CQT19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 220
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CQT19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 220
File number(s): SYG 1674 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 20 February 2025 Catchwords: MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had engaged in legally unreasonable reasoning and had failed to properly and genuinely consider the allegation and evidence – whether s 109 of the Migration Act 1958 (Cth) required a decision maker not to make intermediate findings and to make only one comprehensive finding.
Legislation: Migration Act 1958, ss.36, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Number of paragraphs: 29 Date of hearing: 29 January 2024 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the Respondents: Mr T Riley Solicitor for the Respondents: The Australian Government Solicitor ORDERS
SYG 1674 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 CAMERON
INTRODUCTION
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 13 May 2010. In May 2011 he lodged an application for a protection visa with what is now the Department of Home Affairs (Department) in which he claimed to fear persecution in Iran, his country of habitual residence, because he was a stateless Faili Kurd. He claimed to have been discriminated against in Iran because of his ethnicity. The applicant was granted a protection visa on 11 May 2011 but on 28 May 2018 that visa was cancelled under s.109 of the Migration Act 1958 (Cth) (Act) on the ground that he had intentionally provided incorrect information in relation to his identity, his status as an Iranian citizen and his possession of valid travel documents. Prior to the cancellation the applicant admitted that his claims to have been stateless were untrue.
On 28 May 2018, the applicant was granted a Resident Return (subclass 155) visa (RRV), which was cancelled by a delegate (Delegate) of the first respondent (Minister) on 30 July 2018 on the basis that he had provided incorrect information in relation to his protection visa application. The applicant then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision to cancel his RRV. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: to affirm the Registrar’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision concerning the RRV is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
At all relevant times, the Act provided:
…
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
…
107A Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
At all relevant times, r.2.41 of the Migration Regulations 1994 (Cth) (Regulations) relevantly provided:
Whether to cancel visa — incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
…
BACKGROUND FACTS
As summarised by the Tribunal, the applicant relevantly made the following claims in support of his application for review of the decision to cancel his RRV:
(a)he was not religious and had had difficulties in Iran because of this, including at school and university;
(b)he had completed a full school education in Iran and later commenced a university-based advanced diploma in accountancy studies and a bachelor’s degree in accountancy at a second university. When at school he would be punished for not observing religious norms. He had had difficulties at his universities because of his attitude towards Islam and because of the way he dressed, did his hair and asserted his right to freedom of speech and freedom of religion. He said he scored the highest marks in his exams but was awarded lower marks because of his views on Islam. He was also not awarded his degree;
(c)he undertook compulsory military service after leaving university but was not granted leave and was humiliated and punished, mainly because of his views on religion;
(d)following military service he worked casually as a labourer and as a street vendor. He could not obtain work in accountancy because he had not been awarded his degree;
(e)when in Iran, the applicant had a girlfriend as did one of his friends. One night he and his friend went to the home of one of the girls but were disturbed by the return of her father and the applicant and his friend ran out of the house. They fled into the mountains but were discovered by their girlfriends’ fathers who accused them of raping their daughters. The applicant’s friend was later reported to have been apprehended, raped and murdered and the people responsible had threatened to do the same to the applicant. Although this incident had occurred ten years earlier, the applicant continued to fear that he would suffer harm as a consequence of it if he returned to Iran; he had been told that people were constantly going to his family home shouting and abusing his family over what had happened;
(f)he had a brother living in Australia but they were estranged because of their different views on religion. They had not spoken to each other for approximately six or seven years although they had lived with together in Australia for a short period;
(g)after he arrived in Australia he had maintained a social media website but had had to deactivate it because he was being threatened. The threats related to what he had done in Iran, his ideas and content he posted that was critical of the Iranian government. He said that he did not know who had made the threats but they knew him;
(h)he had had a driver's licence in Iran but not a passport. Even so, he had made a police report in Australia alleging that he had lost his passport, following which he obtained one from the Iranian embassy.He had sought that passport because he was thinking of returning to Iran as his mother was unwell, but later changed his mind because he was too scared to return;
(i)he did not dispute that he had originally sought his protection visa on the ground that he was a stateless person and suffered discrimination as a result, such as by not being able to go to school or find employment, and had denied having a brother in Australia, but said that his interpreter at Christmas Island told him that if he spoke about his education or said that had Iranian documents he would be sent back to Iran. He also said that he was advised to keep his identity separate from his brother;
(j)he had not originally advanced protection claims based on his views of Islam because there were too many observant Muslims with him in detention and he was afraid that interpreters would not keep his evidence confidential;
(k)in response to the Tribunal’s observation that he had sought a protection visa on the basis that he was a stateless person and that his:
… parents were born in Iraq and later came to live in Iran. Because he was stateless, the applicant received only a few years of school education. Apart from holding a ‘green card’, as a stateless person, the applicant did not hold any other form of documentation. He therefore had to work illegally and, for doing so, received harassment from the Basiji. He was not called up to perform military service because it was compulsory only for Iranian citizens. In his evidence for the Independent Merits Review the applicant made similar claims.
