BYF20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 1388
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1388
File number(s): SYG 1069 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 28 August 2025 Catchwords: MIGRATION – where the applicant granted a protection visa – where visa was subsequently cancelled pursuant to s 109 on basis of non-compliance with s 101 – where decision affirmed by the Tribunal - whether the Tribunal erred by failing to give proper consideration to the best interests of the Applicant’s children – where one of the children was an Australian citizen - the Tribunal failed to properly consider the best interests of the children – writs of certiorari and mandamus issued Legislation: Migration Act 1958 (Cth) ss 101, 107, 109(1), 140(1), 376, 499, 501
Migration Regulations (Cth) r 2.41
Cases cited: BXY20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 543
CGA15 v Minister for Immigration [2019] FCAFC 46; 268 FCR 362
DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184
Kolora v Minister for Immigration [2023] FCA 1583
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR; [2024] HCA 12
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
RGCZ v Minister for Immigration [2022] FCAFC 201
Vaitaiki v Minister for Immigration and Ethnic Affairs[1998] FCA 5; 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs[2001] FCA 568; 107 FCR 133
Division: Division 2 General Federal Law Number of paragraphs: 113 Date of hearing: 5 August 2025 Place: Parramatta Counsel for the Applicants: Mr O Jones Solicitor for the Applicants: Nikjoo Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1069 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYF20
First Applicant
BYH20
Second Applicant
BYI20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 6 April 2020.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
By application filed on 4 May 2020, and amended on 4 July 2025, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 6 April 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) to cancel the first named applicant’s (the applicant) protection visa (Subclass 866) (the visa) under s 109(1) of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant came to Australia as an unauthorised arrival on 16 April 2010, claiming to be an undocumented, stateless Faili Kurd born in Iraq. He came to Australia with his wife and children, being the second and third applicants in this matter. The applicants were granted protection visas on 13 April 2011.
On 28 April 2015, the applicant and his wife submitted separate applications to obtain Australian citizenships by conferral. On 28 November 2016, they attended separate identity interviews. Following this, the applicant submitted a ‘shenasnameh’ (Iranian national identity card) to the Department confirming he is an Iranian citizen by birth and that he had maintained his citizenship at the time he lodged his protection visa.
On 4 February 2019, the delegate provided the applicant with a Notice of Intention to Consider Cancellation (NOICC). On 27 February 2019, the applicant responded to the NOICC with a statutory declaration drafted with the assistance of a migration agent.
On 3 May 2019, the delegate made a decision to cancel the applicant’s visa under s 109 of the Act. The cancellation of the applicant’s visa led to the consequential cancellation of the second and third applicants’ visas under s 140(1) of the Act.
On 21 May 2019, the applicants lodged an application with the Tribunal for review of the delegate’s decision.
On 7 February 2020, the applicants were invited to appear before the Tribunal on 4 March 2020. On 2 March 2020, the Tribunal postponed the hearing and advised the applicants to submit written submissions by 4 March 2020. On 3 March 2020, the applicants were invited to a hearing on 11 March 2020.
On 5 March 2020, submissions and documents in support of the review were provided to the Tribunal.
The applicants attended the hearing and were assisted by an interpreter. The applicant’s wife, whose visa was the subject of a separate cancellation decision by the delegate, also attended the hearing.
On 6 April 2020, the Tribunal affirmed the decision to cancel the applicant’s visa. The Tribunal found that it had no jurisdiction with respect to the second and third applicants.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the ground of cancellation, being that the applicant had provided incorrect information on his protection visa application, was made out and, if so, whether the visa should be cancelled. The Tribunal noted that the application for review solely concerned the first named applicant’s visa as the other applicants’ visas were cancelled by operation of s 140(1) of the Act.
The Tribunal summarised the Minister’s cancellation powers under s 109(1), as being a condition of a valid NOICC issued under s 107 of the Act. Subsequently, the Tribunal summarised the claims and evidence before it. The Tribunal extracted the applicant’s responses in Form 866 Part C and those provided in the statutory declaration dated 29 June 2010. The applicant’s claim was predominantly that he was a Faili Kurd born in Iraq, he was stateless, and would be persecuted on the basis of his ethnicity if he were to return to Iran and would be arrested for leaving illegally: [11]–[22]. Based on these claims, the applicant was granted the protection visa on 13 April 2011.
