicant lived in Australia as a permanent resident until [October] 2014 when he applied for Australian citizenship.
19. On 10 February 2015 he was interviewed as part of that application.
20. In the interview he said that he is a documented Iranian citizen.
21. His application for citizenship was refused.
22. On 5 July 2017 a delegate of the Minister sent the applicant a notice under s 107 of the Act (the 2017 notice) advising the applicant that his protection visa was being considered for cancellation.
23. The reason the Minister was considering cancelling the applicant’s protection visa was because he had not complied with s 101(b) of the Act.
24. The notice cited two instances of non-compliance. The first related to the applicant’s failure to declare that he had a brother. The other was that he had falsely represented himself as stateless.
25. The applicant provided a response to the 2017 notice by letter from his then representatives dated 28 July 2017.
26. The submissions attach a statutory declaration from the applicant dated 27 July 2017. The submissions assert that despite saying he is a citizen of Iran when interviewed for his citizenship application, the applicant is in fact a stateless Feili Kurd [2].
[2] Submissions MSM Legal 28 July 2017 pge. 2, last 2 bullet points.
27. The statutory declaration of 27 July 2017 says the applicant was confused when he previously said he is an Iranian citizen. The declaration says the applicant did not understand what was happening in the departmental interview in 2015. He asserts that he is not an Iranian citizen and he is not documented in Iran.
28. On 21 December 2017 the applicant applied for the subject Resident Return visa. The relevant requirements for that visa were that, at the time of application, the applicant was a permanent resident whose last permanent visa was not cancelled. The applicant met those time of application requirements.
29. On 29 March 2018, on the basis of the 2017 notice of intention to consider cancellation, a delegate of the Minister decided to cancel the applicant’s Protection visa which had been granted on 30 September 2010.
30. On 3 April 2018 the applicant was granted the subject Resident Return visa.
31. The applicant was entitled to the grant of the Resident Return visa because he met the requirements at the time he applied for it, despite his Protection visa later being cancelled.
32. On 6 January 2023 the Department sent the applicant a Notice of Intention to Consider Cancellation of the Resident Return visa under s 107 of the Act (the s107 notice).
33. The s 107 notice advised that cancellation of the applicant’s Resident Return visa was being considered because the applicant had not complied with s 101(b) in the Protection Visa application he had made on 28 September 2010.
34. The instances of non-compliance cited in the s 107 notice are essentially the same as those cited in the notice of 5 July 2017 (which related to the Protection visa).
35. The applicant responded to the s 107 notice on 20 January 2023[3]. In that response he maintained that he is a stateless Faili Kurd
[3] Moya Migration Law, 20 January 2023.
36. The Resident Return visa was cancelled by decision of a delegate of the Minister dated 31 March 2023. The applicant sought this review of that decision on 5 April 2023.
37. The hearing of this matter was listed for Thursday 22 August 2024. On the afternoon of 21 August 2024 the applicant submitted a draft statutory declaration in which he admits he had provided incorrect information to the Department[4].
[4] Paragraphs 17 to 19 of unexecuted statutory declaration of the applicant.
38. The applicant now admits that he is, and has at all times been, a citizen of Iran. He admits he held an Iranian passport when he arrived in Australia.
Preliminary Legal Issues
Was the s 107 notice valid?
39. On 6 January 2023 the Department sent a s 107 notice to the applicant advising that it appeared that on 26 September 2010 when the applicant applied for a Protection Visa, he had not complied with s 101(b) of the Act because he provided incorrect information.
40. The notice advised that because of that failure to comply with s 101(b), the subject Resident Return visa was being considered for cancellation under s 109 of the Act.
41. The notice further noted that, although the failure to comply with s 101(b) was in relation to an application for a visa other than the subject Resident Return visa, the effect of s 107A is that possible non-compliances in respect of a previous visa held by the person may be grounds for the cancellation of a current visa.
42. The Tribunal has had regard to the submissions in response made by the applicant’s then representatives on 20 January 2023.
43. Essentially, those submissions say the Minister’s power to cancel a visa for non-compliance with s 101(b) of the Act arises under s 109, which contemplates that the notification procedure in s107 will be followed.
