BXY20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 543

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 4 April 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 1 April 2020. The Tribunal affirmed the decision of a delegate of the first respondent cancelling the applicant's protection (subclass 866) visa under s 109 of the Act.
2. For the reasons that follow, the application is dismissed.

1. Section 109(1) of the Act provides:

(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;

1. In relation to the reference to "prescribed circumstances" in s 109(1)(c), reg 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:

(a) the correct information;

(b) the content of the genuine document (if any);

(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

(d) the circumstances in which the non‑compliance occurred;

(e) the present circumstances of the visa holder;

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

(g) any other instances of non‑compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non‑compliance;

(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

1. The Procedures Advice Manual, known as PAM3, sets out Departmental policy concerning provisions of the Act and Regulations. In relation to the discretionary power to cancel a visa in s 109 of the Act, PAM3, after noting that the matters prescribed in reg 2.41 of the Regulations must be taken into account, continues under the heading "Matters that should be taken into account":

It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s 107 notice:

• Whether there are persons in Australia whose visas would , or may, be cancelled under s 140 ...

• Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

  • if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children ...

  • Whether there are mandatory legal consequences to a cancellation decision ...

  • Any other relevant matters ...

1. The following background is based on information in a Court Book (CB) tendered at the hearing in this Court on 1 April 2025.
2. On 16 April 2010, the applicant, her husband and two infant children first arrived in Australian waters as illegal maritime arrivals: CB 30, 159.
3. On 29 June 2010, the applicant and her husband made separate requests for a refugee status assessment: CB 27-44 (applicant) and CB 64-84 (husband). The applicant, in support of her application, relied on her "statement" which was taken to be a statutory declaration of her husband (CB 99-101) in which the husband:

(a) claimed that he and the applicant were stateless Faili Kurds; and

(b) set out various incidents of persecution and discrimination he claimed had occurred to him and his wife in Iran because they were stateless Faili Kurds.

1. On 25 August 2010, an officer of the Department of Immigration and Citizenship (Department) found, in respect of the refugee status assessments made by the applicant and her husband, that they met the definition of a refugee as set out in the Convention relating to the Status of Refugees: CB 110-123.
2. It appears that not long before 6 April 2011, the first respondent permitted the applicant and her husband to lodge protection visa applications.
3. On 12 April 2011, the applicant applied for a protection visa: CB 125-153. She claimed to be a stateless Faili Kurd, born in Iraq, but most recently residing in Iran. In relation to her reasons for claiming protection, she expressly relied on her husband's statutory declaration referred to in paragraph 8 above: CB 141-144. Although it is not clear from documents before the Court in this proceeding, presumably the applicant's husband also applied for a protection visa on about the same day.
4. On 13 April 2011, an officer of the Department made a decision granting the applicant, her husband and their two children protection visas: CB 154-157.
5. On 28 April 2015 (CB 159), the applicant and her husband submitted applications to obtain Australian citizenship by conferral. On 28 November 2016, the applicant and her husband were separately interviewed: CB 282 [13(a)]. During the husband's interview, he disclosed that he and the applicant were both born in Iran as Iranian citizens of Faili Kurdish ethnicity: CB 282 [13(b)]. Shortly afterwards, the husband provided to the Department scanned copies of Iranian birth certificates and Iranian national identity cards issued to the applicant and husband: CB 282 [13(c)].
6. On 4 February 2019, the Department sent the applicant's husband a Notice of Intention to Consider Cancellation (NOICC) in respect of his protection visa pursuant to s 107 of the Act: CB 283 [13(e)]. On or shortly after 27 February 2019, the husband responded to the NOICC. Although the information does not appear in the Court Book, it appears that a delegate of the first respondent made a decision to cancel the husband's protection visa.
7. On 10 April 2019, the Department sent the applicant a NOICC in respect of her protection visa pursuant to s 107 of the Act, and invited her to comment: CB 217-226.
8. On 23 April 2019, the applicant responded to the NOICC: CB 231-246. She admitted that she and her husband had provided incorrect information in their protection visa applications in 2011, and conceded that the decision to grant her a protection visa in April 2011 was substantially based on the incorrect information. She then provided reasons and information in support of a request that the first respondent not exercise the discretionary power under s 109 of the Act to cancel the applicant's visa.
9. On 3 May 2019, a delegate of the first respondent made a decision to cancel the applicant's protection visa: CB 250-266. The delegate found that the applicant had not complied with s 101 of the Act, as set out in the NOICC, and the non-compliance outweighed discretionary reasons not to cancel the visa.
10. On 21 May 2019, the applicant applied to the Tribunal for review of the delegate's decision to cancel her visa: CB 268-269.
11. The applicant's husband also applied to the Tribunal for review of a decision of the delegate to cancel his visa: CB 301.
12. On 7 February 2020, the Tribunal invited the applicant's husband and two children to attend a hearing on 4 March 2020 (CB 301-302) which hearing date was subsequently adjourned to 11 March 2020 (CB 311-312).
13. On 4 March 2020, the representative of the applicant's husband and two children, who appeared to also be the representative of the applicant, provided a submission and materials to the Tribunal in preparation for the hearing on 11 March 2020: CB 318-367. The materials included a statutory declaration of the applicant dated 2 February 2020: CB 336-338.
14. On 11 March 2020, the applicant and her husband, accompanied by their representative, attended a hearing before the Tribunal and were interviewed concurrently: CB 280 [3], 368. The Court Book does not contain a letter from the Tribunal to the applicant, in contrast to the letters to the husband and two children dated 7 February 2020 and 3 March 2020, inviting the applicant to attend a hearing. No complaint was made about this at the hearing in this Court on 1 April 2025.
15. On 1 April 2020, the Tribunal made a decision affirming the delegate's decision to cancel the applicant's visa: CB 279-295.
16. The Tribunal made a separate decision for the applicant's husband and children: CB 280 [3] (Separate Decision). At the hearing in this Court on 1 April 2025, the applicant's counsel stated there is a hearing in this Court of a judicial review application in respect of the Separate Decision in May 2025 and the single ground in the applicant's matter (see paragraph 32 below) is also a ground in the judicial review application in respect of the Separate Decision. The parties did not explain to the Court at the hearing on 1 April 2025 why, in light of what appears to be a significant overlap between issues in the applicant's judicial review application and the judicial review application of the husband and two children, the two matters were not heard concurrently in this Court.