The Tribunal, at [25] and [26], summarised the adverse information that came before the Department when the applicant and his wife applied for Australian citizenship on 28 April 2015. Relevantly, the applicant said he and his wife were both born in Iran as Iranian citizens of Faili Kurdish ethnicity and that they left Iran with Iranian passports but were told to claim they were born in Iraq on their arrival on Christmas Island. He also provided scanned copies of their Iranian birth certificates and national identity cards, corroborating their status as Iranian citizens by birth.
The Tribunal also summarised the documents before it, including but not limited to, information provided by the applicant in his statutory declaration provided on 27 February 2019, where the applicant admitted to the adverse information and conceded that the decision to grant him the visa was ‘substantially based on incorrect information’. The applicant claimed that he was influenced by the wrong advice given to him by other Iranian asylum seekers while they were detained on Christmas Island. Additionally, the Tribunal referenced the constitution of Iran, country information for Iran and the civil code of the Islamic Republic of Iran.
Discussion at the hearing
The Tribunal, at [34]–[61], summarised its discussion with the applicant and his wife at the hearing.
The Tribunal informed the applicant of the relevant information they had been given on Form 866 C which was later found to be incorrect, and what the correct information was regarding their names, dates of birth and real citizenship status. The Tribunal summarised the adverse information regarding the applicants’ identities and the reasons provided by the applicant and his wife regarding why they did not provide information pertaining to their true identities until the interview on 28 November 2016.
The Tribunal noted that the applicant and his wife had never worked, both claiming pensions by the government, as the applicant was a carer for his wife who was a pensioner due to back and knee problems. The Tribunal put to the applicant that these pensions were granted based on false information.
The Tribunal noted that the aside from a speeding fine in a school zone the applicant had not breached the law. The Tribunal also noted that the applicant did not contribute to the wider Australian community, instead focussing on taking care of his wife and children.
The Tribunal recorded the applicant’s reasons for changing their names and dates of birth as opposed to merely claiming they were undocumented Faili Kurds. The applicant claimed he received advice on Christmas Island which they did not check with their Australian legal representatives who spoke with them for an hour or two.
The Tribunal queried why the applicant waited until February 2020 to mention his prior seven-year prison term in Iran for supplying someone with a gun. He claimed to have mentioned it to an earlier lawyer. The applicant was advised that the ITOA concluded that there was no impediment for their return to Iran. The applicant claimed, among other things, that he had sold a gun that he didn't own and went to open court that was shown on TV. He claimed he was recognised in Iran, didn’t have any safety or financial help. He claimed that his case and name would have been reported in the newspapers.
The applicant claimed one of his children would be separated from them because she was an Australian citizen. The Tribunal put to the applicant and his wife that the child would also be an Iranian citizen, and they would not be separated. The applicant’s wife said the child had no Iranian documentation and had lots of medical issues. It was put to her that the doctor's letter was brief and did not mention medical support being unavailable in Iran.
The applicant claimed that due to sanctions, there was no medication in Iran, the coronavirus had made the situation worse, and their daughter had to see a doctor every six months for her heart condition. The Tribunal put country information to the applicant and his wife which indicated there was paediatric heart care available in Iran, that coronavirus would be temporary and the shortage of medicines was confined to a limited range and there was a new arrangement recently arrived at with the Swiss to allow humanitarian imports.
The Tribunal asked the applicant about his Iranian passport. He claimed that he needed the new passport to get information from Interpol, and he showed his visa cancellation to get it. The applicant’s wife claimed it was easy to get a passport, but Iranian authorities would give them a hard time on arrival. The Tribunal put to them that the country information indicated otherwise; Iranian authorities were not interested in people without profiles who returned to Iran.
The applicant stated that foreign nationals were detained and put into prison, and this would be worse for him as he had problems before, and he would be detained and tortured.
The Tribunal noted the applicant’s claims that due to health issues, the sanctioned regime and his previous prison sentence, he would not be able to provide for his family. The applicant claimed that things were available, but they were expensive. It was put to him that it was difficult to give his healthcare claim much weight given he had previously falsely made a healthcare-related claim that was fabricated.
The applicant claimed that life was hard for the poor, there was no healthcare system such as Medicare and the children couldn't go to school if one was poor and that it was worse for Faili Kurds. It was put to the applicant that country information indicated that Kurds may face some societal discrimination, but it would not amount to persecution.
The representative submitted that the children being raised in Australia was a contribution to Australia, that the youngest child (an Australian citizen, with health issues) would have better life opportunities and healthcare in Australia.
