AYW20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1991

1. On 23 January 2017, the Applicant applied to the Tribunal for review.[20]
2. On 19 April 2017, the Representative lodged a submission with the Tribunal in support of the Review Application.[21]
3. On 18 July 2017, the Representative lodged further submissions with the Tribunal.[22]
4. On 31 July 2017, the Tribunal affirmed the Delegate's Decision (2017 Tribunal Decision).[23]
5. On 1 August 2017, the Applicant was notified of the 2017 Tribunal Decision.[24]
6. On 4 August 2017, the Tribunal published a corrigendum to the decision made on 31 July 2017.[25]

1. On 11 January 2019, by consent, a Judge[26] of the Federal Circuit and Family Court of Australia (formerly the Federal Circuit Court) set aside the 2017 Tribunal Decision and remitted the application to the Tribunal for redetermination according to law (Remitted Application). The consent orders stipulated that the basis for remittal was that the Tribunal failed to consider the Applicant's request to call his son (Son) as a witness at the hearing.[27]
2. On 16 January 2019, the Tribunal advised the Applicant that the Remitted Application would be re-allocated to a Member for reconsideration.[28]
3. On 21 October 2019, the Applicant was invited to attend a hearing on 22 January 2020.[29]
4. On 19 January 2020, the Representative[30] lodged various submissions with the Tribunal in support of the Remitted Application.[31] The submissions relevantly conceded that the Applicant was an Iranian citizen by birth.[32]
5. On 22 January 2020, the Applicant attended the hearing with the assistance of his Representative, support witnesses and an interpreter.[33]
6. On 23 January 2020, the Representative provided further written submissions in support.[34]
7. On 18 February 2020, the Tribunal affirmed the Delegate's Decision.[35]

1. The Tribunal Decision is at pages 214 to 227 of the Court Book.
2. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Remitted Application: Tribunal's Decision [1] to [8].
3. The Tribunal was satisfied that the NOICC was issued in accordance with s 107 of the Migration Act.[36] The Tribunal noted the Applicant's concession that he had provided incorrect information to the Department in relation to his citizenship and place of birth.[37]
4. The Tribunal was satisfied that the Applicant failed to comply with s 101 of the Migration Act.[38] The Tribunal then considered whether the Visa should remain cancelled pursuant to s 109(1) of the Migration Act. In considering the discretionary exercise to cancel the Applicant's Visa,[39] the Tribunal found that:[40]

(a) the Applicant was not stateless and holds Iranian citizenship;[41]

(b) the decision to grant the Visa was wholly based on incorrect information provided by him;[42]

(c) he had continued to provide false and misleading information to the Department and the Tribunal since his arrival in Australia in 2009;[43]

(d) he was unemployed, and he had a wife (Wife) and two children (Children);[44]

(e) there had been no further non-compliance issues in relation to his Visa obligations.[45] However, the Tribunal placed weight on the "long and continuous" period of time in which the Applicant continued to perpetuate "untruths" about his citizenship status;[46]

(f) he had forged a life in Australia and noted his volunteering activities, as well as his active involvement in the Kurdish Faili community;[47]

(g) he would face challenges re-establishing himself in Iran,[48] however, the Tribunal noted that there was no evidence before it that the Applicant would suffer mistreatment;[49]

(h) he could face indefinite detention in Australia, however, the Tribunal found that this was dependent upon the choices made by him rather than the Tribunal's Decision;[50]

(i) non-refoulement obligations were not owed;[51]

(j) at the hearing, the Son expressed that he did not wish to return to Iran. The Tribunal noted that there was no valid reason for the Children "not to return" and that the Applicant's daughter (Daughter), being a young child, would experience less issues integrating into Iranian society;[52] and

(k) the Wife had mental health issues, however, the Tribunal found that she would receive adequate mental health care in Iran.[53]

1. The Tribunal concluded that the gravity of the Applicant's non-compliance in submitting "untruths" was "extremely high".[54] The Tribunal decided to exercise its discretion to affirm the decision to cancel the Applicant's Visa.

1. On 11 January 2019, Consent Orders were made by Justice Hartnett (then Judge Hartnett) setting aside the Tribunal's Decision dated 12 July 2017. The Consent Orders remitted the application for review to the Tribunal for redetermination according to law. The Court noted that the Minister accepted that the Tribunal fell into jurisdictional error by failing to comply with s 426(2) of the Migration Act.
2. On 5 March 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
3. On 26 May 2021, Orders were made by Registrar Carney of this Court for a hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with and the application be listed for final hearing. For the First Respondent to file and serve a copy of the Court Book by 9 June 2021. For the Applicant to file and serve 28 days before the hearing: any amended application, any affidavits, supplementary Court Book (if any) and written submissions. For the First Respondent to file and serve 14 days before the hearing: written submissions and any affidavits. That all evidence relied upon, other than the Court Book, be presented by way of affidavit.
4. On 24 September 2025, the Hearing before me took place.
5. The Applicant relied upon the following documents:

(a) the Application filed 5 March 2020;

(b) affidavit of the Applicant affirmed 5 March 2020;

(c) affidavit of Tessa McGregor Maybery affirmed 26 August 2025;

(d) the Amended Application filed 28 August 2025;

(e) outline of submissions filed 28 August 2025;

(f) the further Amended Application filed 29 September 2025;

(g) further submissions filed 2 October 2025; and

(h) further submissions in reply filed 16 October 2025.

(a) the response, filed 24 March 2020;

(b) outline of submissions filed 10 September 2025; and

(c) further submissions filed 9 October 2025.

1. On 18 September 2025, a joint list of authorities was filed with the Court.
2. The Amended Application contains the following grounds of review (Grounds of Review):
   1. The Tribunal erred in the exercise of its discretion by failing to properly consider the best interests of the Applicant's children and/or failing to consider evidence relevant to that issue. (Ground 1).