44. The submissions observe that s 107A provides that non-compliances in respect of any previous visas held by the person may be grounds for cancellation of their current visa.
45. That is relevant in this matter because the non-compliances cited in the s 107 notice were all in the Protection Visa application of 28 September 2010 (not in the subject Resident Return visa application).
The submissions refer to s 112, which effectively provides that the Minister may provide a notice under s 107 even where one has already been provided, if there has been a further instance of non-compliance.
The submissions cite the reasoning in McDade v Minister for Immigration and Multicultural Affairs[5] and on appeal[6]. The submissions suggest, starting at paragraph 22, that s107A and s 112 should be read together to the effect that ‘another’ notice under s107 may only be issued where there is ‘…another instance of non-compliance’.
[5] [2000] FCA 528
[6] Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457.
The submissions effectively suggest that, because the applicant’s Protection Visa was cancelled on the basis of non-compliance with s 101(b), the same instances of non-compliance cannot be the reason for cancellation of the Resident Return visa.
The Tribunal is not persuaded by that submission.
The provisions do not evince the intention to prevent the Minister from issuing a notice under s 107 in respect of a separate visa in relation to which there has been no such notice previously issued.
Further, s 107A specifically contemplates that instances of non-compliance in respect of one visa may be grounds for cancellation of a later visa.
The Tribunal is satisfied that the instances of non-compliance cited in the s 107 notice 6 January 2023 may properly provide a basis for cancellation of the subject Resident Return visa.
The Tribunal is satisfied that the s 107 notice dated 6 January 2023 is valid.
Was there non-compliance as described in the s 107 notice?
Failure to identify his brother
The applicant signed a Protection visa application (PVA) in Form 866 on 28 September 2010.
On page 7, the s 107 notice identifies an instance of the applicant’s non-compliance with s101(b) in that application as being that he failed to identify a brother who lives in Iran.
The applicant has admitted his failure to declare his brother in the protection visa application. This is a clear non-compliance with s101(b). However, the Tribunal is not satisfied that this non-compliance supports a finding that the visa should be cancelled. Therefore, the Tribunal will not consider that non-compliance any further in these reasons and does not take it into account in its decision.
Claims to be stateless
The s107 notice identifies 8 instances of non-compliance with s101(b) arising from the applicant’s assertions that he is stateless in his visa application and from his adoption of the RSA statement of 9 March 2010 in which he asserts he is stateless.
The applicant admitted in his evidence and in his written statement of August 2024 that he is a citizen of Iran and that he holds an Iranian passport.
The Tribunal is satisfied that the 8 further instances of non-compliance in the applicant’s PVA of September 2010 are demonstrated.
Finding
The Tribunal finds that the applicant’s assertions that he was stateless as set out in the s107 notice was each an instance non-compliance with s 101 by the applicant.
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 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.
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.
Preliminary Legal Consideration – Does the Applicant Face Removal to Iran or Indefinite Detention?
The submissions made on the applicant’s behalf largely predate some relevant judicial consideration of these matters.
By letter of 13 January 2025 to the applicant’s representatives, the Tribunal observed that, consistent with the decision of the High Court in ASF17 v Commonwealth of Australia [2024] HCA 19, and the application of s 197C (3) of the Act, the applicant arguably does not face removal to Iran.
This this is so because there is no suggestion the applicant might be considered for removal to any other country than Iran, and because a protection finding has been made in his favour.
The Tribunal further advised that, given the applicant will apparently fall within the circumstances contemplated by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, he will probably not be liable to indefinite detention and would presumably be considered for a relevant Bridging visa.
The Tribunal observed that the applicant’s submissions generally contemplate the impact on the applicant if he is returned to Iran or subjected to indefinite detention.
In the circumstances the Tribunal invited the applicant’s representatives to make any further submissions they may wish to make in contemplation of the applicant not being liable to be removed to Iran or subject to indefinite detention.
The invitation offered the opportunity to make any further submissions within 14 days or to advise if more time was needed.