Tribunal’s findings
Overall, the Tribunal found the applicant lacked credibility as a witness. It found that he knowingly provided false information regarding his name, date of birth and citizenship status to be granted a protection visa and that he continued with this fabrication until November 2016. The Tribunal did not accept that he did this because he was advised to do so by other Iranian detainees on Christmas Island or that he wanted to tell the truth but was just looking for an opportunity, which came during the identity interview in November 2016.
The Tribunal also did not accept that he approached an interpreter on Christmas Island and told him after their interview that they had made a mistake and wanted to go back and say they were Iranian, and that the interpreter told them this would have no effect.
The Tribunal did not accept that the applicant chose to lie because he was uneducated, as this relied on a previous claim that he was denied schooling because he was not an Iranian citizen. The Tribunal found that regardless of his level of education he knew that he was giving a fabricated account and that there was a personal advantage for doing so.
The Tribunal also found that because neither he nor his family were stateless Faili Kurds born in Iraq, the claims in his statutory declaration were also fabricated. These claims included that he was denied an education, his wife received poor treatment after a car accident and they were denied compensation, and he was accused of drinking alcohol and denied a blood test before being sentenced and lashed by a court.
The Tribunal did not accept the applicant’s claims that 27 years ago he had sold a gun to a person who subsequently got into a gunfight with the Basij and Pasdaran, that the authorities found out and he was convicted of this in 1995 in a trial that was broadcast live on national TV, or that he was in prison. The Tribunal did not lend much weight to the evidence provided in support of these claims.
For these reasons, the Tribunal found that there was non-compliance with s 101 by the applicant because he provided incorrect answers to the relevant questions in Form 866 C referred to in the s 107 notice.
The Tribunal subsequently considered whether the visa should be cancelled pursuant to s 109(1), which the Tribunal noted was a discretionary power under s 109(2). In doing so, the Tribunal set out the prescribed circumstances for consideration under r 2.41 of the Regulations.
The correct information
The Tribunal noted that at the time of lodging the application for a protection visa, the visa-holder was not, and never had been a stateless Faili Kurd and he was and always had been an Iranian citizen known as Mr Bazyar. The Tribunal gave significant weight to the incorrect information provided by the applicant in his protection application.
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 Tribunal was satisfied that the decision to grant the visa-holder a protection visa was based on findings that there was a real chance that the visa-holder would suffer serious harm because he was a stateless Faili Kurd who had been targeted by the Basij and because he had left illegally, could not work legally and his children did not have the right to go to school.
The Tribunal found that the applicant was not, and never had been, stateless, being an Iranian citizen and was able to work, enter and re-enter Iran legally. The Tribunal also found he and his family would have access to the Iranian health and education systems. The Tribunal therefore found that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.
The circumstances in which the non-compliance occurred
The Tribunal did not accept the false claims made by the applicant were the result of any suggestion on the part of someone else, but that he willingly and knowingly provided this false information.
The present circumstances of the visa holder
The Tribunal noted that the applicant had his wife and children with him in Australia, one of whom was born in Australia. That child is an Australian citizen and, by virtue of Iranian citizenship laws and her parent's citizenship status she is also an Iranian citizen. The Tribunal referenced a medical certificate which indicated that the Australian citizen child has a congenital heart condition and had liver surgery in 2015.
Whilst the Tribunal accepted that there are unilateral US sanctions in place against Iran, it was not satisfied that the child would be unable to get appropriate care there. The Tribunal considered country information which indicated that there was a comprehensive healthcare system in Iran, including paediatric coronary care and a charitable health scheme for the uninsured poor. The Tribunal noted that since the child only needed to see a specialist annually it considered that her medical situation was stable. The Tribunal considered that no compelling evidence was before it to indicate that her medical condition was such that she would suffer serious harm if the family returned to their native Iran.
The Tribunal referred to a letter provided post-hearing from the child’s GP but lent it little weight. The letter stated that the child required close supervision by Westmead Children's Hospital, but the Tribunal found this contradicted the fact she only needed an annual checkup. The Tribunal also noted that the letter made no reference to the health system in Iran or why there was any reason it could not be accessed or be unable to address the child's condition.
The Tribunal noted that the applicant’s wife had several siblings in Iran and was satisfied that the applicants could all enter and reside in Iran as citizens of that country, and there was family support available to them there.
The Tribunal considered the medical evidence before it in relation to the applicant’s wife and found that none of her conditions were life-threatening or that her ailments could not be treated in Iran. The Tribunal noted that she was on a pension in Australia, but it found that her family in Iran could assist if required, they would have access to the Iranian medical system and the applicant could seek employment commensurate with his qualifications, training and experience.