the applicant said that his claims in his protection visa application that he had minimal education, could not perform military service and did not have a brother in Australia, were advanced because he was afraid he would be persecuted in Iran and had been told by interpreter to withhold the truth;
(l)his wife was an Australian citizen who had moved to Australia from Iran in 2009. Since then, she had travelled to Iran almost every year and, since his birth in 2014, had taken their child with her on each visit to Iran for periods of up to 6 months;
(m)his wife and their son were Christian and he claimed they would be harmed in Iran for that reason and also to have revenge on him;
(n)psychological reports submitted by the applicant stated that he and his wife suffered from severe depression, panic attacks, anxiety and PTSD. Certain reports indicated the applicant’s mental health issues were due to his experiences in Iran and his ongoing fears of returning there;
(o)other medical reports stated that the applicant had suffered injuries from a car accident in 2016, which had stabilized, that he was diabetic and that he could not obtain the medical care he required in Iran “because of his background and the difficulties that he had” had there; and
(p)the applicant had not caused harm in the community since arriving in Australia, was involved in the Kurdish community, had attained a qualification as an English interpreter and had helped many migrants to resettle in Australia.
The Tribunal recorded that the applicant’s wife gave evidence that:
(a)she had been detained and photographed on multiple occasions by the Iranian authorities because she did not comply with their dress rules for women;
(b)if the applicant were forcibly sent to Iran, their marriage would collapse and the applicant would not see his son again because she would not go back even for a short visit as she was too afraid that the applicant or the government would take her son away from her. This was because in Iran all of the power was held by men and if the applicant took her child and did not give him back there would be nothing she could do about it; and
(c)the applicant and their son are close and the applicant’s presence benefits their child, an opinion supported by a psychological report.
THE TRIBUNAL’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that the applicant had not complied with s.101 of the Act and, having regard to all the relevant circumstances, affirmed the Delegate’s decision to cancel the RRV.
The Tribunal assessed the factors prescribed under r.2.41 of the Regulations and had regard to the relevant policy considerations set out in PAM3 ‘General Visa cancellation powers’, by reference to:
(a)the circumstances of the applicant’s non-compliance with migration regime;
(b)the applicant’s other or subsequent behaviour including non-compliance;
(c)and all other factors relating to the applicant’s then-circumstances, including: any potential breach of international obligation, the best interests of the child, and potential hardship caused to the whole family unit including his wife.
The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:
17.The Tribunal was satisfied that the notice issued under s 107 complied with the statutory requirements: at [2]. The issue before the Tribunal was whether there was non-compliance in the way described in the s 107 notice, and if so, whether the RRV should be cancelled pursuant to s 109(1): at [3].
18.The Tribunal considered that the evidence before it clearly indicated that the applicant is a citizen of Iran and he is not stateless: at [43]-[44]. The Tribunal accepted that the applicant received a full school education and attended 2 universities in Iran in contrast to the applicant’s PV claims. The Tribunal agreed with the delegate and found that the applicant had advanced incorrect information in his PV application about his statelessness, his level of education, his relationship with his brother and whether he held an Iranian passport. The Tribunal found that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice: at [46].
19.The Tribunal noted that in exercising the discretion in s 109(1) it had to consider the applicant’s response to the s 107 notices 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 Migration Regulations 1994. The Tribunal acknowledged that it may also have regard to department policy in PAM 3, including consequences of cancelling the visa such as Australia’s international obligations relating to best interests of the child, family unity and non-refoulement: at [48]-[49].