The applicant’s representatives wrote on 28 January seeking 14 more days to prepare a submission, advising that the applicant’s representative had just returned from extended sick leave. The Tribunal responded allowing a further 7 days.
On 6 February 2025 the applicant’s representatives submitted a further statutory declaration from the applicant which is referred to where relevant.
Removal
The applicant’s submissions of 2017 deal with non-refoulement considerations at some length.
Those submissions predate the addition of ss 197C(3) and s 197D to the Act.
Essentially, s197C(3) provides that an unlawful non-citizen in respect of whom a ‘protection finding’ has been made, is not liable to be removed to a country if subparagraphs (a) to (c) apply.
The Tribunal is satisfied that the applicant made a valid application for a protection visa that has been finally determined and that a ‘protection finding’ for the purposes of the Act was made when the applicant was granted a protection visa. Thus, the applicant satisfies paragraphs 197C(3)(a) and (b).
To come within paragraph 197C(3)(c) the Tribunal must be satisfied that none of subparagraphs (i) to (iii) apply.
The Tribunal is satisfied that subparagraphs 197C(3)(c)(ii) and (iii) do not apply.
Subparagraph 197C(3)(c)(i) applies if the decision in which the protection finding was made has been ‘quashed or set aside’.
The normal meaning of ‘quashed’ in the current context would be that the decision is quashed by a court.
The normal meaning of ‘set aside’ in the current context is that the decision is set aside by this Tribunal.
The Tribunal notes that the decision in which the protection finding was made was the decision to grant the applicant a protection visa, made on 30 September 2010.
That visa was later cancelled by the Minister. The decision to grant it was not quashed by a court or set aside by the Tribunal.
Despite that, it is clear that the protection finding in this matter was impugned when the Minister decided to cancel the related protection visa.
With some hesitation the Tribunal finds that the decision in which the protection finding was made has not been ‘quashed or set aside’ and so s197C(3)(c)(i) is not invoked.
While it is not relevant to consideration of this matter, the work to be done by s197C(3)(c)(i) seems limited. For a decision in which a protection finding is made to be ‘quashed or set aside’, it would need to be reviewed. The Minister would generally lack standing to seek review of their own decision. An applicant, having had a protection finding made in their favour, would only have standing to seek review of an adverse decision. That would not relate to the protection finding upon which the applicant would presumably continue to rely, even if the decision not to grant the visa were quashed or set aside.
For the provision to have relevant effect there is presumably scope to interpret ‘quashed or set aside’ in that context as broad enough to include ‘cancelled by the Minister’.
In any event, s 197D provides a procedure for the Minister to follow if they take the view that the non-citizen is no longer a person in respect of whom a protection finding would be made. That procedure has not been applied to this applicant.
That being the case, the applicant has a protection decision in his favour and comes within s 197C(3). He is not liable to be removed from Australia if his Resident Return visa is cancelled.
Indefinite Detention
The applicant submits that if his visa is cancelled, he will become an unlawful non-citizen and be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart[7].
[7] August 2024 Declaration, par. 39 - 1
It is implicit in this submission that the applicant is reluctant to depart voluntarily. That is supported by his assertion in paragraph 38 of August 2024 declaration in which he says:
‘…I never want to return to Iran.’
He also complains that he will be limited in his capacity to apply for further visas to Australia by reason of the operation of s48 of the Act. He also complains that he may be affected by Public Interest Criterion 4013 limiting the grant of a further temporary visa.
The Tribunal accepts that if the applicant’s visa is cancelled, his capacity to apply for further visas to Australia will be restricted under s 48 of the Act and the grant of further visas may be subject to a limitation for a specified period.
These are the intended ramifications of the cancellation of the applicant’s visa and the Tribunal does not accord them any weight against cancelling the visa.
The applicant also says if his visa is cancelled, he faces indefinite detention.
The Tribunal has considered the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ)[8].
In that matter the High Court considered the decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (Lim)[9].
Lim considers the constitutionality of detention of an alien (other than for punitive purposes in the context of the criminal justice system).