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 Tribunal gave little weight to the applicant’s ‘belated truthfulness’ as it considered that it was due to his realisation that the Department had worked out that they were not stateless due to the documentation provided by his extended family members after they arrived in Australia.
Any other instances of non-compliance by the visa holder known to the Minister
There was no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gave this consideration some weight in favour of the applicant.
The time that has elapsed since the non-compliance
The Tribunal found that the seriousness of the deception did not outweigh the elapsed time since the non-compliance, even though it had been a decade. The Tribunal reasoned that the fabricated claims allowed the family access to benefits that would not have otherwise been available to them had he been truthful.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant had a speeding fine in a school zone but had no other breaches of law. The Tribunal gave the lack of breaches of law some weight in favour of the applicant.
Any contribution made by the holder to the community.
The Tribunal found there was no evidence that the applicant had made any significant contribution to the broader community. He had not worked since being in Australia, was in receipt of social welfare, and the Tribunal did not consider that raising one's own family was of itself a contribution to the broader community.
Other considerations
The Tribunal noted that the above factors should not be taken as an exhaustive list of considerations and noted that it had regard to the policy 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.
The Tribunal outlined the likely consequences of a cancellation decision to be as follows:
•He would become an unlawful non-citizen and liable to be detained and removed from Australia;
•He would be limited in the types of visas he could apply for; and
•It is possible that two of his children's visas will be cancelled under s 140 of the Act. I also note that another child is an Australian citizen and, if this was the consequence of the government's acceptance of the visa-holder's protection claim which was subsequently found to have been fabricated, then it is possible that the appropriateness of this citizenship may also be re-examined.
The Tribunal considered the above consequences to be reasonable given these administrative sanctions were the consequence of the applicant obtaining a protection visa by providing false information. The Tribunal therefore gave little weight to the consequences of the visa cancellation decision.
The Tribunal also noted that the applicant could avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia.
The Tribunal did not accept that the applicant had been jailed in Iran, or that he and his family were denied access to a range of services or employment opportunities because they were stateless or that there is a real chance that he or the family would face serious harm on return to Iraq.
The Tribunal also noted that while an International Treaties Obligation Assessment (ITOA) had not yet been completed, it did not accept, based on the information before it, that there is a real chance that the visa-holder would be persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal also had regard to the Conventions on the Rights of the Child and did not accept that the visa cancellation and subsequent return of either the applicant or his children to Iran would breach any of Australia's non-refoulement obligations. The Tribunal considered that the children (including the Australian citizen) would have access to Iranian passports, the family could return to Iran as the one family unit, and the children would be able to integrate back into Iranian society due to their young age.
The Tribunal also had regard to the DFAT Country Information Report - Iran and the DFAT Thematic Report - Faili Kurds in Iraq and Iran. While the Tribunal accepted that the Iranian economy was in difficult circumstances due to the US sanctions regime on the country, the Tribunal was satisfied that the applicant would be able to subsist given he would have the support of extended family in Iran and he would be able to work in an area commensurate with his training, education and experience.
The Tribunal found that while their removal to Iran would represent a major disruption to the family, the applicant would never have been granted a protection visa in the first place if he had not lied about his identity, citizenship and alleged harm in Iran. The Tribunal found that given the gravity of the applicant’s actions and, having regard to the prescribed circumstances in r 2.41 and the policy considerations, the Tribunal determined that the applicant’s visa should be cancelled.
APPLICATION TO THIS COURT
The originating application was filed on 4 May 2020. An amended application was filed on 12 April 2021, and a further amended application was filed on 4 July 2025.
The Court Book filed by the Minister was tendered at the hearing and marked Exhibit CB.
The applicant filed written submissions on 4 July 2025, and the Minister filed written submissions on 22 July 2025.
The parties appeared at the hearing before me on 5 August 2025 at the Parramatta Registry of the Court. The applicants were represented by Mr O Jones of Counsel. The Minister was represented by Mr T Reilly of Counsel.
At the hearing, the applicant informed me that the related judicial review application for the wife had been dismissed: BXY20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 543 (BXY20).
The applicant submitted there were substantial differences between the reasoning of the Tribunal in BXY20 and the present case, and that the ground of review (failure to properly consider the best interests of the children) was factual and contextual and, given the variation from one case to another, the conclusions of BXY20 did not attract a duty of comity or bind the court. The Minister submitted that while the language of the Tribunal in BXY20 was not identical to the present case, the same Tribunal member considered the same issues concerning the same children and the same ground was advanced on judicial review and was dismissed. The Minister submitted that BXY20 was not clearly wrong and should be followed as a matter of comity.