20.The Tribunal considered the applicant’s circumstances at [52]-[90], including whether the applicant, his wife and child faced a real chance of serious harm on return to Iran. The Tribunal found that the applicant was not a witness of truth: at [44]. The Tribunal rejected the applicant’s protection claims, finding that there was no credible evidence that anyone in Iran seeks to harm the applicant (at [91]), or that he suffered harm in Iran based on his ethnicity (at [99]). The Tribunal disbelieved the applicant’s claims about the incident in Iran involving his former girlfriend. It was of the view that the risk of the applicant suffering harm of any kind because he has been in Australia and applied for protection is remote: at [101]. The Tribunal found that the risk of serious harm in Iran to the applicant’s wife and child are also remote: at [105].
21.The Tribunal accepted that the applicant’s wife follows and practises Christianity: at [83]. The Tribunal referred to DFAT country report on Iran dated 7 June 2018 which indicates that Christians who simply practise their faith in a low-level way do not suffer serious harm, with the exception of those who were outspoken and more public in their faith. The Tribunal found that the applicant’s wife was not such a person based on evidence about her practice of Christianity, at [77], and noted that she did not at any stage claim to want to evangelise in Iran: at [95]. The Tribunal also noted that the applicant’s wife and child have spent time in Iran and not suffered harm because they are Christians: at [95]. Overall, the Tribunal was satisfied that the applicant’s wife and child can practise Christianity in Iran if they were to live or visit there: [84]. The Tribunal also found that the applicant, his wife and child will not suffer harm because the applicant is a Muslim married to and living with a Christian woman raising their child as a Christian: at [95].
22.The Tribunal found that the best interests of the applicant’s child is [sic] not compromised by the applicant returning to Iran where he is free to apply for a visa to return to Australia on the basis of his marriage to his wife who is an Australian citizen: at [92]. The Tribunal reasoned that the applicant’s wife and child can live with the applicant in Iran for the period it takes for any visa application to be determined, or they can visit the applicant temporarily which will alleviate hardship caused through separation.
23.The Tribunal found that the applicant’s non-compliance was very serious as it went to the grounds on which he was allowed to remain in Australia: at [91]. For the reasons it gave and having regard to all the relevant circumstances, the Tribunal determined that the RRV should be cancelled: at [116].
THE PROCEEDING IN THIS COURT
In the further amended application filed on 29 January 2024 the applicant alleged:
1.At the time a delegate of the Minister granted the applicant a resident return visa on 28 May 2018, the Minister knew the applicant had provided incorrect information in and relating to his protection visa application lodged in May 2011 and had thereby not complied with s 101 of the Migration Act 1958 (Cth). As a result:
a)Based on the reasoning of Finkelstein J in Jalal v Minister (2000) 60 ALD 779, there was no power to cancel the applicant’s resident return visa on grounds known at the time the visa was granted. The Administrative Appeals Tribunal (“AAT”), sitting in the shoes of the Minister, erred in cancelling the applicant’s resident return visa on grounds known to the Minister at the time the visa was granted.
b)In the alternative, even if Finkelstein J’s reasoning is not correct, the fact that the resident return visa was granted by the Minister with knowledge the applicant had not complied with s 101 was a matter the AAT ought to have taken into account in deciding whether to cancel the visa: see Minister v Jalal (2000) 102 FCR 63 at [18]. The AAT did not take this matter into account and thereby fell into jurisdictional error.
1A.The AAT found in its decision at [44] that “because [the applicant] is not a witness of truth, the Tribunal disbelieves all of the applicant's claims about being anti-religious or anti-government and having difficulties in Iran on those grounds”. The fact that a person is not a witness of truth does not mean every claim made by the person is not true. Instead, whether a decision-maker accepts a claim as true depends on a number of considerations, including the claim's plausibility, consistency with country information and corroborative evidence. The AAT reasoned that, merely because the applicant was not a witness of truth, a group of his claims were not true. This reasoning process was legally unreasonable.