At paragraph 31 of NZYQ the court relevantly summarises Lim as requiring that detention of an alien must be limited to a period that is ‘reasonably capable of being seen as necessary’ for one or other of two legitimate and not punitive purposes, being to remove the alien from Australia or to enable the alien to apply for permission to remain in Australia.
[8] [2023] HCA 37.
[9] (1992) 176 CLR 1.
100. The applicant has had a protection finding (for the purposes of s 197C of the Act) made for him and therefore s 198 of the act does not require or authorise his removal to Iran (s197C(3)).
101. There is no suggestion that the applicant could be removed to any other country.
102. The Tribunal has regard to the decision of the High Court in ASF17 v Commonwealth of Australia[10] and to the comment at [39]:
‘…it would be punitive to detain an alien with the benefit of a protection finding if there were no real prospect of the removal of the detainee from Australia becoming practicable in the reasonably foreseeable future to any country other than the country the subject of the protection finding.’
[10] [2024] HCA 19 (10 May 2024)
103. The Tribunal is satisfied that the applicant has the benefit of a protection finding. Absent the protection finding being quashed, set aside or vacated under s 197D there will be no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
104. The Tribunal is satisfied that as long as the protection finding is in force the detention of the applicant would be relevantly punitive and therefore unconstitutional.
105. The Tribunal is not satisfied the applicant would face indefinite detention if his visa is cancelled and accords that consideration no weight against cancellation of the visa.
Likely Bridging Visa Conditions
106. The Tribunal must nonetheless consider what impact there may be on the applicant if his visa is cancelled but he is not liable to deportation or indefinite detention.
107. The Tribunal has had regard to the decision of the High Court in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (YBFZ). [11]
[11] [2024] HCA 40 (6 November 2024)
108. If the applicant faced indefinite immigration detention he would presumably be considered for the grant of a Bridging visa R (BVR) under s 195A, and released from immigration detention, as was the applicant in YBFZ.
109. Pursuant to that decision the applicant could not be subjected to a visa condition that is punitive, such as a condition that he be subjected to a curfew or to monitoring[12].
[12] Par. 83.
110. The Tribunal has regard to the provisions of r 070.611(a) and r 070.612 of the Migration Regulations and is satisfied that the conditions referred to would be imposed on a BVR issued to the applicant.
111. Those conditions are set out in Schedule 8 to the regulations and are conditions 8303, 8513, 8514, 8541, 8542, 8543, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8564, 8614, 8616 and 8625.
112. Condition 8303 might be described as providing that the relevant visa holder must not become involved in activities disruptive to or in violence threatening harm to the Australian community or a group within it.
113. Condition 8513 requires the relevant visa holder to notify of his or her address within 5 days of the visa grant.
114. Condition 8514 specifies that there must be no material change in the circumstances on the basis of which the visa was granted.
115. Conditions 854, 8542, and 85431 require the holder of a relevant visa to facilitate or not to obstruct efforts to effect his or her removal from Australia. The Tribunal is satisfied that these conditions will be ineffective in relation to the applicant who does not face removal from Australia.
116. Condition 8551 could be summarised as requiring a relevant visa holder to obtain the Minster’s approval before working in an industry in which he has access to certain chemicals, works in the aviation or maritime industries or works handling security sensitive biological agents.
117. There is no suggestion the applicant has ever worked in such occupations and there is no evidence he wishes or needs to pursue any such employment.
118. Cl 8552 requires a relevant visa holder to notify the Minister of changes in his working details.
119. Cl 8553 prohibits a relevant visa holder from becoming involved in activities that are prejudicial to security.
120. Cl 8554 prohibits a relevant visa holder from acquiring weapons or explosives or documents regarding the use of weapons or explosives.
121. Cl 8555 requires a relevant visa holder to obtain the Minister’s approval before learning to fly or flying an aircraft. There is no evidence that the applicant wishes or needs to learn to fly or wishes or needs to fly an aircraft.
122. Cl 8556 prohibits a relevant visa holder from communicating or associating with certain specified organisations.
123. Cl 8560 requires a relevant visa holder to obtain the Minister’s approval before acquiring chemicals of security concern as defined. There is no evidence that the applicant wishes or needs to obtain such chemicals.