Judicial comity encourages consistency and promotes adherence to prior decisions made by judges of the Court. I accept, as submitted by the Minister, that the same Tribunal member considered the same issues concerning the same children and the same ground was advanced on judicial review in both cases. There are, however, two distinguishing factors between the two matters. First, the decisions were not identical and there were several differences in the reasoning of the Tribunal when considering matters relevant to the best interests of the children. Second, the ground of judicial review in the present case was argued differently in oral submissions, as discussed further below, with further particulars provided in support of the ground advanced, also discussed below.
GROUNDS OF REVIEW
The further amended application advanced the following ground of review (without alteration):
1. The Second Respondent (Tribunal) made a jurisdictional error by failing to give proper consideration to, or being legally unreasonable with respect to, the best interests of the Applicant’s children.
a. The Tribunal was obliged to give proper consideration to the best interests of the Applicant’s children as the Applicant had expressly raised those interests, including by reference to the Convention on the Rights of the Child: Kolora v Minister for Immigration [2023] FCA 1583 at [123]-[128];
b. The Tribunal may fail to give such consideration where it does not have regard to the best interests of the children for and against cancellation of the visa and instead approaches those interests through the prism of cancellation of the visa: RGCZ v Minister for Immigration [2022] FCAFC 201 at [38], [44];
c. The Tribunal may make a jurisdictional error by engaging in illogical or irrational reasoning in a manner material to the ultimate decision: CGA15 v Minister for Immigration [2019] FCAFC 46; 268 FCR 362 at [51];
d. The Tribunal at paragraph 105 of its decision failed to give proper consideration to the best interests of the children. It approached the best interests on the basis that the family unit should remain together by returning to Iran instead of asking whether those interests indicated that the family unit should remain in Australia;
e. The Tribunal failed to consider the particular interests of one of the children who was an Australian citizen: RGCZ v Minister for Immigration [2022] FCAFC 201 at [54].
By ground one, the applicant contends that the Tribunal failed to properly consider the best interests of the children, which was a matter expressly raised by him, and is relevant to the Tribunal’s consideration (as part of its statutory function) of the exercise of the discretion.
The applicant relied upon Kolora v Minister for Immigration [2023] FCA 1583 (Kolora) at [123]–[128],[140], and the case cited therein (Plaintiff M1/2021v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [24], [25] and [27]), in support of the submission that the Tribunal was obliged to intellectually engage with (or give proper, genuine and realistic consideration to) the best interests of the children and that a failure to do so would amount to a jurisdictional error.
The applicant also relied upon DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 (DXQ16) and Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 (Promsopa), which were also referred to in Kolora at [78]–[82] and [83]–[89], respectively. Both DXQ16 and Promsopa concerned cancellation of a permanent visa under s 109 of the Act and involved consideration of the best interests of the child (or children) which were raised by the appellants in these cases for the favourable exercise of the discretion.
In written submissions, the applicant had also placed reliance upon RGCZ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 295 FCR 365; [2022] FCAFC 201 (RGCZ). Whilst acknowledging that the obligation to consider the best interests of the children in RGCZ arose in a different statutory context; that being, by Ministerial Direction under s 499 in respect of a visa refusal under s 501 of the Act, it was contended that the obligation to properly consider the best interests of the children was relevant even if the basis of the underlying duty of that consideration differed: RGCZ at [41].
It was further contended, also by reliance on RGCZ, that the Tribunal erred by considering the interests of the children ‘through the prism of what the appellant would do if the visa was refused’, rather than by reference to whether cancellation of applicant’s visa would, or would not be, in the best interest of the children: RGCZ at [44]. The error is said to have occurred at [105] of the Tribunal’s reasons where, as contended, it premised its discussion upon the family unit remaining together by returning to Iran. It was also contended that the Tribunal’s approach in appraising the best interests of the children at [105] of its reasons could also be characterised as one of illogicality.
It was also contended that the Tribunal had erred by its failure to give individual consideration to the differing interests of the children, and particularly the Australian citizen child whose interests would be affected differently by the cancellation/non-cancellation of the applicant’s visa: RGCZ at [54].
In oral submissions, counsel for the applicants resiled somewhat from reliance on RGCZ, which he explained was in view of the reasoning in BXY20, wherein Judge Zipser distinguished RGCZ on the basis that the statutory context was ‘significantly different’: BXY20 at [43]–[48]. Counsel, nevertheless, sought to broadly rely upon on the Full Court’s reasoning that the best interests of the children cannot be assessed by reference to only one particular exercise of the discretion: that being, cancellation of the applicant’s visa and the whole family returning to Iran. It was also contended that the Tribunal failed to properly consider and weigh the best interests of the children, including the best interests of the Australian citizen child.
