1711144 (Refugee)

1711144 (Refugee) [2020] AATA 3524 (14 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711144
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:James Lambie
DATE:14 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 14 July 2020 at 11:08am
CATCHWORDS
REFUGEE – cancellation – Protection visa – Sri Lanka – incorrect information provided in protection application – claimed to be a Tamil woman whose husband is missing – her husband was never missing – not a members of the LTTE – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101,107,109, 140, 375A,415, 438
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that Ms [A] had not complied with s. 101(b) in respect of answers she had provided on her protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 24 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
(a)at question 43 of Part C of the form 866, which states: “why did you leave that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she left Sri Lanka because she feared being persecuted because she is a Tamil woman whose husband is missing and this also put her at risk of sexual assault; whereas in actual fact her husband was never missing and that she continued to have the protection of being in a family unit until she decided to depart Sri Lanka;
(b)at question 44 of Part C of the form 866, which states: “have you experienced harm in that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she was harassed by the police and the CID after she made enquiries about her missing husband; whereas her husband was not actually missing but rather he was residing with her, suggesting that her claims regarding the circumstances of the claimed harm and harassment did not happen and are incorrect;
(c)at question 45 of Part C of the form 866, which states: “what do you fear may happen to you if you go back to that country?”, she answered: “please see statutory declaration attached”. In that document, she stated that she feared being persecuted because she is a Tamil woman whose husband is missing and that this also put her at risk of sexual assault; this is incorrect as in actual fact her husband was never missing and that she continued to have the protection of being in a family unit until she decided to depart Sri Lanka;
(d)at question 46 of Part C of the form 866, which states: “what do you think will happen to you if you go back?”, she answered: “please see statutory declaration attached”. In that document she stated that the Karuna group and the army believe that she was supporting the LTTE and that she believed that she would be persecuted for this and also because she was a Tamil woman whose husband was missing; whereas her husband was not actually abducted by anyone, suggesting that the circumstances on which she based her claims were incorrect;
(e)at question 48 of Part C of the form 866, which states: “do you think the authorities of that country can and will protect you if you go back? If not, why not?”, she answered: “please see statutory declaration attached”. In that document, she stated that the Sri Lankan government could not protect her because they are the ones persecuting her for her and her husband’s imputed political opinion; whereas her husband was never abducted and continue to reside safely in his residence with her and her children, suggesting that he did not have an adverse profile and Sri Lanka. This suggested that the circumstances on which she based her claims were incorrect.
The statutory declaration referred to above was dated 20 June 2012 and submitted with the applicant’s protection visa of the same date. The following statements were made in response to questions 43 to 48 of form 866C.
In response to question 43 – The reasons that you left Sri Lanka – the applicant stated:
I left Sri Lanka because I feared being persecuted on account of my ethnicity as a Tamil, my imputed political opinion as a supporter of the LTTE and my particular social group of a Tamil woman whose husband is missing.
There is no protection for my life or my chastity in Sri Lanka.
Disappearance of my husband
My husband has been missing since 2008. My husband went to drop my son at school but he didn’t have his mobile with him and I didn’t know where he was. He was missing all day.
The following day my husband had not returned home. My cousins brother and I went to search for him. I received a phone call on my husband mobile. I was told by a man speaking in Tamil that my husband was with them and not to go to the police. I was told that my husband would be released after questioning. We understood something very wrong had happened and that if we continue to search we would be in danger also.
I went home to my mother’s place. Two days after my husband’s disappearance, two men in army uniform went to my home and enquired about me. My neighbour called me and informed me what had happened. She told me not to come home and to stay at my mother’s.
I continuously received phone calls from these people. I was told that my husband was being held at the Karuna Group officers, this is a militant Tamil group in Sri Lanka. I went to 1 of the offices of Karuna in [City 1]. I waited a very long time. I was informed that my husband was not at that office that he might be at another Karuna office. I went to 2 Karuna offices but I was informed that my husband was not at either place.
The next day I received a phone call asking if I had been searching for my husband. I was informed that in four days I should go to [another place] and that I would see my husband I was told not to go with anyone. I went to this place. I opened the gate to a home and walked inside. I saw men inside the house drinking. I was very afraid. A man saw me through the window but I ran to my cousins brother who was standing close by.