124. Cl 8561 requires a relevant visa holder to obey a written direction by the Minister to attend to be interviewed.
125. Cl 8562 prohibits a relevant visa holder from taking up employment that provides access to or involves the use of weapons or explosives. It is not clear whether the applicant was armed when he worked as [an occupation 1] but it is possible that this requirement may have some impact on the applicant’s work.
126. Cl 8563 prohibits a relevant visa holder from undertaking activities using or training in the use of weapons or explosives or possessing or accessing documentary instructions of their use.
127. Cl 8564 prohibits a relevant visa holder from engaging in criminal conduct.
128. Cl 8614 requires a relevant visa holder to notify immigration of any interstate or overseas travel.
129. Cl 8616 requires a relevant visa holder to notify immigration of details of contact with persons who have been charged with or convicted of a criminal offence.
130. C 8625 requires a relevant visa holder to notify the Minister of any change in his name or contact details.
131. It does not appear that the applicant would attract other visa conditions.
132. The Tribunal has considered the conditions to which the applicant is likely to be subjected as the holder of a BVR. The Tribunal assesses the conditions as unlikely to be of much impact on the applicant. The Tribunal accords this consideration little weight against cancellation of the visa.
133. In his most recent statutory declaration, that of 6 February 2025, the applicant complains that he is subject to certain restrictions by reason of being on a bridging visa.
134. At paragraph 6 he complains that he has been diagnosed with major depressive disorder, post-traumatic stress disorder and somatic symptom disorder. He says he was receiving treatment for all of his mental health conditions and was on a pension but since his visa cancellation he has not received any support as a pensioner.
135. The Tribunal notes this is not consistent with the applicant’s testimony in which he said he had worked for most of his time in Australia in a range of occupations subject to some physical limitations. He told the Tribunal he is currently working as an [occupation 2]. He did not say his mental health conditions were so debilitating as to render him unfit for work. He did not describe any treatment for his mental conditions and has not provided evidence of such treatment.
136. He provided a note from a psychologist who does not claim to be treating him and a note from his GP to his previous representative which appears to pre-date manifestation of any psychological problems as it does not refer to any.
137. The Tribunal is not satisfied the applicant requires support as a pensioner and is not satisfied that such support would be denied him on a BVR. The Tribunal accords this consideration no weight against cancelling the applicant’s visa.
138. In paragraph 8 the applicant claims he has not been successful in job applications because he does not have work rights. There is no evidence the applicant does not have work rights and no evidence he has been denied any jobs. The Tribunal does not accept this and does not accord this consideration any weight against cancellation of the applicant’s visa.
139. The applicant claims in paragraph 9 that he has been unable to travel outside of Australia because of his visa cancellation and that he has not seen his family for 15 years for that reason.
140. The visa that is being considered for cancellation, being a resident return visa, would allow the applicant to return to Iran. The applicant has not expressed any wish to do so until this declaration of February 2025. The Tribunal is not satisfied the applicant intends to visit Iran and accords this consideration no weight against cancellation of the applicant’s visa.
141. At paragraph 11 the applicant claims he cannot have his family here because he is a refugee. The Tribunal accords this consideration some weight against cancellation of his visa.
142. In the same paragraph he says he cannot marry ‘because he is in limbo’. The applicant has not expressed any wish to marry. The Tribunal accepts that his potentially fluid residential status may affect his capacity to marry in some way. The Tribunal accords this consideration a little weight against cancellation of his visa.
143. The applicant claims he cannot function because he is uncertain of his future. He does not explain what he means by that. The Tribunal accords this consideration no weight against cancellation of the applicant’s visa.
Implied Ministerial Waiver
144. The Tribunal has considered the reasoning of Finkelstein J in Syed Jamal Jalal and Hamida Jalal v Minister for Immigration and Multicultural Affairs (Jalal)[13].
[13] [2000] FCA 207 (3 March 2000).
145. In that decision the Judge found that the Minster should be taken to have excused an applicant’s non-compliance if the Department was aware of the non compliance at the time the visa was granted.