I asked counsel for the applicants whether the applicant was also contending that the best interests of his children were not considered by the Tribunal as a primary consideration. Counsel said the issue of the best interests of the children (by reference to the CROC) was raised with the Tribunal and that the principal complaint is that the Tribunal had not properly considered the children’s best interests. It was submitted that while want of consideration of the children’s interests as a primary consideration would only serve to strengthen the applicant’s case, as this would have required the Tribunal to assess and weigh the prospect of the children remaining in Australia, the applicant did not seek to press this point. It was contended that, in either case (as required by the Convention or otherwise), the Tribunal had failed to properly consider the best interests of the children.
The Minister’s position is that the Tribunal considered, as a matter of policy, whether any international obligation would be breached, including those in the CROC, which in turn required the best interests of the children to be considered as a primary consideration. It was contended that on a fair reading of the Tribunal’s reasons at [104] and [105], the Tribunal considered the children’s best interests and concluded that Australian’s international obligations would not be breached as a result of the cancellation because the family unit would be maintained.
It was contended that no analogy can be drawn with cases such as RGCZ which involve cancellation under s 501 and are governed by a ministerial direction that gives detailed instructions as to the best interests of the children.
It was submitted that this was not a case where the Tribunal did not treat the children’s interests as primary consideration and that it could be inferred from the Tribunal’s reasons that it had regard to the best interests of the children, including the Australian citizen child, but concluded, as required by the policy, that cancellation of the applicant’s visa would not result in a breach of international obligations.
Consideration
Section 109(1) of the Act provides for the Minister to cancel a non-citizen’s visa if, relevantly, that person has failed to comply with their obligation under s 101 of the Act to complete his or her application form in such a way that no incorrect answers are given or provided: s 101(b).
To exercise the power under s 109, the Minister must provide the visa holder with a notice under s 107 of the Act (the NOICC), which sets out the particulars of the possible non-compliance.
Section 108 requires the Minister to consider any response provided by the visa holder and decide whether there had been non-compliance as described in the NOICC.
In this case, the Tribunal found at [72] that there was non-compliance by the applicant as described in the NOICC and went on to consider whether the visa should be cancelled.
As part of its consideration, the Tribunal said at [98] that in addition to the matters it must consider, as prescribed by reg 2.41, it may also have regard to departmental policy, which relevantly includes consideration of Australia’s international obligations and whether they would be breached as a result of the visa cancellation.
The Tribunal said at [104] that it had regard to the CROC and was not satisfied that the cancellation and the subsequent return of the applicant or the children to Iran ‘would breach any of Australia’s non-refoulment obligations’. There does not appear to be any express finding by the Tribunal that cancellation of the applicant’s visa would not be in breach of Australia’s obligations under the CROC, though this can be inferred from its reasons at [105] where it finds that the children could return to Iran as one family unit: see Articles 9 and 10 of the CROC.
I will return to discuss the Tribunal’s findings and reasons as to its consideration of the best interests of the children. Before I do this, however, I make the following remarks about the development of the applicants’ submissions at the hearing before me, which counsel for the applicants explained was in view of the findings made by Judge Zipser in BXY20.
While the ground of review advanced by the applicant’s wife in BXY20 was the same as that advanced in the present case, there was ‘heavy reliance’ in her case on RGCZ: see BXY20 at [42]. The submissions advanced in BXY20 sought to draw direct parallels between the Tribunal’s approach in RCGZ when considering the best interests of the children (which was found to be in error) with the approach of the Tribunal in BXY20.
Judge Zipser was correct in observing the different statutory context in which the best interests of the children were to be considered in RGCZ, noting that the Tribunal in that case was mandated by paragraphs 8.3(1) of Ministerial Direction 90 to consider whether refusal of the visa under s 501 was or was not in the best interests of the children affected by the decision. It was also in that statutory context, as his Honour observed, that the Tribunal in RGCZ was required to have regard to the differential interests of each child, which in that case were ‘stark’: BXY20 at [45]. Judge Zipser found that, by contrast, the Tribunal in BXY20 was required to consider, (in context of the departmental policy which obliged decision makers to treat as a primary consideration the best interests of the children), whether cancellation of the applicant’s visa would indicate a breach of the CROC: BXY20 at [46] and [47]. I agree with his Honour in that regard.