The next day the man called me again and asked why I had come with someone. They said that I should have cooperated and that they would have shown my husband to me. I decided to go to the police but again I was called by these men and they said that they would kill my husband.
I went to the police but they refused to assist me, they told me to go to talk with my group being the Karuna group.
My husband and I lived in [address], we operated a shop there. We lived in a shop at [a location]. A military base was located [near us]. The LTTE and the military people came to our shop to buy supplies. The military people were dressed in uniform and came to the shop often. The LTTE also came to the shop infrequently, they came at night. My husband would serve the LTTE.
On one occasion someone was injured at the store, my husband gave me a prescription to buy medicine. As I returned home I was stopped at a military check post on the bridge. I was asked to show the contents of my bags. I stated that I was carrying medicine for a friend of my husband.
I was unaware that the medicine was for the LTTE. After my husband was abducted I was called on my husband mobile and accused of helping the LTTE because I purchased this medicine.
I don’t know who abducted my husband, but in 2008 the Sri Lankan army and the Karuna group work together and both were against the LTTE. They were known to kill anyone who was associated with the LTTE.
I escaped to [Country 1] and I stayed there for three years. I overstayed my Visa by six months and I was required to pay a penalty for that.
In response to question 44 – Have you experienced harm in that country? – the applicant stated:
Interrogation by the CID
I returned to Sri Lanka in December 2011. Two days after I arrived home the police or the CID came to my house and enquired about me. I was requested to attend the CID (a government group) office four or five days later. My father accompanied me to the office as my father can speak Sinhalese. I arrived [in] the morning and on this occasion people came past me and touch me but nobody spoke with me.
I attended the CID office four times. They questioned me about my husband’s disappearance and why I went to [Country 1]. They accused me of earning money for the LTTE. They were inappropriate to me. There was an interpreter in the office and he told me that I had to say yes to their demands or I would be imprisoned and tortured.
The CID came to my house and this was shameful for me as a Tamil woman. They came to request me to come to the offices and to question me. They came six or seven times and my neighbours were talking about me.
I believe that the CID investigated me and sexually harassed me because of my husband’s involvement with the LTTE and because I am a Tamil woman whose husband has disappeared. I am very vulnerable.
Prior interrogation by the CID
I also experienced persecution by the CID as a young Tamil woman.
When I was small my parents operated a shop. A young boy was shot dead and as a bystander I was taken by the CID for questioning. Identified the person who shot the young boy and as a result I experienced many problems.
I was [age] years old and because I was Tamil I was sexually harassed by the CID. They touched me inappropriately they talked inappropriately with me.
Death of my brother and sister
In 1990 my brother and sister went missing during fighting between the Sri Lankan army and the LTTE. We believe that they were killed in a bomb explosion.
In response to question 45 – What do you fear may happen to you if you go back to that country? – the applicant stated:
I believe if I return to Sri Lanka I would face a real chance of being persecuted for ethnicity as a Tamil, my imputed political opinion due to my husband’s involvement with the LTTE and my involvement with the LTTE and my particular social group of a Tamil woman whose husband is missing.
I will be tortured. I will be raped, if I do not agree I will be placed in jail.
The Sri Lankan army will shoot me like a dog. I will be harmed in this way because the Sinhalese do not like the Tamil community.
In response to question 46 – Who do you think may harm/mistreat you if you go back? – the applicant stated:
I believe if I return to Sri Lanka I would be at a real risk of facing serious harm by the people who abducted my husband and the CID.
In response to question 47 – Why do you think this will happen to you if you go back? – the applicant stated:
My husband was abducted because he was supporting the LTTE. The Karuna group and the army believe that I was also supporting the LTTE due to my husband’s support and because I unknowingly purchased medicine for the LTTE.
I believe if I return to Sri Lanka I would face a real chance of being persecuted for ethnicity as a Tamil, my imputed political opinion due to my husband’s involvement with the LTTE and my involvement with the LTTE and my particular social group of a Tamil woman whose husband is missing.