146. At paragraphs 30 of that decision the Judge observes;
“…the structure of a subdivision proceeds on the basis that a non-citizen has obtained a visa or gained entry by the provision of inaccurate information.”
147. In paragraph 31 the Judge continues;
“If the Minister is aware that a non-citizen has not complied with s 101 the Minister can refuse to grant a visa. On the other hand, if the Minister decides that the non-citizen who has failed to comply with s 101 should be granted a visa that should be an end to the matter.”
148. His Honour goes on to consider submissions made by the Minister in that matter and at paragraph 33 notes that there are circumstances in which an applicant is entitled to a visa even where the requirements of Division 3, subdivision C of the Act have not been complied with.
149. This reasoning was considered on appeal[14]. The Full Court did not agree with His Honour’s conclusions, although it’s reasoning was obiter as the Court concluded that the relevant provisions of the Act did not apply to that applicant.
[14] MIMA V JALAL (2000) 102 FCR 63 at [18] to [24].
150. Having said that, the Full Court’s reasoning was cited with approval in Dy v Minister for Immigration and Multicultural Affairs [2006] FCA 673 (3 May 2006)[15]. To the extent necessary, the Tribunal relies on that decision to find that the Minister, and thereby this Tribunal standing in the shoes of the Minister, has the power to cancel the applicant’s visa.
[15] At [26].
151. The Tribunal observes that the fact that the Minister was aware of the non-compliance at the time the subject visa was cancelled may be a factor to consider in deciding whether to cancel the visa.
152. In this matter it does not appear that the Minister had a discretion not to grant the applicant a Resident Return visa, as the applicant fulfilled the ‘time of application’ criteria for grant of that visa.
153. The Tribunal is satisfied that, in granting the applicant’s Resident Return visa, the Minister was not implicitly condoning the applicant’s non-compliance and there is no consequent bar on cancelling the applicant’s visa.
Considerations Prescribed by r 2.41
The Correct Information
154. The first relevant prescribed consideration for the purposes of the regulation is the correct information.
155. Relevantly, the correct information is that the applicant was not a stateless Feilli Kurd when he applied for the Protection Visa, and further he was an Iranian national and held an Iranian passport.
156. The Tribunal notes that the applicant said in his testimony that he made the false claim to be stateless because he did not believe he had valid claims to be owed protection by Australia.
157. It appears the applicant was granted a protection visa because he claimed to be stateless.
158. If he had not been granted a protection visa, he would not have been eligible for the subject Resident Return visa.
159. The Tribunal is satisfied that if the applicant had provided the correct information to the Department, he would probably not have been granted the subject Resident Return visa.
160. Therefore, the Tribunal is satisfied the correct information weighs in favour of cancellation of the Resident Return visa and accords it substantial weight.
The Content of the Genuine Document (if any)
161. This consideration is not relevant to this review.
Whether the decision to grant a visa was based, wholly or partly, on incorrect information.
162. There is nothing to suggest that the decision to grant the subject Resident Return visa was based wholly or partly on the applicant’s misrepresentations in his Protection Visa application.
163. The consideration does not require the incorrect information to have procured the grant of the subject visa, but of ‘…a visa’. In the circumstances the Tribunal is entitled to take into account whether the Protection visa was granted, wholly or partly, on the incorrect information.
164. The applicant’s submissions observe that ‘if the applicant had declared himself an Iranian citizen at the time he applied for a protection visa, this would not have excluded him from the grant of a visa.’[16]. The submissions say that, had the applicant been truthful in his Protection Visa application, the effect would have been to alter the nature of the inquiry to be undertaken when the application was assessed.
[16] Letter MSM Legal 28 July 2017 at pages 3 and 4.
165. The Tribunal observes that the applicant set out his protection claims in his statement of claims dated 19 March 2010.
166. The statement of claims refers to the applicant’s statelessness, his lack of Iranian citizenship, his lack of entitlement to health insurance, harassment he and his family suffered, his lack of work rights, his lack of identity documents, his lack of voting rights, and his lack of civil rights.
