1818738 (Refugee) [2019] AATA 6602 (28 October 2019)

Last Updated: 17 March 2020

1818738 (Refugee) [2019] AATA 6602 (28 October 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1818738

COUNTRY OF REFERENCE: Stateless

MEMBER: Sean Baker

DATE: 28 October 2019

PLACE OF DECISION: Melbourne

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 28 October 2019 at 4:18pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – incorrect information in protection application – not stateless Faili Kurds but Kurdish Iranian citizens – birth certificates and passports – exercise of discretion – factors for and against cancellation – best interests of children – youngest child an Australian citizen – family’s integration into work, school and community – medical and mental health conditions – potential consequences if returned – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140(1), 107, 109(1)

CASE
MIAC v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection application, that his visa was liable to cancellation as a result and that the reasons for cancelling the visa outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. The applicant was represented in relation to the review by his registered migration agent.
4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects.
9. The applicant claimed in his protection application to be a stateless Faili Kurd, habitually resident in Iran, who did not hold identity documents from Iraq or Iran, and had suffered mistreatment and discrimination in Iran. His wife and daughters were also claimed to be stateless.
10. The s.107 notice set out the view of the delegate that the applicant and his wife, and therefore their two daughters, are Iranian citizens, and were at the time of their departure from Iran, based on the applicant’s response to the previous s.107 notice, and the supporting documents provided with that response including Shenasnameh (Iranian birth certificates) for himself, his father and his wife. The delegate also decide that the passports used by the applicant, his wife and their daughters to exit Iran and travel were genuine. The delegate concluded that the applicant had provided incorrect information in regard to what names he had been known by, his citizenship, his declaration not to have a travel document, and his claims which related to discrimination and harassment he received as a stateless Faili Kurd in Iran, all which were found to be incorrect by the delegate on the basis that the applicant was an Iranian citizen, had been since birth, and that his correct name was [Name 1], the name on the passport the applicant had travelled on.
11. Before the Tribunal, in the submission and at the hearing, the applicant conceded that the incorrect information was provided in his protection visa application submitted on 29 January 2011 and 12 September 2011, and that there was non-compliance by the Applicant within the provisions in section 101 of the Act and in the way described in the section 107 notice issued by the Department on 12 March 2018.

Conclusion

12. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

13. 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).
14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

the correct information

15. The applicant conceded that he, his wife and two daughters were citizens of Iran and had departed Iran on genuine Iranian passports. He noted however that there were deficiencies in the Shenasnameh he had been issued, the first one was cancelled and then it had taken a few years to get a new one issued. He explained that he had damaged this Shenasnameh and in the process of having it replaced, the authorities had had concerns with the information regarding his claimed place of birth in Iran and had cancelled the Shenasnameh roughly 5 – 6 years before he had come to Australia – and he had not been issued with the second Shenasnameh until approximately a year prior to coming to Australia. He explained that the name in this Shenasnameh, which was also the name in his passport, was [Name 2], and he thought this was because his grandfather’s name was [Surname]. He conceded however that he had provided incorrect information about his status in making his application for protection, as above.
16. It is submitted that the applicant has a low level of education, spoke minimal English, and has vulnerabilities which have been contributing factors as to why incorrect information was submitted to the Department. It is submitted that the Applicant has been consistent with the Department that despite holding Iranian citizenship, he is still a Faili Kurd who was born in Iraq. He further continues to contest that he believes his documents were defective in light of the process through which his father’s documents were provided.
17. I note that this information in mitigation does not go to the question of the correct information. I find on his admission that at the time of the protection application the applicant was a national or Iran, that is, that he was recognised as a national of that country, holding Iranian identity documents (the Shenasnameh) issued by the Iranian authorities to him, and with which he obtained an Iranian passport. I find that the correct information is that the applicant, his wife and daughters are Iranian nationals. I am prepared to accept that the acquisition of his Iranian citizenship may have occurred as he has claimed – his description is consistent with country information that Faili Kurds may need to utilise unofficial or unorthodox methods because of the lengthy and complicated processes and costs involved in the official naturalisation process.^[1] Nevertheless, the applicant has, by his admission, not provided the correct information, and this weighs significantly towards cancellation of the visa.