In response to question 48 – Do you think the authorities of that country can and will protect you if you go back? If not, why not? – the applicant stated:
The Karuna group and the Sri Lankan army have the support of the government. The government cannot protect me because they are the ones that are harming me.
I cannot relocate anywhere in Sri Lanka because all areas in Sri Lanka are under the control of the government. They can find me anywhere in Sri Lanka because I am Tamil and I am a known LTTE supporter.
The statutory declaration also gave her address prior to leaving Sri Lanka as [address], [City 1].
The applicant’s protection visa was granted on 12 March 2013.
[In] January 2015, the Department received a telephone call from an informant who advised that she was a friend of the applicant’s husband, [Mr C] and that [Mr C] was living in Sri Lanka and wish to make contact with his son in Australia. The informant further advised that the visa holder had made false claims in her protection visa application about her husband’s disappearance and her imputed political opinion. On 7 January 2015, the Department received documents from the informant said to have been forwarded to her by the applicant’s husband.
The department’s inquiries indicated that the applicant husband was alive and living in Sri Lanka at the same address at which the applicant claimed to have been living prior to leaving Sri Lanka, and that the applicant’s two other children were also living at that address. Documentation held by the department includes a certificate of residence and character issued in 2014, a householder’s list issued in 2014, certified copies of identity documents validated in 2012, and medical records for the husband dating from 2011.
The applicant’s husband died [in] October 2016.
In response to the notice under s.107, the applicant submitted that:
·she witnessed a terrorist incident as [an age]-year-old and was taken in for questioning by the Sri Lankan authorities who sexually harassed her and continued to do so after the initial event;
·because of this constant harassment, she was pressured into marriage at a young age. Her husband was a drunkard who physically abused her and often left the family home;
·it was not unusual for her husband to disappear for days at a time; however, in October 2008 he disappeared and did not return. After making enquiries with the Sri Lankan authorities, she received anonymous threats;
·by the time she departed Sri Lanka in 2012, she had not heard from her husband for four years and truly believed that he had disappeared;
·she only heard about her husband being alive in 2014, when one of her children in Sri Lanka met up with him; it is not true that her husband had continued to reside in the same dwelling that they had shared, leaving her alone, and that her two children had been residing with her parents since 2008;
·it only appears that her husband was still living at the same address; however, this is because no one had applied to have his name deleted from the property title, and that any documentation that had been provided to the Department could easily have been obtained by fraudulent means in Sri Lanka;
·it is true that she experienced severe harassment without the presence of her husband.
On 24 May 2017, the delegate, in deciding that the ground for cancellation exists, found that the evidence available to the department was much more compelling than the applicant’s explanation. After considering the discretionary factors, he found the reasons to cancel the visa outweighed any reasons to the contrary.
The application for review to the Tribunal was lodged on 25 May 2017 and was originally listed for hearing on 12 July 2017. The hearing was postponed, however, when it was found that the departmental officer making the decision did not have the delegated power to do so. There were a number of similarly affected decisions. That issue was ultimately resolved by the Full Court of the Federal Court of Australia [in] May 2019, which determined that, notwithstanding the invalidity of the officer’s decision, the Tribunal has the power under section 415(2) to affirm or set aside the decision under review.
The applicant, through her representatives lodged written submissions, dated 11 August 2017 and 21 October 2019. A post-hearing submission was lodged on 22 November 2019. The material available at the hearing included a copy of the applicant statutory declaration of 20 July 2012, a copy of her statement of 5 June 2017, a copy of her husband’s death certificate, copies of her statement to Queensland police concerning alleged harassment and domestic violence by a partner in Australia, some documents evidencing her relationship with that partner, the applicant’s medical records and a number of personal references.