1. The Tribunal at [42] found "the applicant to lack credibility as a witness" and "she knowingly provided false information regarding her name, date of birth and citizenship status in order to be granted a protection visa and continued with this fabrication until November 2016".
2. The Tribunal at [46] noted that neither the applicant nor her husband are stateless Faili Kurds born in Iraq and added that "the claims that are outlined in the applicant's husband's statutory declaration ... are also fabricated". It followed that, as found by the Tribunal at [47]-[48], there was non-compliance by the applicant with s 101 of the Act, as a result of which the power to cancel the applicant's visa under s 109 of the Act was enlivened.
3. The Tribunal at [49]-[63] made findings concerning the prescribed circumstances in reg 2.41 of the Regulations. Among other matters, the Tribunal at [50] found "the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program" and gave "significant weight to the fact that the applicant has provided incorrect information", at [53] found that the applicant "willingly provided this false information", and at [56] found that "the applicants could all enter and reside in Iran as citizens of that country and that there is family support available to them there". The Tribunal at [61] referred to "the serious deception practised by the visa-holder" on the Department and added that, in circumstances where the applicant had obtained social welfare benefits following her deception, "she has also accessed social welfare benefits that would not normally have been open to her if she had been truthful in the first place".
4. The Tribunal at [64]-[73] considered Departmental policy in PAM3 referred to in paragraph 5 above, specifically:

(a) at [65]-[69] - the likely consequences of cancelling the visa, including the possible breach of Australia's international obligations; and

(b) at [69]-[70] - the best interests of the three children of the applicant and sponsor.

1. The Tribunal at [75] concluded that "having regard to all the relevant circumstances ... the Tribunal concludes that the visa should be cancelled".