the content of the genuine document (if any)

18. As the delegate found, I find that this consideration is not relevant to my assessment.

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

19. The applicant has claimed that the mistreatment he claimed to have suffered did happen, in the period between the cancellation of his first Shenasnameh and the provision to him by officials of his second Shenasnameh. Even if this was the case, I note that this was a period in which the applicant claimed he did not hold documents to establish his Iranian nationality, and that he was subsequently granted a second Shenasnameh. As conceded, at the time of the protection application, he and his wife and daughters were nationals of Iran, and therefore would have returned to Iran as such. Therefore, I am not convinced that the mistreatment he claims to have experienced when he did not hold identity documents had any bearing on the assessment of whether he or his family would suffer harm on return as nationals of Iran.
20. I note that it was accepted at the time of the grant of protection that the applicant and his family are Faili Kurds. This is not disputed by the delegate in the cancellation decision.
21. I put to the applicant and his family for comment information from DFAT reports about the situation for Faili Kurds in Iran:

Faili/ Feyli/ Iraqi Kurds
The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinctive dialect. Three main groups of Faili Kurds live in Iran: Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees. Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available.
Upon seizing power in the 1960s, the Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree No. 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is very much at the high end). Iran recognised many (but not all) Faili Kurds as refugees. The number of those remaining in Iran is unclear. Many returned to Iraq after the fall of Saddam Hussein in 2003: UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran. Reports suggest that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved – this is also true for naturalisation applications for nationality from other groups, including those who have married Iranians or been in-country for generations. Others have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian nationality. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.^[2]

22. I noted to the applicant and his family that this information appeared to me to adequately address the situation nine years ago, and may lead me to infer that the applicant and his family may not have been granted protection visas on the basis that they were documented Faili Kurds at time of visa grant.
23. The applicant responded that the reality was that Kurdish people in Iran and in Kurdish areas do face discrimination and that is the case in Iran as well as in neighbouring countries. The applicant’s wife said that this had been her experience also. She said that because of their accent, people said that they were Arab and picked on that and she had found it hard to find employment. She said they (Kurdish people) also tended not to follow the hijab closely and that caused them problems – she said she had been harassed by the Basij many times because of hijab issues.
24. The submission set out alternate bases for the finding that the applicant and his family were owed protection and argued that:

... the Applicant’s evidence is required to be assessed against the history of conflict and insecurity which have been the main drivers of internal displacement in Iran for Faili Kurds. We refer to the significant amount of country information provided with this submission that strongly supports the contention of harm and discrimination experienced by Faili Kurds born in Iraq in Iran. In light of the country information, and the Applicant consistency in his claims regarding the discrimination experienced as a Faili Kurd from Iraq, and considering the Applicant’s protection visa was granted in 2011, it is likely that the delegate would have made the finding that the Applicant and his family were owed protection based on the Applicant’s claims as a Faili Kurd from Iraq and refugee nexuses specified above. It is likely that the delegate would have made the decision to find that Australia had protection obligations based on the evidence before them.

25. There are several difficulties with this submission. I have read the country information attached to the submission, and I note that it does not differentiate between Sunni Kurds, and Faili Kurds such as the applicant and his family, who share the Shia sect with the majority of Iranians. The country information notes instances of discrimination and low-level harassment, but the charges of more serious harm are related to Sunni Kurds or those seeking Kurdish independence. I therefore do not consider that this country information supports the contentions made. The conclusion of this argument also does not assist because, as the applicant has conceded, the delegate (or in this case the independent merits assessor) made the decision on the information before them, which did not include that the applicant and his family were nationals of Iran. I am not persuaded by this submission.
26. On weighing country information, the claims of the applicant and his wife and the submission, I find that the weight of evidence before me indicates that the decision to grant the applicant and his family protection visas was based, at least in part, on the incorrect information that they were stateless and did not have the rights of nationals of Iran. I therefore give this factor significant weight towards the visa being cancelled.