Particulars

1. The Applicant submitted that the cancellation of his visa was not in the best interests of his children.

2. The Tribunal irrationally concluded that there was "no valid reason" for the Applicant's children not to return to Iran to live (at [62]) despite acknowledging the Applicant's evidence that his children "don't really know how to read or write Farsi".

3. The Tribunal failed to properly consider the impact a return to Iran would have on the Applicant's son, including by failing to consider the evidence he gave at the hearing as to the impacts this would have on his social life and education.

4. The Tribunal failed to consider the potential risks to the Applicant's daughter of a move to Iran, including by failing to consider the evidence that the Applicant's wife was sexually abused as a young girl in the small religious community to which the family would have to return.

5. The Tribunal failed to consider the possibility that the Applicant's children would be separated from their father if they remained in Australia but his visa remained cancelled, and the potential impacts this could have on them.

6. The Tribunal failed to treat the best interests of the Applicant's children as a primary consideration as required by law.

7. The Tribunal erred in the exercise of its discretion by failing to properly consider the Applicant's representations as to the effect the cancellation of his visa would have on his wife's mental health and/or failing to consider evidence relevant to that issue. (Ground 2).

Particulars

1. The Applicant submitted that his wife had mental health issues and that the cancellation of his visa would adversely impact her mental health.

2. The Tribunal found that "Iran offers mental health services" and that the Applicant's wife could receive adequate mental health care in Iran (at [66]).

3. The Tribunal failed to consider the Applicant's submission that his wife's mental health issues stemmed from her experiences in the small religious community she came from and that returning to that community would cause her mental health to deteriorate.

4. The Tribunal failed to consider the evidence that the Applicant's wife had previously attempted to commit suicide.

5. The Tribunal failed to consider the possibility of family separation if the Applicant was returned to Iran while his wife and children remained in Australia, and the potential adverse impact this could have on the Applicant's wife's mental health.

6. The Tribunal erred in the exercise of its discretion by failing to properly consider the circumstances in which the Applicant's non-compliance with s 101(b) of the Migration Act 1958 (Cth) occurred. (Ground 3).

Particulars

1. The Tribunal was required to consider "the circumstances in which the non-compliance occurred" (reg 2.41(d) of the Migration Regulations 1994 (Cth)).

2. In considering that issue, the Tribunal referred to the duration of the Applicant's non-compliance (at [40]).

3. Despite referring (at [30]) to the Applicant's evidence that it took him so long to provide the correct information as to his citizenship because he was fearful of what would happen, the Tribunal did not state whether it accepted that evidence and it failed to take it into account when considering the circumstances in which the non-compliance occurred and when determining the weight to be given to the duration of the Applicant's non-compliance.

4. The Tribunal found (at [53]) that the Applicant's family members were complicit in the Applicant's non-compliance and it improperly took their conduct into account when considering the seriousness of the Applicant's non-compliance.

(words in bold added, otherwise as written)

1. The Applicant filed and relied on the following submissions:

(a) Applicant's submissions filed 28 August 2025;

(b) Applicant's further submissions filed 2 October 2025; and

(c) Applicant's further submissions in reply filed 16 October 2025.

1. The Applicant's counsel expanded on the Applicant's written submissions at the Hearing.
2. The Minister filed and relied on the following written submissions:

(a) Minister's submissions filed 10 September 2025; and

(b) Minister's further submissions filed 9 October 2025.

1. The Minister's counsel expanded on the Minister's written submissions at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[55]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it". The court neither consider the merits of the decision nor remakes it.[56] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[57]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[58] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[59] Different kinds of error may overlap.[60] The categories are not closed.[61]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[62] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[63] It has been described as an "undemanding" standard.[64]

1. Section 109 of the Migration Act provided (at the time of the Tribunal's Decision) for cancellation of a visa if incorrect information is provided by the holder of a visa:

109 Cancellation of visa if information incorrect

1. The Minister, after:
   1. deciding under section 108 that there was non-compliance by the holder of a visa; and
   2. considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
   3. having regard to any prescribed circumstances; may cancel the visa.

1. Section 116 - Power to cancel provides:

the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Section 116(2) provided that a Minister is not to cancel a visa under s 116(1) if there are prescribed circumstances in which a visa is not to be cancelled. Section 116(3) provided that if the Minister may cancel a visa under s 116(1) the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

1. Regulation 2.41 of the Migration Regulations 1994 (Cth) (Regulations) provides:

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

1. the correct information;

2. the content of the genuine document (if any);

3. 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;

4. the circumstances in which the non-compliance occurred;

5. the present circumstances of the visa holder;

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

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

8. the time that has elapsed since the non-compliance;

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

10. any contribution made by the holder to the community.

Note Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.

1. The Department's Procedures Advice Manual 3, General visa cancellation powers (PAM3) provides for the matters which delegates of the Minister and the Tribunal should take into account, if relevant, in deciding whether to cancel a visa in exercise of the discretionary power in s 116(1)(b) of the Migration Act.
2. In El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs,[65] Gray J stated:[66]

In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28]- [29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]- [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

1. At the Hearing before me, the Applicant sought to amend his further Amended Application by adding particular (f) in the following terms:

The Tribunal failed to treat the best interests of the Applicant's children as a primary consideration as required by law.