While RGCZ is not directly concerned with the specific legal or factual issues in the present matter, I acknowledge counsel for the applicants’ submission that the Full Court authority contains observations and principles which are broadly relevant to the consideration of the best interests of the children. Even so, as recognised by counsel, there exist other authorities that more closely align with the factual and legal context of the present matter which more appropriately support the propositions advanced by the applicant, such as Promsopa and DXQ16.
As the applicant is no longer invoking reliance (of any substance) on RGCZ, what remains for determination is whether the Tribunal failed to properly consider the best interests of the children when assessing whether cancellation of the applicant’s visa would or may result in a breach of Australia’s international obligations.
As to whether the best interests of the children were treated by the Tribunal as a primary consideration, as contended by the Minister, the applicant did not seek to advance this as a separate or necessary aspect of their ground of review. Whilst indicating that consideration of the children’s interests as a ‘primary consideration’ would bolster their position, the applicant declined to press this, instead preferring to rely solely on the ground, as formulated, that the Tribunal simply failed to give proper consideration to the best interests of the children which were expressly raised by the applicant.
For reasons that follow, I am satisfied that the ground of review has been made out.
Before the Tribunal, the applicant advanced various claims and provided evidence in support of why his visa should not be cancelled. Relevantly, this included claims and evidence relevant to the best interests of his children. At the time of the Tribunal’s decision, the applicant’s eldest children (twins); a daughter and a son, were 10 years of age. His youngest daughter, who was born in Australia and is an Australian citizen, was six years old. The claims made in respect of the children included the following at (CB 292–293):
·The twins came to Australia when they were nine months old, they don’t know any country or culture other than Australia.
·The youngest child has current and future medical needs which are a paramount consideration in exercising the discretion.
·The youngest child is an Australian citizen and is entitled to the level of care, education and lifestyle that her citizenship provides her.
·If the children had to return to Iran they would suffer from language and cultural barriers, as well as financial and educational disadvantage, and would have difficulty assimilating to Iranian society.
·If the youngest Australian citizen child, who has a medical condition, is left behind in Australia no one would care for her, and this would breach Australia’s international obligation under the CROC.
Claims were also made that the children would face significant discrimination in Iran because of their Kurdish ethnicity: CB 227.
A medical certificate for the youngest child was provided indicating that she has a congenital heart condition and had major liver surgery five years prior. It indicated that the child is under the care of a cardiologist and is regularly monitored for her heart condition: CB 296.
Also provided, was a hand-written letter from the applicant’s son in which he provided details about growing up in Australia, his love of school and academic achievements in literacy, the friendships he made and his future aspirations: CB 301–303.
The Tribunal’s decision notes the discussions it had with the applicant and his wife at the hearing regarding the children. It records at [51] and [52] that the applicant and his wife gave evidence that their youngest daughter would be separated from them because she was an Australian citizen. It also notes the evidence given by the applicant’s wife that the youngest daughter has a heart condition, that she initially had to see a doctor every six months, that she had improved and the check-ups became yearly, but that she may require another operation when she gets older.
The Tribunal was obliged, as part of its discretionary assessment, to have regard to the claims and evidence advanced in respect of the best interests of the children. Whilst the assessment (and weighing) of the claims and evidence was entirely a matter for the Tribunal, it was nevertheless required to ‘read, identify, understand and evaluate’ the representations made by the applicant: Plaintiff M1/2021 at [24]–[25].
Further, if the Tribunal’s reasons disclose that it ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error: Plaintiff M1/2021 at [27].
In the context of a visa cancellation under s 109 of the Act, Allsop CJ in Promsopa said at [54]:
The Full Federal Court decisions of Vaitaiki v Minister for Immigration and Ethnic Affairs[1998] FCA 5; 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs[2001] FCA 568; 107 FCR 133 provide guidance on how a Tribunal is to give proper, genuine and realistic consideration to the best interests of children affected by the decision. In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan at [26]. The Full Court at [30] set out elements of the best interests of the children which had not been elucidated by the Tribunal: that the children as citizens of Australia would be deprived of the country of their own and their mother’s citizenship and “of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle”, citing Vaitaiki at 614; the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; the loss of educational opportunities available to the children in Australia; and their resultant isolation from the normal contacts of children with their mother and mother’s family.
Although Wan and Vaitaiki concerned visa cancellation under s 501 of the Act, the obligation to consider the best interests of the children in these cases arose from Australia’s obligations under the CROC and the decision of the High Court in Teoh, and were considered by Allsop CJ as instructive precedents on the Tribunal’s obligation to give proper, genuine and realistic consideration to the best interests of children affected by the decision: Promsopa at [54].