2.The AAT found in its decision at [45] that “because [the applicant] is not a witness of truth, the Tribunal also disbelieves his claim about the incident he claims occurred just prior to leaving Iran in which he and a friend were being pursued by the families of two women"(“Incident”). In relation to this finding:
a) The fact that a person is not a witness of truth does not mean every claim made by the person is not true. Instead, whether a decision-maker accepts a claim as true depends on a number of considerations, including the claim's plausibility, consistency with country information and corroborative evidence. The AAT reasoned that, merely because the applicant was not a witness of truth, a group of his claims were not true. This reasoning process was legally unreasonable.
b) The AAT did not test the applicant's evidence concerning the Incident at the hearing on 8 March 2019. To reject the claim without testing the applicant's evidence is procedurally unfair or legally unreasonable, or involves a failure to properly and genuinely consider the evidence.
3.The AAT at [92], in considering the impact of the visa cancellation on the applicant's child in the context of whether to exercise the discretionary power in s 109 of the Migration Act to cancel the applicant's visa, found that “international obligations related to his child ... will not be violated and the best interests of the applicant's child not compromised by having the applicant return to Iran”, despite the fact that the AAT also found that the child will suffer “hardship caused through separation from” the applicant (at [92]) and “upheaval” (at [110]). In the circumstances, the finding that the best interests of the child will not be compromised is perverse. As accepted by the AAT at [87], it is not certain that the applicant will obtain a visa to return to Australia and “the time it takes to process the application” is unknown. Whether the child remains in Australia (and suffers “hardship caused through separation from” the applicant), or moves permanently to Iran (and suffers hardship through disruption), or occasionally “visits Iran ... and stays with the applicant temporarily” (which is both disruptive for the child and involves hardship through separation when the child is in Australia), the child will suffer hardship and upheaval. It is inevitable that cancellation of the applicant's visa compromises the best interests of the child and is not in the best interests of the child.
4.The applicant's wife expressed a fear that, if she returned to Iran with the applicant and their child, “the applicant would be granted custody of their child if they were all in Iran and their marriage failed” (at [86]). The applicant's wife lost access to the child of her first marriage in this way: at [63]. In considering the impact of the visa cancellation on the applicant's wife in the context of whether to exercise the discretionary power in s 109 of the Migration Act to cancel the applicant's visa, the AAT did not give real and genuine consideration to this matter.
5.The applicant's wife claimed she would suffer hardship if the applicant's visa was cancelled. It is obvious the wife would suffer hardship if the applicant's visa was cancelled, whether she remained in Australia and thereby suffered “hardship caused through separation” (at [92]) or moved to Iran to live with the application permanently, which at minimum would cause “upheaval for the wife” (at [110). The AAT was required to consider or take into account. in considering the exercise of the discretionary power, “the degree of hardship that may be caused to ... any family member”. The AAT, although it referred to the various hardships the wife would suffer, discounted the hardships such that the AAT did not, in fact, take into account the significant hardship the wife would suffer when deciding whether to cancel the visa.
6.The AAT at [90], after noting the applicant's claims that in the role of an interpreter “he helped many new migrants to resettle in Australia” and he has “benefit[ted] the local Kurdish community, found that this “does not justify the applicant remaining in Australia”. The AAT at [110], after finding that the cancellation of the applicant's visa “will cause upheaval for ... his wife and child", discounted this matter because the wife and child can join the applicant in Iran “for periods or permanently”. The AAT at [113], after “acknowledg[ing]” evidence that “the applicant is a good person, spouse and father", “has been involved in and helped with the local Kurdish community"' and “worked here", found that “the applicant's involvement in the local community, his work and study here do not outweigh the fact that this family has the option of remaining together in Iran”. The reasoning or weighing processes at [90], [110] and [113] are inconsistent with the proper construction of the discretionary power in s 109 of the Migration Act for reasons including the following:
a.First, s 109, together with reg 2.41 of the Migration Regulations and PAM3, requires the AAT to “have regard to” matters including “the visa holder's present circumstances", “any contribution to the community made by the visa holder", “the best interests of children” and “the degree of hardship that may be caused to ... any family members”. On the proper construction of the discretionary power, a decision-maker must have regard to each matter without making interim findings as to whether a matter in support of the visa not being cancelled is “outweighed” or discounted by a matter in support of the visa being cancelled. After the decision-maker has had regard to each matter, the decision-maker should decide how to exercise the discretionary power.
b.Second, the AAT's reasoning in the last sentence of [113] is irrational. The “applicant's involvement in the local community, his work and study” are reasons not to cancel his visa. That the applicant's wife and child would need to relocate to Iran to remain together with the applicant, when they prefer to reside in Australia (see for example at [86]), are also reasons not to cancel the applicant's visa. The former matters do not “outweigh” the latter matters.