1. On 4 May 2020, the applicant lodged an application in this Court which sought judicial review of the Tribunal's decision.
2. Following a period of inactivity, on 18 February 2025 the parties were notified that the matter was listed for hearing on 1 April 2025.
3. On 3 March 2025, the applicant filed a further amended application (Amended Application) which pressed a single ground of review (reproduced as written):
   1. The Second Respondent (Tribunal) made a jurisdictional error by failing to give proper consideration to, or being legally unreasonable with respect to, the best interests of the Applicant's children.
      1. The Tribunal was obliged to give proper consideration to the best interests of the Applicant's children as the Applicant had expressly raised those interests, including by reference to the Convention on the Rights of the Child: Kolora v Minister for Immigration [2023] FCA 1583 at [123]- [128];
      2. The Tribunal may fail to give such consideration where it does not have regard to the best interests of the children for and against cancellation of the visa and instead approaches those interests through the prism of cancellation of the visa: RGCZ v Minister for Immigration [2022] FCAFC 201 at [38], [44];
      3. The Tribunal may make a jurisdictional error by engaging in illogical or irrational reasoning in a manner material to the ultimate decision: CGA15 v Minister for Immigration [2019] FCAFC 46; 268 FCR 362 at [51];
      4. The Tribunal at paragraph 77 of its decision failed to give proper consideration to the best interests of the children. It approached the best interests on the basis that the family unit should remain together by returning to Iran instead of asking whether those interests indicated that the family unit should remain in Australia. The Tribunal also took into account a matter irrelevant to the bests interests of the children being the fact that the children had been in Australia due to their parents' deceptive conduct;
      5. The Tribunal likewise reasoned illogically by approaching the best interests of the children on a weighted premise, being their return to Iran, and holding against the children deceptive choices made on their behalf by their parents;
      6. The Tribunal failed to consider the particular interests of one of the children who was an Australian citizen: RGCZ v Minister for Immigration [2022] FCAFC 201 at [54].
4. On 3 March 2025, the applicant also filed a written submission (AS). On 14 March 2025, the first respondent filed a written submission.

1. At the hearing in this Court on 1 April 2025, Oliver Jones of counsel appeared for the applicant and Tim Reilly of counsel appeared for the first respondent. Counsel made oral submissions which supplemented their written submissions. The submissions are referred to below.

1. Mr Jones, in this Court proceeding, did not challenge any of the significant adverse findings by the Tribunal concerning the applicant, such as that the applicant "knowingly provided false information regarding her name, date of birth and citizenship status in order to be granted a protection visa and continued with this fabrication until November 2016" (at [42] and [53]), that she "willingly provided this false information" (at [53]), and that "the deception practised by the visa-holder" was serious (at [61]). Instead, Mr Jones focused on the manner in which the Tribunal took into account the interests of her three children:

(a) two of whom were born in Iran; and

(b) one of whom was born in Australia and was an Australian citizen by the date of the Tribunal's decision in April 2020.

[9] ... where the applicant raises the best interests of the children, particularly by reference to the Convention on the Rights of the Child, as part of his or her case for the favourable exercise of a statutory function, and the best interests are relevant to the statutory function, then the decision-maker is obliged to consider the best interests. A want of proper consideration, in the sense of an active intellectual engagement with the best interests, is a basis for a conclusion of jurisdictional error.

[10] ... It is also readily apparent that the applicant raised the best interests of the children as a matter for the favourable exercise of the discretion ...

[11] The question then is whether there was a want of proper consideration as to the best interests of the children in the present case ...

1. I agree with Mr Jones' written submission up to this point.
2. To determine whether there was a want of proper consideration by the Tribunal as to the best interests of the children, it is appropriate to consider:

(a) the evidence and submissions provided by the applicant to the Tribunal concerning her three children; and

(b) the manner in which the Tribunal considered, in its reasons for decision, their interests.

1. In relation to the evidence and submissions provided by the applicant to the Tribunal concerning her three children, first, in April 2019 the applicant, through her representative, provided a statutory declaration to the Tribunal in which, in paragraph 30 (CB 235), she "ask[ed] the decision-maker to consider Australia's obligations under the Convention on the Rights of the Child [and] to consider the best interests of the children when exercising the discretionary power under section 109 of the Migration Act". The applicant, in paragraph 31 (see CB 235-237), provided a combination of evidence and submissions concerning the three children. The thrust of the evidence and submissions was that the children were "fully integrated into the Australian community", "they will have great difficulty if they had to try to start over in Iran", and "a return to Iran ... will stunt their development". Second, in March 2020 the applicant's representative provided a submission to the Tribunal which included a section on "Rights of the child": see CB 321-322. In addition to repeating points stated by the applicant in her April 2019 statutory declaration, the representative added that it would be a breach of Australia's treaty obligation for the applicant and her husband, if their visas were cancelled, to leave their child who was an Australian citizen, in Australia.
2. In relation to the manner in which the Tribunal considered the interests of the children in its decision, first, the Tribunal at [54], in considering "the present circumstances of the visa holder" as required by reg 2.41(e) of the Regulations, stated:

[54] The visa-holder has her children with her in Australia and has had one other child (Sarah) since they have been in Australia. The child is an Australian citizen and, by virtue of Iranian citizenship laws and her parent's citizenship status she is also an Iranian citizen. I have noted that there is a medical certificate that indicates that Sarah has a congenital heart condition and had liver surgery in 2015.

1. Second, the Tribunal at [69]-[70], in considering the matters in PAM3 in paragraph 5 above, stated:

[69] ... I have also had regard to the Conventions on the Rights of the Child and do not accept that the visa cancellation and subsequent return of either the visa holder or her children to Iran would breach any of Australia's non-refoulment obligations.

[70] I have considered the best interests of the children, but find that they would be best met by maintaining the integrity of the family unit and all returning to Iran. The children (including the Australian citizen) are all able to access Iranian passports and could return to Iran as the one family unit. Whilst I note that the children have attended Australian primary schools for several years the reality is that they were only able to do so because their parents fabricated their identities, nationality and claims. The children are still young and would be able to integrate back into Iranian society. I do not accept that the children couldn't go to school because the family was poor, given that free education is available to Iranians from primary through to tertiary level. They have extended family member still in Iran that could assist in the re-integration.

1. Mr Jones accepted that the Tribunal considered the applicant's submissions and evidence concerning the best interests of her children. His complaint was that the Tribunal did not properly consider their best interests. He stated, with general reliance on Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1583 and heavy reliance on RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201; 295 FCR 365 (RGCZ), that the Tribunal did not properly consider the best interests of the children in the following ways:

(a) The "Tribunal did not ask whether [the best interests of the children] would be met by refusing to cancel the applicant's visa ... Rather the Tribunal premised its discussion upon the family unit remaining together by a return to Iran": AS [13].

(b) The Tribunal "introduced a matter not relevant to the best interests of the children, being the moral culpability of choices made by parents on behalf of their children and over which the children had no control": AS [13].

(c) The Tribunal "fail[ed] to consider the best interests of each child individually where those interests significantly differed" because the youngest child, as an Australian citizen, would not be able to "exercise rights forming part of Australian citizenship" if her parents' visa was cancelled and she returned to Iran with her parents: AS [15].

1. There are a number of difficulties with Mr Jones' contentions. First, as discussed with Mr Jones at the hearing on 1 April 2025, the statutory context in RGCZ was significantly different to the statutory context in the present matter. In RGCZ, the Tribunal was bound to comply with Direction No 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90) issued under s 499 of the Act. Paragraph 8.3(1) of Direction 90 stated:

Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

1. In that statutory context, the Full Court stated at [44]:

We accept the appellant's submission that the best interests of the children were not to be viewed through the prism of what the appellant would do if the visa was refused. Paragraph 8.3(1) of the Direction required the Tribunal to engage with the question of whether the children's best interests were served by the grant or refusal of the visa, not by hypothetical considerations of how the appellant might act if the visa was refused. The Tribunal needed to make a determination in relation to this question. Paragraph 8.3(1) of the Direction constituted a mandatory relevant consideration. The use of the word "must" indicates that the Tribunal was positively required to make a determination about whether refusal under s 501 of the Act was, or was not, in the best interests of children affected by the decision.

1. It was also in that statutory context, and in circumstances where there was a "stark" (RGCZ at [49]) difference between the interests of the two children the subject of the Tribunal's decision in that matter, that the Full Court stated at [54]:

We accept, for the reasons submitted by the appellant, that although the Tribunal appears to have recognised that the best interests of each child needed to be given individual consideration, there was no explicit consideration of the children's differential interests. Insofar as the Tribunal noted the particular challenges facing the eldest child, this was insufficient to constitute compliance with the Direction in the absence of a determination about whether the grant or refusal of the visa was, or was not, in the best interests of the children having regard to their differential interests.