1. Neither party opposed me determining the question of whether to grant leave to amend as part of my judgment, and the matter proceeded on the basis of argument as if leave had been granted.
2. A difficulty with the ground as formulated is that there is clear authority to the effect that in the absence of any express provision, un-enacted international treaty obligations are not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error.[67] However, as can be seen below, the decision in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh,[68] (Teoh) is to the effect that if the Tribunal proposed to make a decision inconsistent with the legitimate expectation that the Convention on the Rights of the Child (CRC) would be applied, it was bound as a matter of procedural fairness to give notice of that.
3. I consider that Particulars (a) to (f) of Ground 1, when read in combination, are sufficient to raise the issue in Teoh, even if they do not, in terms, allege that the failure to apply the CRC amounted to a denial of procedural fairness in the circumstances of the case. Both parties have addressed the Teoh issue in their written submissions. Even though the amended ground does not specifically refer to a breach of an obligation of "procedural fairness", I consider that it is sufficiently close to the mark as to remove any lingering doubt that Particulars (a) to (f) were intended to raise the issue in Teoh.
4. Rule 8.09 of the _Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 202_5 (Cth) provides that at any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
5. The power to grant an amendment is discretionary. The discretion is to be exercised in a manner that "best promotes the overarching purpose"; namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.[69] The central question is whether it is in the interests of justice for the amendment to be granted. The power to grant leave to amend is broad and has the objective of facilitating the curing of errors and omissions so that the real questions in controversy are properly agitated.[70]
6. In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm)[71] (Tamaya), Gleeson J set out in summary form a non exhaustive list of the matters relevant to the discretion of whether or not to grant leave to amend which include:[72]

(a) the nature and importance of the amendment to the party applying for it;

(b) the extent of the delay and the costs associated with the amendment;

(c) the prejudice that might be assumed to follow from the amendment, and that which is shown;

(d) the explanation for any delay in applying for that leave: Aon[73] at [108]; and

(e) the parties' choices to date in the litigation and the consequences of those choices;

(f) the detriment to other litigants in the Court; and

(g) potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

(References omitted)

1. The proposed amendment is of a significant matter that has importance for not just the Applicant but his family members, in particular the Children. It has particular importance in the context of Australia's obligations undertaken under the CRC. These are matters that weigh strongly in favour of allowing the amendment.
2. I take into account the matters set out above, in Tamaya, which might weigh against a grant of leave to amend, such as delay, and explanation for delay, litigation choices, detriment to other litigants as well as the public interest factors identified in Aon.[74]
3. Having regard to the foregoing matters, I am satisfied that it is in the interests of justice that the application for leave to amend be granted. Accordingly, I allow the Applicant's application for leave to amend.

The Tribunal erred in the exercise of its discretion by failing to properly consider the best interests of the Applicant's children and/or failing to consider evidence relevant to that issue.

1. Particulars (a) to (f) of Ground 1 provide:
   1. The Applicant submitted that the cancellation of his visa was not in the best interests of his children.
   2. The Tribunal irrationally concluded that there was "no valid reason" for the Applicant's children not to return to Iran to live (at [62]) despite acknowledging the Applicant's evidence that his children "don't really know how to read or write Farsi".
   3. The Tribunal failed to properly consider the impact a return to Iran would have on the Applicant's son, including by failing to consider the evidence he gave at the hearing as to the impacts this would have on his social life and education.
   4. The Tribunal failed to consider the potential risks to the Applicant's daughter of a move to Iran, including by failing to consider the evidence that the Applicant's wife was sexually abused as a young girl in the small religious community to which the family would have to return.
   5. The Tribunal failed to consider the possibility that the Applicant's children would be separated from their father if they remained in Australia but his visa remained cancelled, and the potential impacts this could have on them.
   6. The Tribunal failed to treat the best interests of the Applicant's children as a primary consideration as required by law.
2. The Amended Ground is:
   1. The Tribunal failed to treat the best interests of the Applicant's children as a primary consideration as required by law.

Whether Tribunal required to apply Art 3(1) of the CRC

1. The Tribunal's Decision provides:[75]

Best Interests of the Children

The Tribunal has taken into consideration the Convention on the Rights of the Child (CROC).

In coming to a decision the Tribunal has taken into consideration the best interests of the two children involved. The applicant's oldest child was born in Iran and holds Iranian citizenship whilst the youngest daughter was born in Australia and holds Iranian and Australian citizenship. The oldest child is entering his first year at secondary college and loves to play soccer. He does not wish to return to Iran and wants to live his life in Australia. After the hearing he showed the Tribunal some certificates he had received. The applicant told the Tribunal that the children don't really know how to read or write Farsi.

Iran offers soccer (they call it football) and plays on the world stage. Tehran has five major teams that play. Tehran also offers museums, cinemas, fitness centres, bowling alleys and all modern day society events. The applicant's son and daughter will be able to attend school and university. Whilst the Tribunal notes that they would prefer to stay in Australia there is no valid reason for the applicant's not to return to Iran to live.

The Tribunal notes DFAT reports that in Iran provides both public and private educational institutes at primary, secondary and university level. Standards in science, technology, mathematics and engineering are among the worlds highest.

The applicant's youngest daughter was born in Australia but is entitled to Iranian citizenship as she was born to Iranian parents. As she is young she will not have as many issues integrating into Iranian society.

1. The circumstances set out in reg 2.41 as prescribed under s 109(1)(c) of the Migration Act do not include the "interests of the child" or "the best interests of the child" as a mandatory consideration for the purposes of the exercise of the power to cancel a visa. Nor is there any requirement in the Regulations to consider the best interests of the child as a "primary consideration" as would be the case if Art 3(1) of the CRC applied.
2. Article 3(1) of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

1. In Teoh,[76] Mason CJ, Deane and Toohey JJ held that an international treaty such as the CRC creates legitimate expectations of compliance by the executive government and administrative agencies for the purposes of domestic administrative law. However, legitimate expectations are not to be equated with binding principles of law, which would bring the provisions of an unincorporated convention into municipal law "by the back door".[77] Nevertheless "if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course."[78]
2. Mason CJ and Deane J observed[79] that a decision maker applying Art 3(1) of the CRC would ask whether the "force of any other consideration outweighed" the best interests of the child.
3. In Wan v Minister for Immigration and Multicultural Affairs,[80] (Wan) the Full Court stated:

An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

(emphasis added)

1. In Le v Minister for Immigration and Multicultural and Indigenous Affairs,[81] French J stated[82] in the context of the power to cancel a visa:

There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration 'in all cases concerning children'. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions - Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the '... established doctrine' that obligations under international treaties '... are not mandatory relevant considerations attracting judicial review for jurisdictional error'. The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law - Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95; (1908) 6 CLR 309 at 363; Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.