Non-disclosure certificates
The other material available to the Tribunal comprises the departmental file. The bulk of the material on the file has been disclosed to the applicant. Folios 1 to 11, 68, 73, and 97 were not disclosed and are the subject of a nondisclosure certificate under section 438. This material consists of internal departmental reports, apparently of a routine nature, all recording the receipt of the information referred to in paragraph 20 above. The certificate specifies that the subject information should not be disclosed to the applicant because it contains information provided to the Department by an informant. I sought and obtained the submissions of the applicant’s representative in relation to the material covered by the certificate. The applicant’s representative sought disclosure of that material. Having considered the material, I have come to the view that there is nothing in the subject folios which I consider germane to the issues to be determined on this application. The material information relating to the applicant’s husband has already been disclosed to her. The other material tends only to identify the source of the material and the names of the departmental officers who assessed it. The applicant has surmised the identity of the informant and made submissions on the basis of that surmise. While she considers the identity and motivations of the informant to be relevant to her application, for the reasons given below, I do not consider that anything turns on it. Having regard to the public interest identified in the certificate and the immateriality for the purposes of this application of the information covered by it, I do not consider that any prejudice or disadvantage would be occasioned to the applicant bites nondisclosure.

On 20 January 2020, the Tribunal received a further series of documents from the Department under the cover of a section 375A certificate. The documents purport to describe the husband’s circumstances. On 16 June 2020, the certificate was forwarded to the applicant’s representative with an invitation to comment or make submissions. On 9 July 2020, the representative responded with submissions to the effect that the applicant’s evidence should be preferred to any unsworn material provided by an informant. Access to the documents was not requested.
Having reviewed the documents covered by the certificate, I consider that the certificate is invalid, having purportedly been issued under section 375A rather than section 438, this matter being concerned with a Part 7 reviewable decision. However, I am not satisfied as to the provenance or credibility of the documents purportedly covered by the certificate. I therefore consider them irrelevant and have had no regard to them.
The applicant’s evidence
The applicant relies upon her statement dated 5 June 2017, composed following the decision to cancel her visa. This statement is largely consistent with the submissions made on her behalf to the Department, as narrated in paragraph 23, although with more detail. She maintains that, on the occasion of her husband’s disappearance in October 2008, she conducted a search for him with a male relative, during which she learned from neighbours that she was being sought by two men in uniform. She claims that over the next few days, she received menacing calls and information as to where her husband was being held. She claims that threats made in these calls escalated to the point where she left her children with her parents and travelled to [Country 1].
The applicant claims that, just before she left, she locked the house and shop that had been the marital home. While she was away, her mother maintained and organised repairs for the house is required. She claims that her mother neither sought nor heard from the husband. In 2010, her parents arranged for the house to be leased. At some time not known to her, she says that her husband’s sister demanded that the tenants leave and then moved into the property with her family. The applicant says that, during this period, her sons lived with her parents and never visited the marital home on any occasion and did not see their father at any time. On her return from Sri Lanka, she says, she lived with her parents and sons at her parents’ house and never visited her former marital home.
While in [Country 1], a person by the name of [Name 1], a friend of her husband’s, arranged for her to work [for] approximately two years. [Name 1] had also made her Visa and travel arrangements.
The applicant returned to Sri Lanka in December 2011. She provides some details about the way she was processed, having returned without a passport. She provided her parents address and telephone number to the authorities (she says that she was interviewed by the CID at the airport). She then relates some four or five incidents of being interrogated by the CID, which she says involved physical mistreatment and threat of imprisonment and torture. She was accused of raising money for the LTTE. She says she then moved to Kandy to stay with distant relatives of her husband (who she says had had no contact with him either). After three weeks, she moved to [Town 1] and then to Colombo while her father made arrangements to take her youngest son with her to [Country 2].
The applicant flew with her youngest son [to Country 2] [in] April 2012, where she stayed for [number of] days. During this time, she met a person by the name of [Name 2] who made arrangements for her to board a [vessel]. She arrived in Australia [in] May 2012.
The applicant then provides some details relating to her relationship with a person by the name of [Name 3] while she was living in Brisbane. [Name 3]’s brother-in-law is [Name 2], who not only arranged for her travel to Australia but also travelled on the same vessel. It should also be noted that the applicant knew [Name 3] from Sri Lanka, he having been a [service provider] for their shop. It appears that [Name 3] and her husband were friends or drinking companions. She also attended his wedding in 2007 or 2008. Shortly before the wedding, [Name 3] stopped his [service] and took up a new job driving for an NGO in the [City 1] district. She says that the acrimonious nature of her breakup with [Name 3] led to disclosures to the Department.