the circumstances in which the non-compliance occurred

27. In their statements and at hearing the applicant and his wife gave compelling evidence about the difficult circumstances in which the non-compliance occurred. They said that they were told what to say when they arrived, that they were not told about Australian laws. They said that they were told by people in [Country 1] that if they showed their passports in Australia they would be immediately returned to Iran. They were very worried that this would add to their problems, and because of that they were very frightened. When they were on board the boat to Australia the people smuggler took their passports from them and threw them in the ocean. I noted to them that the ocean crossing would have been very difficult with two young children and they said it had been very hard.
28. I accept the evidence of the applicant and his wife in relation to the period prior to the provision of the incorrect information. I accept that they had been misled and persuaded to provide incorrect information about their nationality by others. They were in a vulnerable situation and I accept were of the view that they should follow people’s advice. I am sympathetic to the situation they were in, and I also note their contrition about the provision of the incorrect information, but ultimately they made the decision to provide the incorrect information. Weighing the circumstances I give this factor some weight towards the visa being cancelled.

the present circumstances of the visa holder

29. In the response to the s.107 notice, submissions, and at hearing, the applicant and his family gave detailed information about their present circumstances. Whilst I am considering primarily the situation of the applicant, in this case the applicant’s wife and daughters had their visas consequentially cancelled under s.140(1), an automatic cancellation power with no ability to seek review. I consider, as clearly the delegate did, that the situation of the applicant’s family is of considerable relevance in considering the applicant’s cancellation because the status of the applicant will have a direct bearing on whether his family’s visas remain cancelled or not. For this reason and for ease of including present circumstances of the family at one location of the decision, I have therefore considered the applicant’s family situation as a relevant consideration.
30. The applicant and his family have remained in Australia for nine years. In that time the applicant and his wife has had another child, who is an Australian citizen. The children have attended school and spent the majority of their lives in Australia, and the applicant’s wife has trained and then worked as [an Occupation 1].
31. In statements, submissions and at the hearing the applicant explained his current circumstances. He said that the business he and his wife had started had unfortunately not been successful, but that his wife was now working in [Occupation 1 sector] (and, she said, had been working in her current position for two years) and he in a [workplace]. He and his wife gave evidence that they had blended well into the Australian community, and they also attended events held by the [Organisation 1]. They enjoy the Australian way of life, consider themselves secular, like celebrating Christmas, going to the beach and having BBQ’s. They have made many friends in Australia. I have had regard to the statements from the applicant and his wife, and the educational certificates for the applicant and his wife.
32. They explained that the children had made friends and excelled in their studies, with the elder daughter hoping to pursue [Subject]. The parents do not believe that their daughters, in particular, would have the same educational opportunities in Iran. The children are [ages], and the eldest two have spent the majority of their lives in Australia, the youngest being an Australian citizen. The parents and the eldest child gave evidence that the children are integrated into Australian life, have little memory of Iran, and have only poor Kurdish and Persian language skills.
33. Since the cancellation, the family gave evidence that they have been severely affected by the cancellation – the applicant has suffered [a medical condition], and the wife and eldest daughter have suffered significant mental health problems. In considering this I have taken into account the letter from the wife’s Doctor, the eldest daughter’s treating psychologist, and the letters of support from the Principal of [School]. The eldest daughter, according to the Principal of her [school], has experienced academic success in all her classes and has formed strong and supportive friendships. The youngest daughter has also done well at school and is supported in friendships and linkages with the school and community. The youngest child has begun school and is enjoying beginning his education.
34. The fact that the youngest child is an Australian citizen was discussed. I have had regard to the birth certificate and passport of the youngest child.
35. The applicant confirmed that he had recovered well from his [medical condition] earlier this year, and had returned to work. He emphasised that he and his wife were working as they strongly felt they did not want to be a drain on the community. Under questioning he said that he believed it may be difficult to get his [medical condition] medication in Iran, where the sanctions meant it was difficult for people to get [mediation].
36. I noted that the applicant’s wife and his daughters did not wear the hijab. I asked the applicant’s wife if she had worn the hijab since coming to Australia. She said that she had initially worn it because she was worried that news might reach her family that she had been going outside without hijab but this was for a short period and since then she has not. She said that as a family they did not really believe in the hijab and had not made the daughters wear hijab.
37. I discussed with the applicant his religious practice. He said that Kurds were not very observant but he was even less observant, and had gotten in trouble because he almost never went to mosque on Fridays. He said that he strongly objected to his wife and daughters having to wear hijab.
38. I accept that the family have integrated into the Australian community, whilst maintaining links with the [Organisation 1]. I accept that the applicant and his wife are working, and that they pride themselves on this contribution to Australia. I accept that the children have integrated well into school, and that the daughters are doing well at school and have established significant links and friendships in the community. I accept that the applicant has had a [medical condition], and that the applicant’s wife and eldest child have significant mental health issues.
39. I find that the applicant and his family are supported in Australia, they have integrated into the community and school and this has acted as a significant support for them. The evidence indicates that they are a secular, integrated family who have aspirations for themselves and their children. The eldest child has achieved academic success. This is all the more admirable because she has dealt with significant mental health issues through ongoing and consistent contact with a mental health professional. I have considered the information which was raised about the hardship if returned below. These present circumstances, I find, should be given significant weight towards the visa not being cancelled.