(emphasis added)

1. In Snedden v Minister for Justice,[83] Middleton and Wigney JJ[84] held that the fact that the Tribunal chose to respond to the appellants' submissions as to the relevance of the CRC, and to consider whether the matters submitted concerning the child provided "compelling circumstances" did not make the consideration or application of the CRC a mandatory consideration.
2. In Vaitaiki v Minister for Immigration and Ethnic Affairs,[85] (Vaitaiki) Branson J held that the proper focus of the Tribunal should be to identify the result that, in all the circumstances, would overall be "conducive to the best interests of the child".
3. In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[86] (Promsopa) Allsop CJ considered the application of Teoh in the context of a decision made under s 109 of the Migration Act to cancel a visa. His Honour held that because of the "one dimensional" approach that the Tribunal had taken to the assessment of the best interests of the child, by failing to have proper regard to the detriment to the child by a decision to cancel her mother's visa, the Tribunal had failed to take them into account and thus failed to afford procedural fairness as required by Teoh.
4. In DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[87] (DXQ16) Steward J accepted that the Tribunal had taken into account the children's best interests, but, his Honour found that the process of weighing the importance of the needs of the children against the appellants' non-compliance with the Act, to see if one "outweighed" the other, did not appear to have taken place.
5. In Kaur v Minister for Immigration and Border Protection,[88] the Full Court held that, in the absence of any express provision, un-enacted international treaty obligations were not mandatory relevant considerations which, if not considered, would attract judicial review for jurisdictional error.
6. While the decision in Teoh may be subject to re-evaluation having regard to subsequent High Court dicta rejecting the doctrine of legitimate expectation as a basis for discerning a procedural fairness obligation, I accept that it is binding on me, and no party suggested otherwise.[89]
7. I turn then to the facts of the present case.
8. The Tribunal was not required to consider the best interests of a child as "a primary consideration" as a matter of law. However, in accordance with Teoh, if the Tribunal proposed to make a decision inconsistent with the legitimate expectation that the CRC would be applied, it was bound as a matter of procedural fairness to give notice of that.
9. In circumstances where the Tribunal did not put the Applicant on notice of an intention not to treat the best interests of the children as a primary consideration, the critical question here is whether the Tribunal did in fact treat the best interests of the children as a primary consideration.
10. The requirement in Art 3(1) of the CRC for a discretionary decision maker is that "the best interests of the child shall be a primary consideration" which requires those interests to be treated as a primary consideration, but not the only primary consideration.[90]
11. The Applicant contended that:

in substance, [the Tribunal] didn't apply the Convention, and it was required to, and in any event it was a failure to accord procedural fairness to not inform the applicant that it was not going to treat it as a primary consideration in circumstances where the delegate and, indeed, the tribunal on the first pass had done so.

1. In my opinion, while the Tribunal's Decision does not use the qualifier "primary",[91] it is tolerably clear that it did approach the matter on the basis that it was required to take into account the best interests of each of the children as a primary consideration. I reach that conclusion having regard to the fact that the Tribunal's Decision recorded that it had taken into account the CRC.[92] The decision also records that "the Tribunal has taken into consideration the best interest of the two children involved".[93]
2. The critical question is whether the Tribunal did in fact take into account the best interests of each of the Children as a primary consideration; in other words, it is not sufficient that the Tribunal purported to comply with Art 3(1) of the CRC, the question is whether it did so as a matter of fact. Further, it is necessary that the best interests be given "proper, genuine and realistic" consideration. Such an approach would require that the Tribunal consider whether the "force of any other consideration outweighed" the best interests of the children.
3. The Applicant contends that "the Tribunal overlooked significant aspects of the evidence and engaged in irrational reasoning on this important issue".[94]

1. The Applicant contends that the Tribunal did not "refer" to the Son's oral evidence,[95] "engage adequately or at all with the substance of concerns he expressed"[96] or give "consideration" to identified matters.
2. The Applicant notes that while the Tribunal referred to the Wife's evidence,[97] no reference is made to the "short but powerful" evidence provided by the "Applicant's young son" at the hearing.[98]
3. A failure by the Tribunal to refer to evidence does not compel the conclusion that the Tribunal did not consider that evidence.[99] "It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons".[100] Whether a failure to refer to evidence constitutes an error or jurisdictional error depends upon "the importance of the material to the exercise of the Tribunal's function".[101]
4. While the Tribunal's Decision does not refer to the Son's oral evidence in terms, the substance of that evidence is referred to in the decision; for example, his schooling, participation in soccer, desire to remain in Australia, and inability to read and write Farsi.[102] I am not prepared to infer that the Tribunal had no regard to that evidence.
5. The Applicant contends that the Tribunal "did not engage adequately or at all with the substance of the concerns he expressed". This claim would appear to be a claim that the Tribunal did not engage in an active intellectual process in relation to the interests of the Son as a primary consideration.
6. In Carrascalao v Minister for Immigration and Border Protection,[103] Griffiths, White and Bromwich JJ said[104] that "a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made".[105]
7. In Navoto v Minister for Home Affairs[106] the Full Court said:[107]

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote [Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.