The applicant claims that the first time she became aware that her husband was still alive was when she heard from her sons in Sri Lanka that they had met him in [City 1] whilst shopping in 2014. She says she had had no contact with him at all after 2008. She claims that she was a genuine asylum seeker when she came to Australia and that she had no understanding that her husband was not, in fact, missing. She claims that she had never heard from her family that he had been seen anywhere before the chance meeting with their sons. She says that her mother informed her that she was managing the marital house and that, on all of her visits, she had never seen the husband there. She says that since the date when she locked the marital house and left, and throughout her time in [Country 1], Sri Lanka, [Country 2] and Australia, her two elder sons have always lived with her parents and have never lived anywhere else and, specifically, never with their father.
A statement was submitted from Mr [B] dated 17 August 2017. In addition to some details concerning his knowledge of the relationship between the applicant and [Name 3], he states:
On or about [date] August 2014 [the applicant] called on my wife and I had our residents and informed us that she had received a phone call from another son of hers who are still living in Sri Lanka in which he informed [the applicant]’s that his father, her husband, had returned “home”. He reported to her and she to us that his father had said to him, “I need money. I hear your mother is in Australia. Will she help me.”
I asked [the applicant] if she was going to bring him to Australia. She replied in the negative, saying, “he is a bad person”. [The applicant] asked me if she should inform immigration and I told her I could see no point in doing so as her husband was still a fugitive.
Not long after this she informed us that she had learned of his death.
It is the applicant’s case that the specific answers she provided in her statutory declaration of 20 June 2012 were true. She maintains that her husband was indeed missing and, to the best of her knowledge at the time, had been abducted. She claims that, at all material times, until about August 2014 there was no reason for her to believe anything other than what she has described in her statutory declaration of 2012. She maintains that, notwithstanding his reappearance and subsequent death, she has well-founded reasons to fear returning to Sri Lanka. Those reasons are substantially those claimed in her statutory declaration of 20 June 2012, including that of being a female Tamil without male protection.
At the hearing, the applicant gave evidence that she and her husband were married in 1995 and have three sons, born in [different years]. When she left Sri Lanka to come to Australia, she left the two older boys, [with] her parents. She said she has been in touch with them constantly since leaving Sri Lanka. As noted in paragraph 36, it was not until 2014 that her sons had any contact with their father. With the post-hearing submission, the applicant supplied a statement from her [son], now living in [Country 3]. That statement says:
My mother, [Ms A], has been living in Australia since 2012. She managed to get a regularisation in this country with a residence permit. However, because of jealousy and out of revenge, my father and his close friend who lives in Australia are trying to have her administrative papers cancelled. For this, they sent to your immigration service some fake documents about my mother. I learned this from my mother. I know very well that these documents are all falsified.
Some time ago, they also sent me by Messenger to me and my girlfriend fake photos that showed my mom naked, hoping it would make me discussed from my mother. But that did not work because I did not give in my mother and I always supported my mother. In 2008, my father suddenly disappeared. After that I grew up under the responsibility and protection of my grandmother. My mother had gone to a foreign country. As I was very small, I did not really understand what was going on around me.
From early 2008 until 2014, I never met my father. This is the absolute truth. I met him however by chance in 2014 in [City 1]. I was very surprised by this meeting. I immediately informed my mother of the meeting that day. I also told her about the content of my conversation with my father. Even after that, my father never came to live with me! In addition, he is not at all interested in this idea. My father has never been a good father to me. I hate him!
There is nothing in this statement that corroborates a belief or suspicion that the husband had been abducted or had absented himself from the family against his own will. The statement and the sentiments expressed in it are consistent with the bitterness associated with an ordinary case of paternal abandonment.
The applicant’s statutory declaration in 2012 gives her last address in Sri Lanka as [address], the marital home. This would be consistent with her original claims to have been desperately seeking her husband, believing him to have been abducted. It is not possible to square that representation with her subsequent claims to have locked up and left the marital home in 2008, her mother having leased the property to unrelated tenants in 2010 and her sister-in-law to have evicted those tenants and moved in herself and her family. All of the documents provided by her as to the domestic arrangements in Sri Lanka have her children living with her parents at [address], [City 1]. Her later statements have her living at her parent’s address in 2011 and 2012.