Allsop CJ found that the Tribunal’s failure to consider the child staying in Australia without her mother (and the associated disruption to her life) was relevant and central to the consideration of the child’s best interest: Promsopa at [58]. His Honour also considered that the Tribunal took a ‘one dimensional approach’ to the best interests of the child, focusing entirely on the child’s father being in Australia on a temporary visa, without having proper regard to the detriment to the child by a decision to cancel her mother’s visa: Promsopa at [58].
Allsop CJ referenced Burchett J in Vaitaiki that the Tribunal was required to take into account the best interests of children ‘at least as very significant matters’ (Promsopa at [66]) and Branson J in Vaitaiki that the proper focus of the Tribunal must be to identify the result that, in all the circumstances, would overall be ‘conducive to the best interests of the child’: Promsopa at [67].
Allsop CJ also agreed with Steward J's conclusions in DXQ16, which found Teoh applicable to s 109 decisions, and considered that the Tribunal was bound, as a matter of procedural fairness, to consider the best interests of the children: Promsopa at [70]–[71].
In DXQ16, Steward J accepted the Minister’s submission that the Tribunal ‘took into account’ the children’s best interests, however, his Honour found that the reasons of the Tribunal did not expressly make clear, nor could it be inferred, that the Tribunal ‘evaluated’ the best interests of the children and weighed them against any other factor.
In the present case, the Tribunal said at [104] and [105] that it had regard to the CROC, but it considered that the children (including the Australian citizen child) could return to Iran as one family unit. It acknowledged that the children attended primary school, but considered they were young and would be able to ‘integrate back into Iranian society’.
There was simply no meaningful engagement by the Tribunal with key aspects of the submissions made concerning the impact on the children of a decision to cancel the applicant’s visa. No consideration was given to the submission that the children, who had spent their formative years in Australia, or in the case of the youngest child who was born in Australia, would experience difficulties adjusting to an unfamiliar environment, would be disadvantaged because of language and cultural barriers, would face discrimination because of their ethnicity and the loss of their friends and community in Australia. There was also no consideration of the matters raised by the applicant’s son in his hand-written letter and how the decision may impact him and his future aspirations.
The Tribunal’s approach, when considering the interests of the children, appears to focus solely on what the children would do if the applicant’s visa remained cancelled, without giving any proper and genuine consideration to the submissions advanced as to why the best interests of the children would be served by their father’s visa not being cancelled. This ‘one-dimensional’ approach discloses error on the part of the Tribunal.
In relation to the Australian citizen child, submissions were made by reference to her interests which were not properly considered by the Tribunal. The Tribunal acknowledged at [84] that the youngest daughter had a congenital heart condition and had liver surgery, and considered, based on country information before it, that there was paediatric coronary care available in Iran and that she would not suffer serious harm if the family returned to Iran. This finding (and the findings in [104] and [105]) were made on the assumption that the whole family could return to Iran. However, there was no consideration of the submission (at CB 293) and the evidence given at the hearing (at [51]) that the youngest daughter would be left behind in Australia and the family unit would be separated.
Whilst the Tribunal put to the applicant at the hearing that their youngest daughter would also be an Iranian citizen and they would not be separated (at [51]), this was, as submitted by the applicant, part of the Tribunal’s thought process and does not demonstrate proper consideration of the claim expressly raised by the applicant about the daughter being left in Australia.
In considering the matters relevant to the exercise of the discretion, the Tribunal was required to have regard to (that is; properly consider and evaluate) the applicant’s claim that the youngest daughter would be left behind in Australia and separated from the family. This consideration was relevant to the Tribunal’s proper assessment of the impact of cancellation on the best interests of the youngest daughter, which in turn was relevant (and informative) to its assessment of whether Australia’s international obligations may be breached. The Tribunal’s failure to properly consider and assess the claims in respect of the youngest daughter constituted an error on its part.
The applicant has successfully established error in the Tribunal’s decision.
Given the above findings, it is not necessary for me to consider whether the Tribunal’s approach to the best interest of the children was illogical.
As to the issue of materiality, I am guided by the reasoning in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR, where the Court said at [16]:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
While I am mindful that the exercise of the discretion was entirely a matter for the Tribunal, I cannot affirmatively conclude that the outcome would have inevitably been the same if the error had not occurred. The error is therefore jurisdictional.
CONCLUSION
As the Tribunal’s decision is affected by jurisdictional error, the Court will issue writs of certiorari and mandamus in this matter.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 28 August 2025
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