1. The Tribunal's Decision provides:[108]

In coming to a decision the Tribunal has taken into consideration the best interests of the two children involved. The applicant's oldest child was born in Iran and holds Iranian citizenship whilst the youngest daughter was born in Australia and holds Iranian and Australian citizenship. The oldest child is entering his first year at secondary college and loves to play soccer. He does not wish to return to Iran and wants to live his life in Australia. After the hearing he showed the Tribunal some certificates he had received. The applicant told the Tribunal that the children don't really know how to read or write Farsi.

1. The Tribunal's Decision also provides:[109]

Iran offers soccer (they call it football) and plays on the world stage. Tehran has five major teams that play. Tehran also offers museums, cinemas, fitness centres, bowling alleys and all modern day society events. The applicant's son and daughter will be able to attend school and university. Whilst the Tribunal notes that they would prefer to stay in Australia there is no valid reason for the applicant's not to return to Iran to live.

1. I am not satisfied having regard to the Tribunal's Decision that the Tribunal did not engage in an active intellectual process or consideration of the interests of the Son as a primary consideration. I am not satisfied that the Tribunal's Decision indicates that it gave no consideration to the likely impact that poor literacy in Farsi would have on his educational prospects, or the consequences for him socially in moving to Iran, or that he would have difficulty engaging in school without literacy in Farsi or that moving to Iran would mean leaving all of his current friends behind, as contended by the Applicant.[110] As indicated above, the Tribunal did consider the impacts on the Son, including on his education,[111] in relation to sport (specifically soccer)[112] and entertainment and cultural facilities.[113]

Failure to consider the interests of the Daughter

1. The Applicant contends that the Tribunal did not "consider the consequences that a move to Iran could have for [the Applicant's Daughter]".[114]
2. The Tribunal's Decision records that it "has taken into consideration the [CRC]".[115] The decision provided that it "has taken into consideration the best interests of the two children involved".[116] The Tribunal noted that the Daughter had Australian citizenship. The Tribunal noted that the Children "do not really know" how to read or write Farsi. The Tribunal also noted their preference to live in Australia, but that there was "no valid reason for the applicant's [sic] not to return to Iran to live".[117] The Tribunal made findings about public and private educational institutions and standards. After referring to the Daughter, the Tribunal concluded that "as she is young she will not have as many issues integrating into Iranian society".[118]
3. I am not satisfied having regard to the Tribunal's Decision that the Tribunal did not engage in an active intellectual process or consideration of the interests of the Daughter. It is apparent from the Tribunal's Decision that it did consider some of the consequences of a move to Iran for the Daughter. Namely, living in a society where she is unable to read or write Farsi, being educated in Iran, the education available, and integrating into society.

1. The Applicant contends that the Tribunal gave no consideration to the possibility that the family might be separated if he was required to return to Iran but his Wife and Children were permitted to remain in Australia.[119]
2. The difficulty with this contention is that it was not the subject of "a substantial and clearly articulated argument",[120] and did not "clearly emerge"[121] from the material or case presented before the Tribunal. The Tribunal's Decision reflects that the case that was presented was on the basis that if the Applicant's visa were cancelled, the whole family would return to Iran; for example, this is evident from submissions concerning the effect of return on the Children and the Wife's mental health. Consistently with this, the premise (that the whole family would return) is evident in the Applicant's written submissions, for example "The review applicant states that that their children would have better prospects for their lives in Australian than in Iran...",[122] and in the submission made to the Tribunal.[123]
3. I am not satisfied that the Tribunal erred by failing to consider family separation.

1. Even though I have rejected the specific challenges made by the Applicant to aspects of the Tribunal's Decision and decision making so far as it concerns the interests of each of the Children, the question remains as to whether the Tribunal did in fact have regard to the interests of each of the Children as a "primary consideration".
2. The question is whether the Tribunal, in purporting to apply Art 3(1) of the CRC, engaged in the weighing process identified by Mason CJ and Deane J in Teoh, by asking the question of whether the "force of any other consideration outweighed" the best interests of the children, or whether, according to Wan, it identified "what the best interests of [the] children required with respect to the exercise of its discretion and then [assessed] whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration."
3. In Vaitaiki, the Full Court concluded that the Tribunal "did not in fact give proper, genuine and realistic consideration to the children's best interests".
4. Burchett J in his judgment stated:

I am compelled to conclude that, not only were the children's best interests not made a primary consideration; they were not given adequate consideration at all. They were not treated as a factor of great significance in the decision whether the appellant should be deported. That they were not is highlighted by the way, in paragraph 21, when reaching his conclusion, the deputy president treats the question, not as what the best interests of the children require him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported. This, of course, was not a matter over which he had any jurisdiction in respect of Australian citizens.

1. Branson J, in her judgment set out her reasons for the conclusion:

...it is noteworthy that nowhere do they seek to identify what would, in the circumstances before the AAT, be the result that would overall be conducive to the best interests of the children. At best they give consideration to the children's best interests in a limited way within a restricted framework. For example, the AAT concluded that the younger children's interests in a "continuing close and daily relationship with their father" would be served by his being deported in circumstances in which they would accompany him to Tonga. It reached this conclusion without, apparently, having regard to the fact that by so accompanying him they would have to leave the community in which they had lived all of their respective lives, start a new life in a new land, and lose the many benefits available to them as citizens of Australia. As to the older children, the AAT concluded that their best interests would be served by remaining in Australia with their mother, should their father be deported. It reached this conclusion without, apparently, having regard to the break up of their family unit which would flow from their father's deportation, with consequential restrictions on their subsequent contact with their father and half-siblings and a likely diminution in their father's capacity to influence and guide them.

1. In Promsopa, Allsop CJ stated:[124]

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.

(emphasis added)

1. In BYF20 v Minister for Immigration, Citizenship and Multicultural Affairs,[125] Judge Skaros concluded that there had not been proper, genuine and realistic consideration to the best interests of the children as a primary consideration:[126]

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.