the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

40. The applicant has, I accept, been largely truthful since the s.107 notice in issue was sent to him. He has engaged with the process. I give this some little weight in favour of the visa not being cancelled.

any other instances of non-compliance by the visa holder known to the Minister

41. The applicant has no other instances of non-compliance known, and I give this some little weight in favour of the visa not being cancelled.

the time that has elapsed since the non-compliance

42. As noted above, nine years have elapsed since the non-compliance. This is a significant period of time and has meant the family have integrated into the community, and now have an Australian citizen child. I give this factor some weight towards the visa not being cancelled.

any breaches of the law since the non-compliance and the seriousness of those breaches

43. There are no known breaches of the law by the applicant or his family. I give this some little weight towards the visa not being cancelled.

any contribution made by the holder to the community.

44. The applicant gave evidence that both he and his wife began working as soon as they had finished their studies. They have both been working in industries in demand, and in particular I place weight on the applicant’s wife having decided to work in [Occupation 1 sector], a field of great demand. I note they are also active in the [Organisation 1]. I give this factor some little weight towards the visa not being cancelled.

Policy Considerations

45. 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] FCAFC 145; (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

46. The applicant, and his family, would be prevented from applying for most visas if the cancellation is affirmed. They may face the prospect of detention (whilst noting that there may be difficulties with this from a practical perspective as the youngest child is a citizen and could not be detained under the Migration Act). However, these are the expected functions following a cancellation and I give this factor no weight.

whether there would be consequential cancellations under s.140

47. In this case there have been, of the applicant’s wife and two daughters. I have dealt with the issues and impact of these consequential cancellations above and below.

whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.