Ground 1
Ground 1(a) was not addressed on, although formally was not abandoned. Ground 1(b) was abandoned.
Grounds 1A and 2
The applicant alleged in grounds 1A and 2 of the further amended application that it had been unreasonable of the Tribunal to disbelieve him when he claimed to have held views against religion and the Iranian government and to have had to flee his girlfriend’s vengeful family because admittedly false evidence he had given in the early stage of the visa process had led the Tribunal to conclude that he was not a witness of truth. He alleged that a person may not be a witness of truth and yet still give truthful evidence on some matters.
That allegation is correct as far as it goes, but it does not address the difficulty that a decision-maker has in divining what is truthful evidence and what is not. Relevantly, it is open to a decision-maker to disbelieve all contentious evidence given by a witness if their credibility is so harmed by their identified untruths that no reliance may confidently be placed on their evidence as a whole. That would appear to the situation here. The case the applicant originally advanced was that he faced persecution in Iran because of his ethnicity while the one he ultimately prosecuted was that he feared persecution there by reason of his beliefs and his relationship with a young woman. The significant discrepancy between those two sets of claims and the failure the propound the second set from the outset required persuasive justification which the applicant failed, in the Tribunal’s opinion, to provide.
The particular significance of the Tribunal’s finding that the applicant was not a witness of truth was that it was the foundation of the Tribunal’s disbelief of the applicant’s claims to fear persecution because of his opinions, with the consequence that there was no credible evidence before it about his attitude towards Islam. This was a logical conclusion and not one that no reasonable decision-maker would have made. Having reached that conclusion, it was therefore well open to the Tribunal to proceed to disbelieve all of the applicant’s claims about having expressed anti-government and anti-religious views over social media and about having received threats on account of having done so.
Given that the Tribunal did not believe that the applicant had told the truth on important matters, it was also not unreasonable of it to disbelieve his late and unusual allegations concerning the incident involving his supposed girlfriend.
Ground 3
Ground 3 of the further amended application essentially alleges that no reasonable fact-finder would have found other than that the best interests of the applicant’s son required the applicant’s presence in Australia. I accept and adopt the Minister’s submission that:
The Tribunal’s conclusion was based on its lengthy examination of the applicant’s wife’s circumstances, including her being raised and educated in Iran until coming to Australia as an adult in 2009, and her numerous and lengthy visits to Iran, including with their child: [76-87]. Having found at [92] that the wife and child could return to Iran with the applicant or visit him there while he applies for an Australian visa, it was open to the Tribunal conclude that no breach of the [Convention on the Rights of the Child] would result from cancellation of the applicant’s visa.
Ground 4
In ground 4 of the further amended application the applicant alleged that the Tribunal did not give real and genuine consideration to his wife’s fear that if she took their son to Iran the applicant would require that she leave him there were she to return to Australia, as had happened to her in an earlier marriage. However, the Tribunal did have regard to the fact that the applicant’s wife had taken their son to Iran more than once and noted that any distress she continued to feel about loss of access to her earlier child had not prevented her from doing so. That is to say, the Tribunal considered the evidence before it but was not persuaded of the applicant’s wife’s claim.
Ground 5
Ground 5 of the further amended application alleged that the Tribunal had failed to have regard to the hardships that the applicant’s wife would suffer if the applicant were required to return to Iran. In his written submissions he argued that the Tribunal had not given this matter “proper, genuine and realistic” consideration. However, that contention is disproved by paras.85, 86, 92 and 110 of the Tribunal’s reasons for decision where the issue is canvassed more than once and in detail sufficient to demonstrate a genuine engagement with it.