1. Returning to the present case, a starting point in an assessment of whether the Tribunal had given "proper, genuine and realistic consideration to the children's best interests" would be for the Tribunal to have identified the best interests of each of the children; in particular, whether their best interests are served by living in Australia or by living in Iran. That question is not addressed in terms by the Tribunal.
2. After considering various interests of each of the children, the Tribunal concluded: "whilst the Tribunal notes that they would prefer to stay in Australia there is no valid reason for the applicant's not to return to Iran to live".[127] In framing the question in this way, the Tribunal would appear to shift focus away from the best interests of each of the children as a primary consideration, to a different question, namely whether there were reasons for them not to return. Such an approach subverts the logical starting point for the assessment identified in Teoh, namely what is in the best interests of each of the children.
3. While the Tribunal did subsequently engage in a weighing process ("having regard to all the relevant circumstances, as discussed above"),[128] for example by concluding that "the gravity of the non-compliance is extremely high", it is not apparent that the Tribunal applied the best interests of the children as a primary consideration in that weighing process. The reference to "no valid reason... not to return" strongly suggests that the Tribunal applied the interests of the children in a different manner than that contemplated by Art 3(1) of the CRC.
4. In the premises, I consider that the Tribunal has failed to treat the best interests of each of the children as a "primary consideration", and because it did not give notice to the Applicant of an intention not to apply Art 3(1) of the CRC, breached its procedural fairness obligations to the Applicant.

Irrationality, Illogicality and Unreasonableness

1. Having reached the conclusion that I have concerning the question of whether the Tribunal gave "proper, genuine and realistic consideration to the children's best interests", it is unnecessary for me to separately consider the further contention that the Tribunal's conclusion as it pertains to the children was irrational, illogical or unreasonable.[129] While the two questions are different, they are sufficiently entangled, that having concluded that the Tribunal failed to give "proper, genuine and realistic consideration" to the interests of each of the children as a primary consideration, there is little utility in exploring separately the question of unreasonableness.

1. I am satisfied that jurisdictional error is made out by reference to Ground 1.

The Tribunal erred in the exercise of its discretion by failing to properly consider the Applicant's representations as to the effect the cancellation of his visa would have on his wife's mental health and/or failing to consider evidence relevant to that issue.

Failure to consider Wife's mental health issues

1. Particulars (a) to (d) of Ground 2 provide:
   1. The Applicant submitted that his wife had mental health issues and that the cancellation of his visa would adversely impact her mental health.
   2. The Tribunal found that "Iran offers mental health services" and that the Applicant's wife could receive adequate mental health care in Iran (at [66]).
   3. The Tribunal failed to consider the Applicant's submission that his wife's mental health issues stemmed from her experiences in the small religious community she came from and that returning to that community would cause her mental health to deteriorate.
   4. The Tribunal failed to consider the evidence that the Applicant's wife had previously attempted to commit suicide.
2. The Tribunal's Decision provides:[130]

Wife's mental health

The applicant's wife has mental health issues. She stated she was studying in school but has had depression. She cried during the hearing. The Tribunal received a letter from her physician stating she suffers from generalised anxiety disorder, obsessive compulsive disorder and major depression.

Whilst the Tribunal acknowledges that the applicant's wife has mental health issues Iran offers mental health services which has been integrated into their primary health care system since 1988. The Tribunal considers the applicant's wife can receive adequate mental health care in Iran.

1. The Tribunal's Decision indicates that the Tribunal accepted her evidence of suffering from "mental health issues", specifically those described by her physician. Having accepted that evidence, it was unnecessary for the Tribunal to make findings concerning the cause of the issues described, or previous manifestations of it, such as her suicide attempt. This latter aspect was "subsumed in findings of greater generality".[131]
2. The Applicant submits that the potential impact of family separation on his Wife arose from the Tribunal's acceptance that she "has mental health issues".[132] The Applicant submits that this was not considered by the Tribunal and if adequately considered, greater weight might have been placed on this matter leading to a different overall conclusion.
3. The Applicant submits that the Tribunal erred by failing to properly consider claims made in relation to the effect the Visa cancellation would have on his Wife's mental health. The Applicant contends that his Wife's concern related to the "community she comes from"[133] as a result of sexual harm experienced as a child.
4. The concern relating to community was not the subject of any written or oral submission made at the hearing before the Tribunal, rather it appears to have been raised in written submissions submitted to the previous Tribunal (2017 Submissions). The Applicant contends that the Tribunal was required to consider the 2017 Submissions that were on the Tribunal's file and never abandoned.
5. Even though the 2017 Submissions formed part of the Tribunal's file, I do not consider that they constituted "a substantial and clearly articulated argument"[134] in the context of the second hearing. By letter from the Tribunal dated 21 October 2019, the Applicant was invited to attend the second hearing. The invitation letter provided "your representative should provide a written submission setting out all claims made and maintained by you by 15 January 2020" (emphasis added). The Applicant provided, amongst other things, a written submission dated 20 January 2020 prepared by his Representative, and a letter from a general practitioner setting out the Wife's mental health conditions. Neither document specifically identified any concern that the Wife had that was related to the "community she comes from".
6. In circumstances where it was not raised in the documentation or oral submissions made in respect of the second Tribunal hearing, I do not consider that the Tribunal was required to address that concern. Accordingly, the Tribunal did not err in failing to refer to it in the Tribunal's Decision.
7. I do not consider that the Tribunal erred as alleged in Particulars (a) to (d) of Ground 2.

The Tribunal failed to consider the possibility of family separation if the Applicant was returned to Iran while his wife and children remained in Australia, and the potential adverse impact this could have on the Applicant's wife's mental health.