167. The applicant attributes all of these claims to his statelessness.
168. He also complains that he was accused of links to the West because he wanted to watch satellite television during the elections and was detained for 3 days.
169. The Tribunal notes the applicant’s testimony that he did not believe he had protection claims that would sustain the grant of a visa unless he claimed to be stateless.
170. Although this consideration appears to weigh heavily in favour of cancelling the applicant’s visa, it is effectively the same as the consideration of the effect of the correct information and should not be counted twice so the Tribunal accords this consideration no further weight in favour of cancellation.
The circumstances in which the non-compliance occurred
171. The applicant’s response of 28 July 2017 to the s 107 notice relating to the Protection visa says that the applicant was seeking to engage Australia’s protection obligations because he feared harm in Iran and thus was ‘extremely vulnerable’, which should be taken into account[17].
[17] Page 4 at (d).
172. In the applicant’s statement of 21 August 2024, he says he was told that by claiming to be stateless he would avoid having to prove what had happened to him in Iran. He did not believe he had strong claims for protection. This is inconsistent with his claims to face harm in Iran.
173. Having considered the evidence and submissions the Tribunal is not satisfied the applicant was ‘extremely vulnerable’ when he made the non-compliant assertions.
174. The Tribunal finds that the applicant told the department he was stateless because he did not believe he had strong claims for protection rather than because he was overcome by fear of returning to Iran.
175. The Tribunal accords this consideration little weight against cancelling the Resident Return visa.
The present circumstances of the visa holder
176. In the 2017 submissions the applicant’s former representative urged the Tribunal to have regard to:
·Present medical conditions.
·Reliance on Disability Support Pension from Centrelink to meet his basic needs.
·Inability to raise funds to support himself upon return to Iran, arising from his considerable debt in Australia.
·Inability to meet his basic needs in Iran.
·Lack of social networks in Iran in order to re-establish himself there including;
i.Finding employment.
ii.Obtaining housing/shelter.
iii.Accessing healthcare.
·Non-refoulement obligations arising from the Act, in particular s 36(2)(aa).
·Non-refoulement obligations arising on account of Australia’s status as a signatory to International Covenants addressed below.
177. In his testimony to the Tribunal the applicant said he is working as an [occupation 2]. He said he had worked for most of the time he had been in Australia including in [specified occupations].
178. Medical evidence about the applicant’s medical conditions is limited.
179. In his evidence to the Tribunal the applicant did complain of low back pain but did not claim to be dependent on Centrelink to survive. He said he had only been on Centrelink for a few months. He said he had been on Centrelink in 2017 after a [business 1] he had been involved with had failed. He said there were other times he had received Centrelink, but he could not remember how often or for how long.
180. He said he has usually worked as set out above.
181. The Tribunal accepts that the applicant has had back pain and suffers back pain from time to time. There is no evidence that it has required treatment other than a CT guided injection in 2016.
182. The Tribunal does not accept that the applicant suffers from disabling back pain or that he is reliant on Centrelink to sustain himself.
183. There is no current evidence of any debts owed by the applicant in Australia.
184. Overall, given the applicant does not face removal from Australia, the factors that have been addressed in his declaration and submissions are generally irrelevant.
185. The Tribunal accords this consideration little weight against cancelling the applicant’s visa.
The subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act.
186. The applicant’s submissions concede that, in the event the applicant is found to be an Iranian citizen, the applicant will be taken to have continued his non-compliance with s 101(b)[18]. The submissions suggest that this consideration should be given little weight.
[18] Submissions of 28 July 2017, last paragraph on pge. 4
187. Since those submissions were made the applicant has admitted that he did not comply with his obligation to provide the correct information.
188. In the August 2024 Declaration, at paragraph 25 the applicant claims he ‘…always had a guilty conscience and wanted to tell the truth to the Australian Government.’
189. He says he did tell the truth in 2015 but that he withdrew that due to ‘…further incorrect advice, depression, nervousness, fear of visa cancellation and fear of being returned to the immigration camp and Iran…’.