Ground 6
The first sub-ground of ground 6 of the further amended application stated:
… s 109, together with reg 2.41 of the Migration Regulations and PAM3, requires the AAT to “have regard to” matters including “the visa holder's present circumstances", “any contribution to the community made by the visa holder", “the best interests of children” and “the degree of hardship that may be caused to ... any family members”. On the proper construction of the discretionary power, a decision-maker must have regard to each matter without making interim findings as to whether a matter in support of the visa not being cancelled is “outweighed” or discounted by a matter in support of the visa being cancelled. After the decision-maker has had regard to each matter, the decision-maker should decide how to exercise the discretionary power.
The implicit allegation is that the Tribunal considered and dismissed each of those considerations separately when it should have considered them cumulatively. What was implicit in the application was made explicit in the applicant’s written submissions, where it was said:
90. On the proper construction of the discretionary power, a decision-maker should have regard to each matter without making interim findings as to whether a matter in support of the visa not being cancelled is “outweighed” or discounted by a matter in support of the visa being cancelled. After the decision-maker has had regard to each matter, the decision-maker should decide how to exercise the discretionary power.
91. In the present matter, the AAT at each of [90], [110] and [113] effectively eliminated three matters in the applicant’s favour before reaching the ultimate weighing or balancing step at [116].
In those paragraphs the Tribunal said:
90.The Tribunal put to the applicant that there was evidence before it as to his involvement in the local Kurdish community and asked him whether he wished to say more about that. In response, the applicant said that he kept things secret when he came to Australia because of his fear. In Australia he had done nothing wrong to harm the community. He had undertaken and completed English language studies to receive a diploma as an interpreter. In that role he helped many new migrants to resettle in Australia. If anything those skills and experience should enhance his ability to find employment on return to Iran. While the applicant has involvement with the local Kurdish community in Australia, whatever benefit that involvement has given that community, it does not justify the applicant remaining in Australia.
…
110.The Tribunal accepts that the applicant’s return to Iran will cause upheaval for him, his wife and child. However, as discussed above, the Tribunal finds that the applicant’s wife and child are free to join him in Iran for periods or permanently. It is clear from the evidence before the Tribunal that the applicant’s wife has a social circle here in Australia based on her practice of Christianity. She can turn towards those people for emotional support while she is here in Australia.
…
113.Those claims can be accurately synopsised as assertions that the applicant is a good person, spouse and father; he has been involved in and helped with the local Kurdish community; he has undertaken courses in Australia and worked here and he and his family are anxious about his immigration status. Similar claims are made by the applicant, his wife and representative. The Tribunal acknowledges all of these claims. However, for the reasons given above, the Tribunal finds that that the applicant’s wife and child can join the applicant in Iran for periods of time each year or permanently. The applicant’s involvement in the local community, his work and study here do not outweigh the fact that this family has the option of remaining together in Iran.
It should also be recorded that the Tribunal’s ultimate conclusion on the issue was expressed as follows:
116. For all of the reasons given above, the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
Even assuming that the Tribunal had not undertaken a cumulative consideration of all relevant matters, which para.116 indicates was not the case, the applicant has not identified any considerations in the preceding paragraphs that might have outweighed the finding in para.113 or indeed were not taken into account by the reasoning underlying that finding. The matter in issue was the relative disadvantageousness of the family removing to Iran pending the outcome of a spouse visa application that it was open to the applicant to make. A review of paras.52 to 113 indicates that relevant matters were considered and that para.113 itself represented a cumulative consideration of all the material findings that had gone before.
The allegation of irrationality referred to in ground 6(b) fails to have regard to the first three of the considerations prescribed by reg.2.13 of the Regulations, namely the significance of the original non-compliance. The Tribunal said in that regard:
The applicant’s non-compliance is very serious as it goes to the grounds on which he was allowed to remain in Australia. The Tribunal finds that the applicant can be expected to return to Iran and there is no credible evidence that anyone in Iran seeks to harm him.
The conclusion in para.113 is considered in the context of that finding. The question was whether a person whose serious non-compliance with the requirements of the Act was the very basis of his presence in Australia should be permitted to remain because some slight contribution to and participation in the community by him meant that the applicant’s wife and child should be spared the acknowledged upheaval that keeping the family together in Iran would entail. The Tribunal found that it did not.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 February 2025
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