1. As set out above, under the heading "Ground 1", "Failure to consider family separation", the claim that the Tribunal failed to consider the possibility of family separation if the Applicant was returned to Iran while his Wife and children remained in Australia was not the subject of "a substantial and clearly articulated argument",[135] and did not "clearly emerge"[136] from the material or case presented before the Tribunal. The contention that family separation was an "obvious potential outcome" on the basis that the Daughter alone was an Australian citizen,[137] or that the Wife and Son's visas would be "considered for cancellation",[138] did not compel the Tribunal to consider it. It is insufficient that such a claim "might" emerge from the material.[139]
2. I do not consider that the Tribunal erred as alleged in Particulars (e) of Ground 2.

1. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

The Tribunal erred in the exercise of its discretion by failing to properly consider the circumstances in which the Applicant's non-compliance with s 101(b) of the Migration Act 1958 (Cth) occurred.

1. Particulars (a) to (c) of Ground 3 are:
   1. The Tribunal was required to consider "the circumstances in which the non-compliance occurred" (reg 2.41(d) of the Migration Regulations 1994 (Cth)).
   2. In considering that issue, the Tribunal referred to the duration of the Applicant's noncompliance (at [40]).
   3. Despite referring (at [30]) to the Applicant's evidence that it took him so long to provide the correct information as to his citizenship because he was fearful of what would happen, the Tribunal did not state whether it accepted that evidence and it failed to take it into account when considering the circumstances in which the non-compliance occurred and when determining the weight to be given to the duration of the Applicant's non-compliance.
2. The Tribunal's Decision provides:[140]

At the hearing the applicant said it took him so long to provide the correct information as he was fearful of what would happen. He said he is a Faill Kurd and that he was working in Iran in scrap metal recycling.

The applicant's wife also provided evidence at the hearing. The Tribunal asked her if she knew her husband had provided false information and she said she didn't know. When asked if she knew it was wrong she said it was the wrong thing but she was fearful.

...

The circumstances in which the non-compliance occurred - the circumstances in which the non-compliance occurred. The applicant has continued to provide false and misleading information since the day he arrived in 2009 until 2020.

1. The Tribunal addressed "the circumstances in which the non-compliance occurred" by stating that the Applicant had "continued to provide false and misleading information since the day he arrived in 2009 until 2020",[141] a period of around 11 years, a matter that it characterised at the end of the reasons as having "extremely high" "gravity".[142] The Tribunal also referred to the Applicant's evidence that his delay in providing correct information was because he was "fearful of what would happen".[143]
2. The Applicant's challenge in Particulars (a) to (c) of Ground 3 is that "the Tribunal did not state whether it accepted that evidence and it failed to take it into account when considering the circumstances in which the non-compliance occurred and when determining the weight to be given to the duration of the Applicant's non-compliance."
3. Having regard to the Tribunal's reasoning as to matters it had regard to and placed significant emphasis on, and the period during which the non-compliance occurred, it cannot be said that the Tribunal failed to have any regard to its obligation to consider "the circumstances in which the non-compliance occurred".[144] Further, the Tribunal's Decision also records the Applicant's explanation for the non-compliance,[145] but the reasons which focus on the period of non-compliance, is sufficient indication that it did not accept that explanation.
4. I do not consider that the Tribunal erred as alleged in Particulars (a) to (c).

The Tribunal found (at [53]) that the Applicant's family members were complicit in the Applicant's non-compliance and it improperly took their conduct into account when considering the seriousness of the Applicant's non-compliance

1. The Tribunal's Decision provides:[146]

The Tribunal has weighed all the evidence and arguments presented in this case. The Tribunal feels compassion for the family and in particular the children. The applicant's wife and oldest child will have their visas cancelled consequentially under s.140 of the Migration Act.

The Tribunal is aware of the impact this cancellation affirmation will have on the family. However, the Tribunal has placed weight on the fact that the applicant knowingly continued to tell the same untruths over and over again, year after year, and was complicit with his family members who are in Australia in continuing to claim these falsehoods. The applicant has had no regard for the integrity of the migration program and has not presented any claims for protection based on the truth. The Tribunal also notes that the applicant's wife was also aware of these untruths and remained silent. When asked if she knew it was wrong she said she didn't know she was just fearful.