1. In the present matter, the Tribunal was required to consider the "prescribed circumstances" (see s 109(1)(c)) in reg 2.41 and the "four matters" (see paragraph 5 above) in PAM3. Notably, in a context where PAM3 stated that "delegates are obliged to treat as a primary consideration the best interests of the children", Mr Jones expressly disavowed a contention that the Tribunal failed to properly apply Departmental policy in PAM3.
2. Second, in relation to the matter in paragraph 42(a) above, Mr Jones, with heavy reliance on RGCZ at [44], contended that the "Tribunal did not ask whether [the best interests of the children] would be met by refusing to cancel the applicant's visa". However, as explained above, RGCZ involved a different statutory scheme. The statutory scheme in the present matter did not require the Tribunal to make a determination concerning the matter in paragraph 8.3(1) of Direction 90. Mr Jones was unable to identify a decision binding on this Court, or a decision of this Court, in which the approach explained in RCGZ was applied in the context of judicial review of a visa cancellation under s 109 of the Act. I agree with the first respondent's written submission that "the Tribunal was not required ... to engage in the binary exercise posited in RGCZ at [44] by considering whether cancellation or non-cancellation was in the children's best interests, as opposed to whether cancellation would indicate a breach of" the Convention on the Rights of the Child. This aspect of Mr Jones' complaint is not made out.
3. Third, in relation to the matter in paragraph 42(b) above, Mr Jones contended that the Tribunal "introduced a matter not relevant to the best interests of the children, being the moral culpability of choices made by parents on behalf of their children and over which the children had no control". The Tribunal at [70], in an observation which Mr Jones accepted was correct, stated that the children "were only able to [attend Australian primary schools] because their parents fabricated their identities, nationality and claims". I consider that the Tribunal, by this observation, did not discount the best interests of the children because of their parents' behaviour. The Tribunal, in the last sentence of [69], did not accept that the visa cancellation and subsequent return of the applicant and her children to Iran "would breach any of Australia's non-refoulement obligations". The Tribunal's reference to "Australia's non-refoulment obligations" appears to include the Convention on the Rights of the Child. The Tribunal at [70] provided reasons for its finding in the last sentence of [69]. On a fair reading of [70], the Tribunal's observation about the parents' behaviour was not a matter on which the Tribunal relied to support its findings:

(a) in the last sentence of [69] that the visa cancellation and subsequent return of the applicant and her children to Iran would not "breach any of Australia's non-refoulement obligations"; or

(b) in the first sentence of [70] that "the best interests of the children ... would be best met by maintaining the integrity of the family unit and all returning to Iran".

1. This aspect of Mr Jones' complaint is not made out.
2. Fourth, in relation to the matter in paragraph 42(c) above, Mr Jones, with heavy reliance on RGCZ at [54], contended that the Tribunal failed to individually consider the best interests of the youngest child who was an Australian citizen. However, it is clear from the Tribunal's reasons at [54] and [70] that the Tribunal was aware that the youngest child was an Australian citizen and took this into account in considering the best interests of the children, and the Tribunal at [54]-[55] considered another matter unique to the youngest child, being a congenital heart condition. Further, Mr Jones' complaint is that the aspect of the youngest child's individual interests which the Tribunal failed to consider was that, if the parents' visas were cancelled, the youngest child was "required to renounce, or at least not exercise rights forming part of, Australian citizenship": AS [15]. However:

(a) I disagree that the youngest child was required to renounce Australian citizenship. There was no evidence before the Tribunal, and no submission made to the Tribunal, that the youngest child would be required to renounce Australian citizenship.

(b) I also do not agree that the youngest child was required to not exercise rights forming part of Australian citizenship. For example, it was open to the applicant and her husband to leave the youngest child with a trustworthy family friend in Australia who could be the child's guardian. That the parents were unlikely to do this does not mean the child was "required ... to not exercise [a] right forming part of Australian citizenship". Further, the applicant did not make a submission to the Tribunal that the youngest child would be "required to ... not exercise rights forming part of Australian citizenship". To the contrary, the applicant suggested in a submission to the Tribunal that the parents may leave the youngest child in Australia: CB 322 [12].

1. This aspect of Mr Jones' complaint is not made out.
2. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision. Since this is the only ground in the Amended Application, the application must be dismissed.

1. I will hear submissions on costs at the delivery of judgment.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.