A further problem arises from her account of being interrogated by the authorities on her return from [Country 1] in 2011. In her 2012 statutory declaration (see paragraph 13 above), she claims that on her return to Sri Lanka she was questioned on four occasions, including about her husband’s disappearance. However, her husband was not missing in December 2011, as attested by the medical records disclosed to the Department. Her later statements contain an account in which she is repeatedly questioned, but in relation to supposed fund raising for the LTTE and there is no mention of questioning about the missing husband.
However, the most important difficulty with her later version of events lies in the implausibility of any news reaching her by any means that her husband was not in fact missing, and certainly not by late 2011 when she had returned to Sri Lanka. She claimed that the marital home, abandoned and locked up by her in 2008, had been let out by her parents but that her sister-in-law had evicted those tenants. It was not at all clear how her parents had any legal claim on the property because the home had been built on her sister-in-law’s land. When questioned, the applicant claimed that her sister-in-law had objected when the applicant’s parents organised tenants for the property and the matter was then dropped. This softened account seems calculated to minimise the opportunity for any communications that may have confirmed the presence of the husband. She claims not to have visited the marital home at all between 2008 and 2012. She has provided no evidence concerning any assistance that her sister-in-law might have been able to give her to locate her husband and her evidence is silent as to any communications whatever with her husband’s family after leaving the marital home. This is consistent with a marital breakdown and quite inconsistent with an abduction which would have had effect on the wider family. No evidence which might corroborate her version of events (for example, from her former in-laws or her Sri Lankan friends, some of whom are, or have been, resident in Australia) has been provided.
A very significant proportion of the applicant’s written evidence before the Tribunal concerns her relationship with [Name 3] and the events surrounding the breakdown of the relationship. The clear purpose of this evidence is to invite the Tribunal to find that the disclosure of information concerning her husband was motivated by spite or revenge. However, the only material to which I need to have regard is the unrefuted documentary material that her husband had not disappeared. He was almost certainly, on the evidence, living in the marital home when the applicant returned from [Country 1] and well before the applicant departed for Australia.
On the evidence before the Tribunal and having careful regard to the applicant’s explanation as to the circumstances in which her 2012 statement was made, I am satisfied that her husband was never abducted and that, to the extent that the applicant and the husband may have been incommunicado, she did not believe him to be missing by December 2011 at the latest. I am further satisfied that neither she nor husband was of interest to the Karuna Group or the Sri Lankan authorities and that she has no reason to fear persecution for any imputed political opinion.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that contained in paragraph 45 above. I am not satisfied that the applicant has provided the correct information to the Tribunal. I give no weight in her favour in relation to this factor.
The content of the genuine document (if any)
The applicant provided a number of documents which I have assessed for the purposes of determining whether the content of the genuine document (if any) can be afforded any weight in her favour. The only of these documents to which I am prepared to give any weight are those that confirm that her children were living with her parents, as originally claimed. However, these documents are only corroborative of the separation of the applicant and her husband and, as discussed above, not of her claims of his abduction. I can give the content of the documents no weight in her favour.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision to grant the applicant a protection visa on 12 March 2013 contained the following assessment:
Based on the consistency and coherency of the applicant’s claim, I accept that the applicant and her husband could have been of interest to the Sri Lankan authorities for reason of their association with members of the LTTE at the [store] and in attending a Tamil celebration organised by members of the LTTE, noting that this all occurred prior to the cessation of the conflict in Sri Lanka and occurred in LTTE strongholds.
I further accept that the applicant husband has been missing since October 2008, likely for being perceived as an LTTE sympathiser. I also accept that the applicant did not know the full extent of her husband’s involvement with members of the LTTE, and take into account that she has not tried to exaggerate or embellish her claims. I accept also the applicant feared persecution for the association she had with members of the LTTE, and taking into account her husband’s disappearance.
In light of the applicant’s assertions, I accept that the applicant would have been of interest to the authorities following her return to Sri Lanka, taking into account the fact she had previously reported her husband missing and had spent a substantial period of time abroad. I further accept that the applicant suffered from sexual harassment, and likely sexual violence, during her interrogations.
In this case, I have accepted that the applicant has recently suffered from sexual harassment by the Sri Lankan authorities, who are known to commit serious human rights abuses and act with impunity. I also accept that the applicant’s husband is missing and that, as indicated by evidence, women whose husbands are missing are particularly vulnerable to being harassed, threatened and sexually assaulted in the context of the north and east of Sri Lanka. I therefore cannot discount the possibility that the applicant may be subjected to sexual harassment and/or other forms of serious harm if she is returned to Sri Lanka.
The original delegate’s findings were very largely predicated on acceptance of the applicant’s claim that her husband was missing, which supported her claims to have an adverse profile in Sri Lanka. For the reasons given above, I am satisfied that the events forming the basis for her protection claims never occurred. I am satisfied that the decision to grant the visa was based, wholly or partly, on incorrect information provided by her. I give this significant weight against the application.
The circumstances in which the non-compliance occurred
The applicant has submitted that she did not become aware of her husband being alive until informed by one of her sons in 2014, sometime after the grant of the protection visa. For the reasons underpinning the conclusion in paragraph 45 above, I do not accept the truth of her submission and can give this factor no weight in her favour.
The present circumstances of the visa holder
The applicant provided evidence, which I accept, that she has settled in Australia and is employed at [Workplace 1], Brisbane. [Details deleted]. She has provided references from the school, her church and [a church official] of Brisbane that she is a valued member of their communities and the wider community. I give these matters some weight in her favour.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act

The applicant has been generally cooperative in the presentation of relevant information and documents to the Department and the Tribunal. She has, however, maintained that false information was not provided and that there was no non-compliance under s.101. While I have found that this is not the case, I consider that the applicant should not be penalised for the way in which her case was presented and, therefore, give no weight to this factor either way.
Any other instances of non-compliance by the visa holder known to the Minister
There are no instances of non-compliance known to the Tribunal. I give some weight to this in favour of the applicant.
The time that has elapsed since the non-compliance.
Some eight years has elapsed since the non-compliance, which is a substantial period of time. The non-compliance was detected in January 2015 and it was a further 15 months until the decision for cancellation was taken. The application for review was made on 25 May 2017, but the hearing was delayed until 2019 because of the referral of the matter to the courts for determination of the s. 109 issue. Therefore, of the eight years that the applicant has spent in Australia, five years have elapsed since the non-compliance was detected and 3 ½ years have elapsed in the decision and review process. In the circumstances where the non-compliance did not come to the notice of the Department for some time, the delay is not extraordinary. However, some weight is given to this factor in favour of the applicant.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no breaches of the law on the part of the applicant indicated on any of the material before the Tribunal. A small measure of weight is given to this factor in favour of the applicant.
Any contribution made by the holder to the community
I have had regard to the applicant’s evidence that she has been working at [Workplace 1] for some years and that she is held in high regard within her church community. These are matters to which I give some weight in her favour.
In addition to the prescribed circumstances, there are factors identified in the Departmental PAM3 guidelines relevant to this application.
Whether there are mandatory legal consequences to the cancellation of the visa
Should the applicant’s visa be cancelled, she would be subject to section 46(1) of the Act, barring her from making a valid application for a further visa. As an unauthorised maritime arrival, should the protection visa be cancelled and she becomes an unlawful noncitizen should also be subject to section 46A(1) and barred from making a valid application for a further visa, including abridging visa, and may be detained. Should the Visa be cancelled she would be subject to section 48A(1B), preventing her from making a further application for a protection visa while in the migration zone. Further, upon cancellation, the applicant will become an unlawful noncitizen and liable to be detained under section 189. I have had regard to all these matters and accorded the applicant some weight in respect of them.
Whether there would be consequential cancellations under section 140
Should the applicant’s visa be cancelled, her son [Master D]’s visa would be consequentially cancelled by operation of law under section 140. As both of them arrived in Australia as unauthorised maritime arrivals, they would be prevented from applying for another visa. This would affect his access to schooling and any further education in Australia as he would not be the holder of the visa permitting study. No evidence was presented to me as to the exact stage that [Master D]’s high school education had reached, or whether he had graduated, or his plans for further education. The submissions made on the applicant’s behalf mentioned that [Master D] does not read or write in the Tamil language and would not be able to study or be employed without considerable retraining. This submission does not take into account that Tamil is spoken at home and that [Master D] did most of his primary schooling in Tamil. However, this is a matter in which I am inclined to give the benefit of the doubt to [Master D] and I give this factor very considerable weight in the applicant’s favour.
The degree of hardship that may be caused to the visa holder and any family members
This consideration is coextensive in some respects to the matters discussed at paragraphs 55, 58, 61 and 62. I have also had regard to the emotional and, possibly, psychological hardship that may be occasioned to both the applicant and [Master D] at the prospect of separation from their support network in Australia. In addition, both may face financial hardship in at least relative terms arising from the different standards of living between Australia and Sri Lanka. While none of this was explicitly made the subject of submissions, I have sought to understand the effect that a cancellation decision may have in these respects and have accorded it a degree of weight in the applicant’s favour.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
The first of these matters to which I have had regard is whether any non-refoulement obligations are invoked.
On 4 April 2017, in an International Treaty Obligations Clearance Letter (ITOCL), it was found that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the relevant country for the purpose of assessing whether she engages Australia’s non-refoulement obligations. It was found that the applicant is not a refugee within the meaning of Article 1A of the Refugees Convention and that Australia does not have a non-refoulement obligation arising under the Refugees Convention, the Convention Against Torture or the International Covenant on Civil and Political Rights. It was found that there is not a real chance of the applicant being subject to significant harm if she returned to Sri Lanka. Accordingly, no weight can be given in favour of the applicant to this factor.
I have given very careful consideration to the obligations that may arise under Article 3.1 of the Convention on the Rights of the Child mandating that in a matter such as this, the best interests of the child shall be a primary consideration. I have also been mindful that departmental policy instructions (PAM3, paragraph 76) provides that: “obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation processes are those relating to the best interests of the child, family unity and non-refoulement …”
At paragraph 62, I have placed significant weight on [Master D]’s time spent in Australia and the possible effect of cancellation on his education, notwithstanding the lack of evidence presented as to his level of attainment or his further plans. I also consider that he may face some degree of hardship adjusting to life in Sri Lanka and some emotional and psychological hardship arising from separation from his friends and the way of life to which he has become accustomed. These are matters to which I give some considerable weight. I have also given regard, however, to the fact that it is usually in the best interests of the child for them to remain with their family. I note that, in addition to his mother, [Master D] has a family network based in Sri Lanka, with the exception of one brother who is now in [Country 3]. It is likely that [Master D] would enter Sri Lanka with some educational advantages over his peers in that country, although again no evidence was presented to the Tribunal either way. Weighing the matter as a whole, I am guided by Article 23.1 of the ICCPR, which provides that “the family is the natural and fundamental group unit of society, and is entitled to protection by society and the State” and by the departmental policy instructions quoted at paragraph 64 above. Accordingly, I am satisfied on balance that [Master D]’s best interests are served by maintaining family cohesion and that the cancellation of the applicant’s visa is not inconsistent with the relevant international treaty obligations.
The determination of this application has required careful consideration of the countervailing factors. I have concluded that the applicant provided false information in seeking to invoke Australia’s treaty obligations in respect of refugees, which is a matter going to the integrity of the migration system. I have also given particular weight and consideration to the implications of cancellation of the applicant’s visa, particularly where they touch upon [Master D]’s best interests and the hardship that might result for both of them. In the result, I have given the greatest degree of weight to the provision of false information, a matter going to the integrity and sustainability of the refugee program, as well as being an element that underpins the visa process. I have given what weight I can to the prescribed and discretionary factors, including those matters not raised by the applicant, but am satisfied that, on balance, they cannot displace the considerations in favour of cancellation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
James Lambie
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 3524

14 July 2020

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