1. The Applicant submits that the Tribunal gave improper weight to the conduct of the Applicant's family members in evaluating the seriousness of the Applicant's own non-compliance.[147] The Applicant notes that at the hearing, the Tribunal asked the Applicant what his brother[148] and sister[149] had told immigration officials when coming to Australia. The Applicant submits that these queries could not have been relevant to the seriousness of his non-compliance. He submits that the Tribunal's focus on his Wife's awareness of his non-compliance was misguided.[150] The Applicant submits that his Wife's knowledge on this issue was not a matter reasonably relevant to the assessment of the seriousness of his non-compliance.
2. The Applicant contends in the alternative that the Tribunal gave less weight to the impact of the Visa cancellation on the Applicant's family on the basis that they were "complicit" in his non-compliance.[151] The Applicant submits that if this was the case, the Tribunal failed to distinguish between the Wife and Children. The Applicant submits that the Tribunal's finding overlooked the Son's oral evidence ("it is very hard for me to grasp why I should pay for the mistake my dad has done").[152] The Applicant submits that there was no evidence that his Children were in any way complicit in his non-compliance.
3. The first point to note is that the reasons sought to be challenged in Particular (d) of Ground 3 are located under the heading "Consequential cancellation", indicating that the Tribunal was considering the impact on other persons, including family.
4. I do not accept the Applicant's contention that the Tribunal failed to distinguish between the Wife and his Children when making findings concerning "complicity". The family members that the Tribunal referred to were "elder siblings who arrived in Australia before him".[153] In making a finding of complicity, the Tribunal focussed on the role of the Applicant, rather than family members: "the applicant knowingly continued to tell the same untruths over and over again, year after year, and was complicit with his family members who are in Australia in continuing to claim these falsehoods" (emphasis added). The Tribunal referred separately to the conduct of the Wife, namely that she "was also aware of these untruths and remained silent".[154] The Tribunal's Decision does not contain any indication that it regarded the children as being complicit in the Applicant's non compliance.
5. The Tribunal was entitled to place significant weight on the Applicant's knowing provision of false information over a prolonged period of time in relation to the cancellation decision (a matter it later characterised as having "extremely high" "gravity").[155] That was plainly a matter that was to be weighed against the impact of other consequential cancellation. To the extent that the Tribunal took into account the fact that the Applicant was complicit with other family members in assessing the gravity of his conduct was a matter that was open to the Tribunal. I accept the Minister's submissions that there is nothing irrational or illogical about the Tribunal's reasoning in this regard.[156] The question of weight to be given to the evidence and circumstances was a matter for the Tribunal, and not for the Court.
6. It was also open to the Tribunal, when considering the consequences of cancellation, to give separate consideration to the Wife as a person likely to be affected. That consideration was logically affected by her own silence in the face of the untruths being told by the Applicant. The Tribunal also considered separately the impact on the Wife's mental health of a return to Iran under the heading "Wife's mental health".[157]
7. Further, the Tribunal indicated that it had regard to consequential cancellation on both the Wife and the Children when recording that it felt "compassion for the family and in particular, the children". The Tribunal noted that "the applicant's wife and oldest child will have their visas cancelled" under s 140 of the Migration Act if the Applicant's visa was cancelled.[158]
8. I do not consider that the Tribunal erred as alleged in Particular (d).

1. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

1. As jurisdictional error has been established (on Ground 1), the Tribunal's Decision ought to be quashed and the matter should be remitted to the Tribunal for reconsideration according to law.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was successful, the Applicant sought costs in the scale amount of $9,097.93 plus $272.40 on account of disbursements.[159] I am satisfied that the Applicant is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[160] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 24 September 2025, Order 1.

[14] Being a non-statutory process used by the Department to assess international non-refoulement obligations outside of the Department's protection visa process.

[20] Affidavit of Tessa Maybery affirmed 26 August 2025, 43-44 (Maybery Affidavit).

[22] Maybery Affidavit, 129-130, Exhibit TMM-2.

[26] Orders made by Judge Hartnett (as her Honour Justice Hartnett was then) on 11 January 2019, Orders 1 and 2.

[27] CB 174-175; failure to comply with s 426(3) of the Migration Act 1958 (Cth) (Migration Act).

[38] CB 223 [34]-[35]; s 107 of the Migration Act.

[39] Noting that there are no mandatory cancellation circumstances prescribed under s 109(2) of the Migration Act.

[40] CB 224-227; see reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations).

[45] Subdivision C of Division 3 of Part 2 of the Migration Act.

[47] CB 224-225 [46]-[47] and [48]-[49].

[55] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[56] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[57] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[58] Plaintiff S157/2002.

[60] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[63] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[64] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[65] [2004] FCA 1038; (2004) 142 FCR 43.

[67] Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235.

[68] [1995] HCA 20; (1995) 183 CLR 273.

[69] Section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42].

[70] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) at [14].

[71] [2015] FCA 1098.

[73] [2009] HCA 27; (2009) 239 CLR 175 at [108].

[74] [2009] HCA 27; (2009) 239 CLR 175.

[76] [1995] HCA 20; (1995) 183 CLR 273.

[80] [2001] FCA 568; (2001) 107 FCR 133 (Wan) at [32].

[81] [2004] FCA 875 at [59].

[83] [2014] FCAFC 156; (2014) 230 FCR 82.

[85] [1998] FCA 5; (1998) 150 ALR 608.

[86] [2020] FCA 1480 at [61]- [71].

[87] [2020] FCA 1184 at [55].

[88] [2017] FCAFC 184; (2017) 256 FCR 235.

[89] Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141; (2021) 286 FCR 89 at [42] - [44].

[90] Nweke v Minister for Immigration and Border Protection [2013] FCAFC 79; (2013) 136 ALD 235 at [29].

[91] As was the case in Wan at [31].

[94] Applicant's submissions at [29].

[95] Applicant's submissions at [30].

[96] Applicant's submissions at [32].

[98] Maybery Affidavit, Exhibit TMM-4, Transcript 16:1-17:14.

[99] ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228.

[100] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 (WAEE) at [47].

[101] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2012) 212 FCR 99 at [77] and [111].

[103] [2017] FCAFC 107; (2017) 252 FCR 352.

[105] See also in CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; (2019) 272 FCR 131 Allsop CJ, Kenny and Snaden JJ at [76].

[106] [2019] FCAFC 135.

[110] Applicant's Submissions at [33].

[114] Applicant's Submissions at [34].

[119] Applicant's Outline of Submissions at [41].

[120] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (Plaintiff M1/2021) at [22]-[27].

[121] Compare NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [68].

[125] [2025] FedCFamC2G 1388.

[129] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

[133] Maybery Affidavit, Exhibit TMM-2, pp 129-130.

[134] Plaintiff M1/2021 at [22]-[27].

[135] Plaintiff M1/2021 at [22]-[27].

[138] Section 140(2) of the Migration Act.

[140] CB 223 [30]-[31] and 224 [40].

[148] Maybery Affidavit, Exhibit TMM-4, Transcript 4:24-33.

[149] Maybery Affidavit, Exhibit TMM-4, Transcript 7:7-20.

[150] Maybery Affidavit, Exhibit TMM-4, Transcript 8:25-35, 17:24-18:9.

[152] Maybery Affidavit, Exhibit TMM-4, Transcript 17:2-3.

[159] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[160] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.