190. He says he ‘…could not make the right decision and tell the truth…’.
191. The applicant does not offer any corroboration of the incorrect advice he received or of the effect of depression or the timing of the onset of depression. It is not evident why he could not tell the truth.
192. His ultimate admission was made very late and after many years. It comes after his Protection Visa had already been cancelled.
193. The Tribunal regards the applicant’s continuation of his non-compliance and his maintenance of that non-compliance in multiple signed and sworn documents provided to the department and the Tribunal as weighing in favour of cancelling the visa and accords this consideration significant weight.
The time elapsed since the non-compliance
194. The submissions note that the first non-compliance took place on 27 September 2010 when the applicant applied for a protection visa. The submissions say that the non-compliance should be given little or no weight against cancelling the visa.
195. The Tribunal notes that the non-compliance was effectively maintained until a few days before the hearing and was lengthy, extending over many years. There was a relatively short period during which the applicant withdrew the incorrect information, but he then specifically resumed it and asserted that it founded an entitlement to stay in Australia.
196. This is not a case of a single instance of non-compliance followed by an extended period during which there was no non-compliance, which might count against cancellation of the visa.
197. The Tribunal is satisfied the time elapsed since the non-compliance weighs in favour of cancellation of the visa and accords it a little weight.
Any breaches of the law since the non-compliance and the seriousness of those breaches.
198. There is no evidence of criminal charges or convictions since the non-compliance. The Tribunal accords this consideration no weight in favour of the visa being cancelled.
Any contribution made by the holder to the community
199. The applicant’s submissions of 2017 promote his employment as [an occupation 1] at [a named employer], the tax he paid when in employment, and his participation in the Vocational Education sector as relevant contributions to the community.
200. The Tribunal is not satisfied that these considerations should be accorded significant weight. The applicant’s work as [an occupation 1] weighs somewhat in his favour. The amount of tax paid by the applicant has not been calculated and the applicant’s participation in the Vocational Education sector was as a student and apparently for self-improvement, although it may have contributed to his ability to work and if he paid to study that may have contributed to the Vocational Education industry.
201. The Tribunal has regard to the various testimonials and notes the applicant has been engaged with Kurdish and Iranian community groups.
202. The Tribunal has considered the submissions made by the applicant and accords this consideration some weight against cancelling the visa.
Other considerations
203. The Tribunal is directed by Ministerial policy to consider certain other matters, whether or not they are raised by the visa holder in response to a notice under s 107[19].
[19] Policy- Migration Act-Visa cancellation instructions – General visa cancellation powers (s109 etc) s 109-Deciding whether to cancel- Matters that should be taken into account.
Consequential cancellations
204. The Tribunal is directed to consider whether there are persons in Australia whose visas would or may be cancelled under s 140 as a consequence of the cancellation of the applicant’s visa. There is no evidence that this consideration is relevant.
Relevant interests of any children
205. The applicant does not address this consideration in submissions and has not provided evidence that there are any children whose interests would be affected by cancellation of his visa.
206. The Tribunal finds this consideration is not relevant and accords it no weight.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
207. The Tribunal is satisfied the cancellation would not lead to the applicant’s removal and accords this consideration no weight against cancellation of the applicant’s visa.
CONCLUSIONS
208. The Tribunal has decided that there was relevant non compliance by the applicant and that the s 107 notice was valid.
209. Although the bulk of the applicant’s evidence and submissions address the perceived negative effect on him of being removed to Iran or being subjected to indefinite detention, the Tribunal is satisfied that he does not face either.
210. The Tribunal has considered the evidence provided by the applicant and weighed the various considerations as set out in these reasons.
211. There are considerations that weigh against cancellation of the applicant visa, but the Tribunal views his non compliance, and the maintenance and repletion of the non compliance, together with its finding that his non compliance was central to him obtaining the visa in the first place as weighing heavily in favour of cancelling the applicant’s visa.
212. Having considered the prescribed factors and the other factors the Tribunal finds that the applicant’s visa should be cancelled.
DECISION
213. The Tribunal affirms the decision under review.
Date(s) of hearing : 22 August 2024
Representative for the Applicant: Mrs Roya Majd (MARN: 0701239)
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