48. I have, above, considered the situation for the applicants as Faili Kurds who hold Iranian nationality at the time of the visa application. The reasoning above was based on contemporary sources. Whilst accepting that they may face some discrimination and harassment as Faili Kurds who speak Arabic, I am not persuaded, on the country information before me, that the applicant, his wife and daughters, if returned to Iran, would suffer persecution or significant harm such that Australia’s non-refoulement obligations are engaged.
49. I turn to consider the principle of family unity. This is a principle which stems from a number of international human rights treaties to which Australia is a party, and is expressed as a universal consensus that the family is entitled to respect and protection.^[3] It is accepted that such a principle is of central importance. In this case, the delegate considered that the family unit would return to Iran together, and therefore that the principle of family unity would be preserved. I accept that that would be the outcome.
50. However, this then presents additional concerns. Firstly the concern that returning the children to Iran is not in their ‘best interests’, the overarching principle in the Convention on the Rights of the Child.^[4]
51. The applicant, his wife and eldest child all gave evidence of the potentially significantly adverse effects that returning the family to Iran would have on the children. They raised the potentially significant psychological impacts of the children being removed from their lives in Australia where they have settled well and being taken/returned to a country they had little memory of, no linkages and little language. The eldest child said that she did not think she would have the same educational opportunities in Iran, nor that it would be possible for her to pursue her career as [an Occupation 2]. As above it was noted that all of the children had poor Kurdish and Persian language skills, and would struggle significantly in their schooling as a result. The prospect of removal has had a significant detrimental effect on at least the eldest child. These submissions are well supported by the documents to which I have referred above. I accept that returning the children to a country they have little connection with, having spent the majority of their lives in Australia, would be extremely disruptive to their lives, and in particular to their schooling. I accept that lack of language skills would make their attempted integration into Iran that much harder and lead to profound disadvantages for the older two children in their schooling. I accept that the eldest child in particular would suffer – she would be entering the equivalent of [a specified year] in a very different environment, without the support networks here. Her mental health, and that of her siblings, would, I consider, be very likely to be adversely affected. Relevantly, both elder children are girls, and have grown up in a secular, non-observant family. If returned to Iran they would be required by national law to wear the hijab whenever out of the family home or face potentially serious consequences. I consider that this would be a profoundly alienating and difficult experience for both of them. For all of these reasons I consider that the best interests of these children is to remain in Australia and continue their lives and schooling with the support they have here. This is, it is clear, only a primary consideration, not the primary consideration, but my view is that these children would be very profoundly affected by their removal to Iran.
52. Secondly, the youngest child is an Australian citizen. Australian citizenship brings obligations, but also rights and legitimate expectations. I accept that the youngest child would leave the country with his family if they were removed to Iran. I consider that this would then present him with significant practical difficulties in exercising the rights and expectations that he is entitled to as an Australian citizen, because he would be unable to return to Australia with his family (who would be excluded as persons who have had their visas cancelled) until he himself was old enough to travel on his own. I consider the best interests for this child are to remain in the country of his nationality. I consider his rights as an Australian citizen to add further weight towards the consideration of the best interests of these children.
53. For the above reasons, I gave this consideration very significant weight towards the visa not being cancelled.

any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

54. From the above discussion, there are significant hardships that the applicant and his family would suffer. Whilst I have not accepted that the applicant and his family would suffer persecution or significant harm on return, I do accept that as Faili Kurds who speak Arabic, they may face some low level discrimination and harassment. More significantly, I accept that the applicant’s wife and daughters do not want to wear hijab, and would do so only to avoid potentially serious consequences of not doing so. I accept that this is a genuine expression of their wishes. The applicant, I accept, is a non-observant Muslim, and may face difficulties for this as well. The applicant’s wife and eldest child suffer significant mental health issues. Whist mental health services are available in Iran; they can be costly and difficult to access. The applicant may have difficulties affording his [medical condition] medication. Taken together, and given the proceeding discussion, it is clear to me that this family would suffer quite significant hardship were they to be returned to Iran. I give this factor significant weight towards the visa not being cancelled.
55. I have carefully weighed the factors for and against cancellation. In this case I consider that the factors against cancellation outweigh those in favour. Whilst there is a strong public policy reason for cancelling the visas of persons who have provided incorrect information in their visa applications, the structure of the cancellation power then turns to consider relevant circumstances that may militate against the cancellation. In this case, the current situation of the children, their best interests, and the potential hardship they and their parents would face on return to Iran have weighed most heavily against the cancellation of the visa.

Conclusions

56. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

57. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Sean Baker
Member

ATTACHMENT – Migration Act 1958 (extracts)

5. Interpretation

(1) In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly.

97. Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note: Bogus document is defined in subsection 5(1).

98. Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99. Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100. Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

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.

(1A) The period to be stated in the notice under subsection (1) must be:

(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b) otherwise—14 days.

(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a) visas of a stated class; or

(b) visa holders in stated circumstances; or

(c) visa holders in a stated class of people (who may be visa holders in a particular place); or

(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

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.

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^[1] DFAT Country Information Report Iran, 7 June 2018, 3.14: DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014, 3.25.
^[2] DFAT Country Information Report Iran, 7 June 2018, 3.13 – 3.14.
^[3] See Nicholson, F., “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied” January 2018, Division of International Protection UNHCR, PPLA/2018/01, https://www.unhcr.org/5a8c40ba1.pdf
^[4] Article 3, Convention on the Rights of the Child, https://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf