1711148 (Refugee)

1711148 (Refugee) [2020] AATA 3724 (2 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711148
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Roslyn Smidt
DATE: 2 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 3 July 2020 at 08:00 AM

CATCHWORDS
REFUGEE – cancellation – protection visa – Bangladesh – incorrect information provided – false claims of secretive marriage – dob-in information – marriage supported by both sides of the family – wife’s mental health issues – Convention on the Rights of the Child – impact on applicant’s young children – decision under review set aside

LEGISLATION

Migration Act 1958, ss 101(b), 107, 109(1), 140(1)
Migration Regulations 1994, Schedule 2; r 2.41
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 the applicant did not comply with s.101(b) of the Act, requiring that visa applications be correct. 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 visas were 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 applicants.
The applicant and his wife appeared before the Tribunal on 9 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages
The applicants were represented in relation to the review by their registered migration agent.
BACKGROUND
The applicant arrived in Australia on a sponsored family visitor [in] September 2012. He was accompanied by his wife who was pregnant at the time. The applicant’s first child was born in Australia [in] 2013 and included in his protection visa application. His second child was born on [a later date].
On 24 September 2012 the applicant lodged an application for a Protection (Class XA). In summary, he claimed that he and his wife were at risk of serious harm from his in-laws because they had married against the wishes of his wife’s family who opposed the marriage because of the applicant’s membership of the BNP and the fact that he was [several] years older than his wife. He claimed that he and his wife married in secret in January 2012 and continued to meet in secret following the wedding. His in-laws became aware of their marriage when his wife fell pregnant. They beat him and forced her to abort their child. Despite this the applicant and his wife continued to meet in secret until their departure for Australia. The applicant also claimed to be at risk of harm because he was a member of the Bangladesh National Party.
The delegate refused the application on 24 September 2013. She found that the claims regarding the applicant’s marriage were not credible, largely due to inconsistencies in the evidence provided by the applicant and his wife regarding their courtship and the problems they faced. The delegate also found the applicant’s claims regarding his involvement in politics lacked credibility. It is not clear from the decision how she reached this conclusion.
On 9 January 2015 a differently constituted Tribunal found that the applicant and his wife had given credible evidence regarding their marriage and found that they faced a real chance of suffering serious harm from the applicant’s in-laws if they returned to Bangladesh. As the Tribunal was satisfied that the applicants were entitled to protection due to the problems with the applicant’s in-laws the presiding Member did not make any findings in relation to his claims regarding his involvement in the BNP.
In July 2015 the Department received an anonymous letter which alleged that the applicant and his wife had not married in secret and that the marriage was arranged by and had approval of both families. The letter also alleged that the applicant had lived in [Country 1] for a number of years immediately prior to this marriage. On 10 March 2017 the Department issued the applicant with a Notice of Intention to Consider Cancellation of his visa.
The applicant’s protection visa was cancelled on 24 May 2017.
In her decision the delegate noted that the applicant’s wife and son held visas as dependents of the applicant and observed that cancellation of his visa would also result in cancellation of their visas under s140 of the Migration Act. Their visas were also cancelled on 24 May 2017. However, the applicant’s wife and son were granted protection because a differently constituted Tribunal found that they had a well-founded fear of persecution in Bangladesh for reasons of religion, not because of their status as dependents of the applicant. This raises questions about the validity of the cancellation of their visas. However, I do not have jurisdiction in respect of this issue.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the s.107 notice issued to the applicant valid?
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.
As part of his application for protection the applicant filed a completed Form 866 together with a statement setting out his claims for protection. On 10 March 2017 he was issued with a notice of intention to consider cancellation of his visa as it appeared that his initial application contained incorrect information. The information referred to in the notice is set out in the delegate’s decision. A copy of that decision was provided to the Tribunal
At hearing I advised the applicant that in my view the s.107 notice issued in his case appeared to be valid. I asked if he wished to make any submissions regarding the validity of the notice. Neither he nor his representative made any comment.
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.
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.
Was there non-compliance as described in the s.107 notice?
Section 107 Notice – Notice of Intention to Consider Cancellation of visa (NOITCC)
The non-compliance identified and particularised in the NOITCC was non-compliance with s.101(b). In summary the NOITCC advised the applicant that information held by the Department disputed the claims that he was at risk of serious or significant harm in Bangladesh because he had married in secret and against the wishes of his wife’s family and because his membership of the Jatiyatabadi Jubo Dal (BNP) political party had brought him into conflict with the ruling Awami League.
With regard to the applicant’s political activities, the NOITCC notes that the applicant said in his statement of claims that he had become active in the youth wing of BNP at the union (local area) level prior to parliamentary elections held in 2008. He claimed that BNP members were openly targeted following the disappearance of BNP leader Ilia Alia.
In answer to question 43 on Part C of Form 866 the applicant said that he had left Bangladesh in part because his active involvement in the BNP had resulted in him being labelled an enemy and a political threat by the local Awami League. He claimed that members of the Awami League used to assault and threaten to kill him on a regular basis. They also vandalised his business establishment and bullied his customers.
In answer to question 44 the applicant repeated these claims and added that the leader of the BNP had disappeared, and it was only a matter of time before he or someone next to him was brutally killed.
In answer to question 45, 46 and 47 the applicant repeated the substance of the claims made in answer to earlier questions. He said that he had participated in BNP protests and activities demanding justice and information on the whereabouts of Ilias Ali after Ali’s disappearance. He said that the local police watched BNP members closely and he feared that they would find him and take revenge.
In answer to question 48 the applicant said that the authorities would not protect him because they are controlled by the Awami League and he is an active BNP supporter.
The NOITCC notes the Department held information which indicated that the applicant had resided illegally in [Country 1] for a period of 8 to 10 years before returning to Bangladesh in December 2011 which meant he would not have been able to participate in political activities in Bangladesh during that time and the claim that he was or would be subject to persecution in Bangladesh because of his political beliefs was therefore implausible.
With regard to the applicant’s marriage the NOITCC notes that in the applicant’s written statement of claims he stated that he had married for love, which was uncommon in Bangladesh where marriages were generally arranged by the family. He claimed that he and his wife married in secret [in] January 2012. They kept the marriage secret following this, but his wife’s family found out and [in] March 2012 they forced his wife to abort their unborn child and asked her to divorce him. He claimed that he was unable to see his wife for several days during which she was forced to have an abortion. He also claimed that her family threatened to behead him because of the marriage. Despite these problems the applicant and his wife continued to meet. At some time after these problems began the applicant called his sister[1] in Australia and asked her to help him escape from Bangladesh. His wife fell pregnant for a second time [in] 2012. He and his wife obtained visas for Australia on 7 August 2012. The applicant also claimed that his wife’s family came looking for him at his brother’s home at some time following his marriage.
[1] According to the statement he called his sister in law, but his appears to be a mistake.
The NOITCC also details information provided in answer to questions in Part C of Form 866.
In answer to question 44 which asks about harm suffered by an applicant in their country of origin the applicant stated that when his wife’s family had found out that they had married secretly and they took him and his pregnant wife to a [named] Clinic, which he described as an abortion clinic. His wife’s brothers and about 7 or 8 other men bashed and tortured him in front of his wife. She begged for his life.
In answer to questions 45 and 46 which ask what applicants fear on return to their country of origin and who they fear will harm them, the applicant noted that honour killing was common in Bangladesh and said his wife’s family would be happy to carry out such a killing. He also said that he feared his wife’s family would torture him if he returned to Bangladesh.
In answer to question 47 which asks what applicants think will happen to them if they return to their homeland, the applicant said that his wife’s family had threatened him, his wife and their unborn child. He said that his wife’s family did not like him because of his political beliefs, his age (he is [several] years older than his wife) and most of all because he and his wife married for love.
In answer to question 48 which asks if the authorities in an applicant’s country of origin can and will protect them, the applicant said that Bangladesh was run by the Awami League who would not protect him. He added that his wife’s family did not see their marriage as legal and they would not accept them or their child.
The NOITCC states that information provided to the Department indicated that the applicant’s marriage was not a love marriage and that his wedding had not been conducted in secret, but was attended by a large number of people including members of his family, his wife’s parents and members of her extended family. It notes that the Department held a copy of photographs which the delegate was satisfied showed the applicant and his wife as groom and bride at their wedding and also showed his wife’s parents and other relatives attending the celebration. The NOITCC also notes that the Deed of Marriage form provided by the applicant states that two uncles, one from his side of the family and one from his wife’s family were witnesses at the wedding and that a dowry of [amount] Bangladeshi currency was to be paid to the bride’s family of which [amount] was to be paid in gold ornaments.
The NOITCC notes that the presence of the applicant’s wife’s family and many guests at the wedding and the fact that customary traditions appear to have taken place during the ceremony disputed the claim that the ceremony was conducted in secret without anyone’s knowledge and that the applicant’s wife’s family were not happy with the match. It states that it follows that the claim that the applicant’s wife’s family were aware of the marriage and accepted it and in these circumstances it was not plausible that the applicant had been persecuted by his in-laws in Bangladesh and the claim that he was at risk of future harm from his-laws family because they were not happy with the marriage was incorrect.
The NOITCC also noted that there was information before the Department which indicated that his wife was in constant contact with her family in Bangladesh via [social media] and telephone and that she and the applicant had plans to bring them to Australia for a visit when they obtained citizenship.
The applicant was invited to make a written response to the matters raised in the NOITCC. He was also advised that the decision to cancel his visa was a two step process, the first being a decision on whether there was non-compliance in the manner set out in the NOITCC and the second involving consideration of a number of matters, some of which are set out in the regulations. The NOITCC listed these matters and invited the applicant to provide submission and/or supporting evidence in relation to these matters.
The applicant’s response to the NOITCC
The applicant responded to the NOITCC on 21 March 2017. He maintained that his marriage was not arranged in the manner followed by most families in Bangladesh and that the ceremony was not attended by relatives or friends. He said that in addition to him and his wife, only his [brother] and four people were present at the ceremony which was held at the Kazi office in Sylhet. He also said that there had been no party to celebrate the event and no pictures had been taken. He maintained that he would be at risk of being a victim of an honour killing if he returned to Bangladesh.
With regard to his alleged residence in [Country 1], he said that he had never lived there and would be happy to rebut any evidence held by the Department.
Finally, the applicant noted that his wife was pregnant and was very upset by the situation.
The applicant also provided a statutory declaration from his wife which states that her marriage to the applicant was not solemnised according to the customary rituals, that her family were not present at the wedding and that no pictures were taken of the event. She said that those in attendance at the wedding were four witnesses, a vakil (the person who hands the bride to the groom) and a Kazi (the marriage celebrant). She said that [two named people] were friends of the applicant who were falsely introduced as her uncles. She said that the this was necessary as it was essential to have witnesses from her family at the wedding. She confirmed that a dowry of 500,000 was agreed with 100,000 paid by gold ornaments.
The applicant’s wife said that she did not have [social media accounts] and had never used either of these means of communication. She said that she had called her mother on a few occasions to attempt a reconciliation, but her mother would not talk to her and had changed her telephone number. She said that she had no intention of sponsoring her parents to visit her in Australia.
The applicant provided a letter from the Anowara Health Care Centre which states that his wife is pregnant and very depressed as a result of the cancellation of the family’s permanent residency in Australia.
The delegate’s decision
The delegate stated that the Department held credible evidence which showed that the applicant’s wife’s family had not opposed their marriage and had in fact attended their wedding. In these circumstances she found it was not plausible that he had been subjected to persecution by his wife’s family prior to leaving Bangladesh.
The delegate stated that the Department held evidence that the applicant had resided [Country 1] prior to 2011 and found that his claims regarding his political activities prior to that time were not plausible.
The delegate concluded that the applicant had not complied with s.101(b) of the Act as he had provided incorrect information regarding the circumstances of his marriage and his fear of persecution from his wife’s family and his political activities in Bangladesh.
Submissions to the Tribunal
On 23 October 2017 the applicant provided a statement in which he repeated the essence of the claims made in his protection visa application and maintained that these claims were all true.
In relation to the delegate’s finding that the applicant had resided in [Country 1] prior to 2011 and could not have been involved in political activities at that time he provided a number of documents including utility bills and documents relating to the operation of his business in Bangladesh during the period prior to 2011 and reference from the Bangladesh Jatiyobadi Jubodal which states that he was an active member and successful organiser for the Executive Committee of the Bangladesh Jatiyotabadi Jubodal, Sylhet Sadar Upazila Branch from November 2008.
In relation to his wedding, he said that the only people at the ceremony were his [brother], [three named people], who were also his friends and were not related to his wife. [Another person] also attended as a witness.
The hearing held on 10 March 2020
At the hearing I noted that the NOITCC stated that the Department held information provided by an unnamed third party which indicated that the applicant had resided in [Country 1] prior to 2011. I also noted that information on an application lodged in Australia by his brother 2007 also indicated that he had resided in [Country 1] at that time[2]. The applicant said that he had never visited or resided in [Country 1]. He said he had only ever held one passport and noted that it did not contain any stamps for [Country 1] or any reference which suggested that he had held a previous passport. I asked if he could think of any reason why his brother’s application would state that he was in [Country 1] if this was not correct. He said he did not believe that his brother made that statement.
[2] At the time of the hearing I was relying on information in the NOITCC in relation to information in the applicant’s brother’s 2007 application. Following the hearing I obtained a copy of this application and confirmed that it stated that the applicant resided in [Country 1] in 2007. It gives no indication of when he left Bangladesh or his status in [Country 1].

I noted that the notice stated that the Department held information which indicated that the applicant and his wife had not married in secret or against the wishes of her family.
The applicant maintained that he and his wife were married [in] January 2012 without the consent or knowledge of her family. He said that his in-law learned of the marriage in late March 2012 by which time his wife was pregnant. Following that they forced her to have an abortion, beat him severely and tried to force them to divorce. The applicant and his wife fled to Australia to avoid further harm.
The applicant said that his family knew that he and his wife wanted to marry and did not object to the match. However, when his wife’s family rejected a proposal sent by his mother and [brother] and threatened to kill him his mother and [brother] advised against the marriage. The only member of his family who attended the wedding ceremony was his [brother]. He told his [brother] and his mother about the marriage about two weeks after the ceremony. His sister and some other Australian relatives were visiting Bangladesh at the time of his marriage, but they were not aware of the relationship and did not attend the ceremony. He told his Australian sister about the marriage shortly after his wife was forced to terminate her first pregnancy [in] March 2012.
I noted that one of the matters raised in the NOITCC was content of the applicant’s Deed of Marriage which states that his wife’s uncles [attended] the marriage ceremony as witnesses and [two other people] as witnesses to appoint a vikal of the bridegroom.
I advised the applicant that it was my understanding that a Bangladeshi Deed of Marriage related to the registration of the marriage and did not necessarily mean that the ceremony took place at the office which had issued the document. He said that he was married in the registry office.
I asked the applicant if he had been required to make any arrangements with the registry office prior to the ceremony. He said that while people often gave prior notice, there was no official requirement and he had not done so. He and his wife came separately to the registry office on the day of the wedding. They were not required to provide any identity documents and completed the relevant forms on the day of the wedding. In addition, two witnesses where required to represent both sides of the family. These witnesses were required to make a statement regarding their identity and their relationship to the parties, but not required to show any identity documents.
The applicant said that he had made all the arrangement relating to the witnesses. On his side the witnesses were his brother and a friend. On his wife’s side he arranged for two people to claim to be her uncles. He said that the men were local shop keepers who he and his brother knew by sight. He said that they had approached the men on the day of the wedding, told them that his wife’s family had rejected his proposal of marriage and asked them to pretend to be her uncles. They were not paid to play this role. They simply agreed to help as a favour. When asked the applicant confirmed that while he and his brother knew these men by sight, but did not know their names or anything else about them prior to asking them to pretend to be related to his wife and that they had told the men they needed this assistance because hist his wife’s family did not approve of the match.
I advised the applicant that it was my understanding that Bangladesh was generally a conservative society in relation to issues such as marriage and parental authority, particularly in relation to daughters, and I therefore had difficulty accepting that two men he barely knew would agree to lie to help him and his wife to marry against the wishes of her family. The applicant said that it was it was true that Bangladeshi people were mostly conservatives, but he was telling the truth about his wedding day. He said that they had told the men that they had hoped to persuade his wife’s family to accept that marriage at some time in the future.
I advised the applicant that it was my understanding that it was not illegal for adult women in Bangladesh to marry without parental consent. He confirmed that this was correct. I advised him that in these circumstances I had difficulty understanding why he had needed to ask two strangers to pretend to be his wife’s uncles in order to demonstrate that the marriage was approved by her family. The applicant said that the registrar would generally not proceed unless there were witnesses from both sides and they wanted to avoid problems.
I asked the applicant if his wife had worn a special dress to the wedding or painted her hands with henna, as I understood was common practice in Bangladesh. He said that she had not worn anything special and while women painted their hands for larger celebrations his wife had not done this because they were married in secret.
I observed that the applicant and his wife had continued to keep their marriage secret following the ceremony and asked what they had planned to do in the longer term. He said that they hoped that his wife would eventually be able to convince her family to accept their marriage.
According to the Deed of Marriage a dower of [amount] ([amount] lac) Taka had been agreed, of which [amount] was to be paid promptly, including [amount] in gold ornaments to be paid at the time of the marriage. At the hearing I asked the applicant to explain the significance of these arrangements. He said that it was a rule in Islamic societies that a certain amount of money should be paid to the bride’s family and the bribe’s dress, jewellery should also be paid for by the groom. He said that the [amount] taka specified in the Deed could be paid immediately or later. I observed that the Deed suggested that [amount] had been paid at the time of the marriage. The applicant that this referred to an amount paid to the bride for dress and jewellery. He said that he had not made any payment at the time of the marriage, but he had needed to make a declaration at the ceremony. He said that he later brought these items for his wife.[3]
[3] A dowry is a payment from the bride’s family to her husband. A dower is a is a sum or property that a Muslim woman is entitled to get from her husband on marriage. Under Muslim law a marriage is not valid without dower. In the majority of the situations in Bangladesh the dower is not paid out during the marriage and only arises at the time of divorce. Drowning in dowry Dhaka Tribune 18 May 2018 >
The NOITCC stated that it appeared that the applicant had provided incorrect information when he claims he married in secret in part because of because of photographs provided to the Department which appeared to show him and his wife celebrating their wedding in the company of a relatively large number of people including his wife’s family. It appears that the delegate did not show the applicant these photographs and the applicant did not ask for copies to be provided.
Photocopies of three photographs were provided to the Department in August 2016. One shows the applicant and his wife seated on a couch between a man and a woman who were identified by the person who provided the photographs as the applicant’s parents-in-law (photograph A). One shows the applicant and his wife, his parents-in-law, a young woman and two young men standing in front of the same couch (photograph B). One shows the applicant, his wife and his parents-in-law seated on the same couch and a group of about twenty people sitting or standing nearby (photograph C).
At the hearing I showed the applicant pictures of the man and woman identified in the information provided to the Department as his parents-in-law and asked if he could identify them. He identified the man as his father-in-law, but said that he could not recognise the other person.
I showed the applicant a copy of a photographs A and B and asked him when they had been taken. He said that no photographs had been taken at his wedding and he believed that the photograph had been “morphed” [altered]. I asked again if he knew when the photograph had been taken. He said that he had been to many weddings of friends in Australia and in Bangladesh and someone must have used photographs from these occasions to create the photograph provided to the Department.
I noted that the woman seated next to the applicant in the photographs appeared to be his wife and appeared to be dressed as a bride. The applicant confirmed that the woman in the picture was his wife and said that all women attending weddings dressed in this manner, not just the bride. I asked if he knew when his wife had worn the dress she was wearing in the photograph. He said that he was not sure, but it could have been one of her family functions in Bangladesh. When asked if he recognised anyone else in the photographs, he said that one of the men in the photograph B was his brother-in-law, but he did not know anyone else
I showed the applicant photograph C and asked if he could tell me anything about that photograph. He said that no photographs had been taken at his wedding. When asked if he recognised anyone he said that he recognised one of his wife’s uncles, but apart from his father-in-law he could not recognise anyone else.
The applicant observed that it was possible to create or alter pictures with a computer and he believed that the photographs were faked, or that he had been added to pictures of an event he had not attended by someone who wished to harm him. When asked who would wish to harm him, he said that he many enemies, for example his wife’s family or members of the Awami League. I observed that while I acknowledged that his in-laws may have been angry if he and his wife married against their wishes, it seemed unlikely that the Awami League would have access to the necessary materials or information to fake these photographs and provide them to the Department in Australia. He said that he believed it was possible that they would fake photographs to harm him.
The applicant’s wife also gave evidence at the hearing. I asked the her to tell me about the preparations for her wedding. She said that there were no preparations prior to the day of the wedding. I asked the applicant’s wife what happened on her wedding day. She said that she could not really recall. Later in the hearing she said that she told her parents she was going to college and went to the registry office and got married. She said that she did not have to provide any evidence of her identity or age or permission from her family.
I asked the applicant’s wife who had attended her wedding. She said that she did not know anyone who attended the wedding, but she understood that one of the people was her husband’s friend. I asked if any members of her husband’s family had attended the wedding. She said that she did not remember. When asked to confirm that she could not remember if any of her in-laws attended the wedding, she again said that she could not recall. I asked if any member of her family had attended the wedding. She said that nobody from her family attended the wedding, but two men had pretended to be her uncles. She did not know anything about these men. They were friends of her husband and he made all the arrangements.
I noted that according to her husband’s evidence the applicant’s wife had returned to live with her parents after the wedding. I asked what she and her husband planned to do in future. She said that she did not have a plan, but her husband did, and she did what he told her to do.
The applicant’s wife said that her parents knew she was in a relationship with the applicant before they married, but they did not accept it. She met her husband by telling her parents she was going to college. However, she when fell pregnant she suffered from nausea and her parents realised what had happened. Her parents and brothers beat her and wanted her to sign divorce papers. I asked if her marriage had ended at that time. She said that it had not. I asked what future her parents saw for her after she married her husband against their wishes. She said that they wanted her to end any contact with the applicant and wanted to arrange another marriage for her.
I asked the applicant’s wife if her family had taken any steps to stop her seeing the applicant after they found out she was married. She said that they stopped her going to college and followed her everywhere. I observed that it appeared that she had continued to see her husband. She said she told her parents she was going to visit friends. I asked if she had been followed when she said she was visiting friends. She said that her parents were not suspicious to begin with, but at some time after her first pregnancy was terminated her elder brother saw her with the applicant.
I showed the applicant’s wife pictures of the man and woman identified to the Department as her parents. She confirmed that this was correct.
I showed the applicant’s wife photograph A and observed that it appeared to be a photograph of her wedding. She said that no photographs had been taken at her wedding and the photograph was fake. I asked why she appeared to be dressed as a bride in a photograph with her husband and parents. She said that she was she had never had a photograph taken with her husband in Bangladesh. She said that she was wearing a New Year dress and the photograph had been taken at a New Year celebration which she had attended with her parents in around 2010 or 2011. She said that her husband was not present at the event and she believed his photograph had been added later. She said that many people wanted to separate her and her husband, including her parents. I asked if her parents were aware that she had applied to Department of a visa. She said that they knew she was in Australia and could have provided the information with the help of others.
I showed the applicant’s wife photograph B and C and asked if she would identify any other people in the photograph. In addition to her parents she identified her sister and two of her brothers and said that the other people in the photograph were all members of her extended family. She said her husband’s picture had been added to these photographs.
I asked the applicant’s wife if she knew when photographs B and C had been taken. She said that she had attended some weddings in Bangladesh and they might have been taken at a wedding. I noted that she was wearing the same dress as in the picture which she said was taken at a New Year celebration. She said that there had been a wedding celebration on the same day. I asked why a photograph which appeared to show her as part of the wedding party and included a large number of members of her extended family would be taken at someone else’s wedding. She said that the photograph had been taken at the wedding of her cousin who was married in 2010.
I noted that the applicant’s wife and her parents were wearing the same clothes in all three photographs and asked her to confirm that two of the photographs had been taken at her cousin’s wedding while the other had been taken at a New Year celebration. She said that both events had been held on the same day and added that it was common for marriages to be scheduled in this way.
The applicant’s representative suggested that I ask the applicant if she could recall who had been seated where her husband appears in the photographs. She said that her brother had been seated next to her in photograph A and the person standing next to her in the other photographs might have might have been a cousin.
I noted that the Marriage Deed provided by the applicant mentioned a dower payment and asked her what this had involved. She said that nothing was paid at the time of registration, but she was paid in jewellery and clothing sometime later.
I asked the applicant’s wife if she wanted to make any further submissions. She said that she wanted a peaceful life in Australia and did not want to return to Bangladesh where she would be harmed by her family.
After taking evidence from the applicant’s wife I advised him that his wife had identified people in the photographs as her parents, siblings and members of her extended family and had claimed that they were taken at a New Year celebrations and her cousin’s wedding. She also claimed that she had been standing next to her brother or cousin in these photographs and that his photograph had been added later. I observed that while this accorded with his own evidence, the photographs appeared to be wedding photographs showing him and his wife as bride and groom. The applicant maintained that the photographs had been altered to make it appear that it was his wedding by someone who wanted to frame him.
I noted that the NOITCC stated that the Department had information that the applicant’s wife had been in contact with her family in Bangladesh by [social media] and other means. However, the only evidence of alleged contact appeared to be information provided by an unnamed person and in the absence of any supporting evidence I did not propose to give much weight to this allegation.
I advised the applicant that it was my understanding that he claimed that he had joined the BNP in 2008, that he worked occasionally for the Union secretary and president in his local area during elections. I noted that there was some suggestion that the applicant had not been in Bangladesh between 2008 and 2011 and observed that even if I accepted that he was in the country during that time it was not my understanding that someone with his level of claimed involvement would be at risk of harm from the Awami League now, particularly not as he had absent from the country since 2012. The applicant confirmed that he was a low-level BNP member, but said that he was well-known in his area because he made donations to the party and because he had influence over younger party members, many of who used to visit his [workplace]. He spoke about other party members who had been harmed by the Awami League. None of these people were directly linked to the applicant.
I observed that the delegate and the Tribunal which considered the applicant’s protection visa application had expressed concerns in relation to the credibility of some of the claims made by the applicant regarding his involvement with the BNP. In particular, I noted that he had failed to mention that he had been detained or questioned by the police three times in his initial submissions to the Department. The applicant said that he was not charged with anything, but the police often detained known leaders for up to a week during times of protest or unrest. I observed that while I accepted that this occurred, I was concerned that he had not mentioned these claims in his initial application. He said that he had not had any evidence to prove that people were arrested, so he did not include these claims until after his application was refused by the delegate.
I asked the applicant if he wished to say anything further in relation to the cancellation of his visa. He said that anyone with a computer and the appropriate software could do anything and the photographs which appeared to show him and his wife at their wedding were not genuine.
I asked the applicant’s representative if he wished to make any oral submissions regarding the matters related to the cancellation of the applicant’s visa. He said that he preferred to provide written submissions.
Post hearing submissions
In a submission dated 6 May 2020 the applicant’s representative noted that the two key issues raised in relation to the cancellation of the applicant’s protection visa were based on information from an unknown person who was clearly aware of the identity of the applicant and the grounds on which he had sought protection in Australia and observed that this indicated that the unidentified person who made the allegations acted out of malice and the information which they provided should be given lesser weight.

With regard to the applicant’s residence in [Country 1], the submission states that the applicant has never resided in [Country 1] and repeats his earlier written and oral submissions.
With regard to the applicant’s marriage the submission states that both the applicant and his wife maintain that they were married in secret and the photographs provided are fake and were manufactured to undermine their claim for protection.
Finally, the representative submitted that the applicant and his family face a real chance of being persecuted or facing significant harm on return to Bangladesh if they return as failed asylum seekers. It also notes that the applicant’s children were both born in Australia and that the youngest child is not subject to this review application and may face the same treatment as his parents if the family is returned there.
In a statutory declaration dated 29 April 2020 the applicant repeated claims made in his earlier submissions. The applicant stated that he had never breached any Australian law or social norm and said that he believed his work [contributed] to the Australian economy. He said that he believed that his youngest son was an Australian citizen and his oldest child was now [age] years old, considered himself to be Australian and had no knowledge of Bangladesh. He submitted that it would be unjust treatment of his children to remove them from Australia. He also noted that his wife had received lengthy treatment for trauma due to the cancellation of the visa.
Finally, the applicant stated that while he did not know the identity of the person who had provided information to the Department or why they had done this, it was clear that the person was aware of his protection visa application and the grounds for the application and he believed that this person had provided false and misleading information to the Department in order to have him and his family returned to Bangladesh where their lives would be in danger.
In a statutory declaration dated 29 April 2020 the applicant’s wife state that on 14 April 2010 she attended the Pahela Baishakh (first day of the Bengali calendar) in the morning and then attended the wedding of her cousin in a local community centre in Sylhet City later in the day. She dressed in a manner which was appropriate to both occasions. The photographs which she was shown were taken at these events. She said that the applicant had not attended either event and his photograph must have been photoshopped into the photograph. She said that she did not know who had provided this information to the Department, but they were clearly aware of the content of their protection visa application and she believed that the person or persons involved had provided the information deliberately in order to have her and her family removed from Australia,
A statutory declaration from the applicant’s brother [was] also provided. It states that the applicant has never resided in [Country 1] and that if any application which he provided to the Department states otherwise this is the result of a mistake by friends or the lawyer who assisted him with his applications.
Was there non-compliance as particularised in the NOITCC?
The NOITCC notes that the Deed of Marriage provided by the applicant states the attendees at his wedding included one of his wife’s uncles who served as a witness and this appeared to contradict the claim that he and his wife married in secret against the wishes of her family.
In response the applicant and his wife both maintained that they had given an honest account of their wedding. They said that the Deed of Marriage states that two of the applicant’s wife’s uncles attended the ceremony as witnesses, but these men were imposters who pretended to be her relatives as a favour. As noted above, in his submissions to the Department the applicant described these men as friends. However, at the hearing he said that he only knew them by sight and did not know their names or anything about them. He claimed that he approached them on the day of his wedding and they both agreed to help him.
While I accept that the applicant could perhaps have persuaded friends to impersonate his wife’s uncles, in light of the information set out below regarding attitudes towards women and marriage in Bangladesh, I find the claim that two men with whom he had no prior relationship would agree to pretend to be related to his wife so they could marry without the consent of her family far-fetched and implausible.
An article in the Bangladeshi newspaper the Daily Star[4] reports that in Bangladeshi culture marriage symbolises not just a sacred union of two people, but the alliance of two families and extended relations as well. It states that, despite some changes in urban areas, the families typically decide on the bride and groom. According to DFAT[5] while progress has been made in relation to the status of women longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community. Most Bangladeshi women and girls, regardless of their religious community or socio-economic status, face persistent societal discrimination and a high risk of gender-based violence and sexual harassment. Attitudes towards the right of parents to determine who their daughters should marry are demonstrated by the fact that underage girls face a moderate risk of being subjected to early marriage. Other reports confirm this view. An academic report on women, politics and patriarchy in Bangladesh published in 2014[6] notes that Bangladesh has a traditional conservative and custom ridden social system based on patriarchy. By tradition and cultural norms, women have a much lower status compared with men. This discrimination starts at birth and continues through the different phases of life. Gender inequality is established at birth and continues throughout life.
[4] A Bangladesh Wedding Journal 11 November 2014. DFAT Country Information Report Bangladesh 22 August 2019
[6] Islam M. (2014) Women, Politics and Patriarchy: A Case of Bangladesh. In: Alston M. (eds) Women, Political Struggles and Gender Equality in South Asia. Gender, Development and Social Change. Palgrave Macmillan, London.

While this alone is sufficient for me to conclude that the applicant’s claim that the men described as relatives of his wife on his Deed of Marriage were imposters, I also note that, as the applicant confirmed at the hearing, parental consent is not required for an adult woman to marry in Bangladesh. While it may be that lack of parental consent and family participation would present practical problems with officials who hold traditional views, it is clear that the applicant and his wife could have married without the presence of members of her family. While I would not have rejected the applicant’s claims regarding his wedding for this reason alone, I find it to be a further indication that he has not provided an honest account of what occurred on that day.

100. After considering all of the relevant evidence, I find that the applicant concocted the claim that the men named as his wife’s uncles in his Deed of Marriage were imposters to overcome the fact that the Deed of Marriage which he had provided contradicted the claim that he married in secret and no members of his wife’s family attended the wedding. I find that these men are who the document states; relatives of his wife who attended their wedding as witnesses.
101. As noted above, the NOITCC also noted that applicant’s claim that he and his wife married in secret and against the wishes of his wife’s family appeared to be contradicted by information from an unnamed source including photographs which showed his wife’s family in attendance. In his initial response to the NOITCC the applicant maintained that no photographs had been taken at his wedding. In evidence to the Tribunal the applicant’s wife confirmed that the photographs showed her with member of her family, but denied that they were taken at her wedding. She said that they were taken at a New Year celebration and her cousin’s wedding which were held on the same day. She and the applicant claimed that someone must have altered the photographs in order to harm them.
102. In my view anonymous allegations from third parties should be accorded little or no weight unless they are accompanied by documentary evidence or they can be verified or confirmed from other sources. In this case, in addition to the written allegations the anonymous source provided copies of photographs which it was claimed were taken at the applicant’s wedding. At the hearing the applicant’s wife confirmed that the photographs showed her, her parents and siblings and members of her extended family attending a celebration or celebrations. Both the applicant and his wife maintain that the photographs were not taken at their wedding and that the applicant’s image was added to photographs which were taken on another occasion or occasions. While I acknowledge that is possible to manipulate and falsify photographs, for the following reasons I do not accept that this is the case with the photographs provided to the Department.
103. In the first place, I found the applicant’s wife’s evidence at the hearing regarding the photographs unconvincing. She claimed that photograph A was taken at a New Year’s celebration and that the other photographs might have been taken at a wedding. When I noted that she was wearing the same clothes in both photographs she said that they had been taken on the same day and photographs B and C were taken at her cousin’s wedding. It is clear from the clothes worn by the people in the three photographs and the background that all three photographs were taken at the same event, not at two different events. While I acknowledge that it is now over 8 years since these photographs were taken I find it highly unlikely that the applicant’s wife would have been unable to recall the nature of the event they depicted. While this alone would not have been sufficient for me to conclude that her evidence regarding these photographs was not credible, I find it to be an indication that this is the case.
104. Second and more significantly, the photographs all show the applicant and his wife seated on a couch flanked by two armchairs with swathed fabric as a backdrop surrounded by the applicant’s in-laws. These photographs are similar to other pictures of Bangladeshi weddings which show the bride and groom seated at the centre of couch surrounded by family members[7]. The applicant’s wife claims that two of the photographs were taken at a cousin’s wedding and she was seated next to her brother or a cousin when they were taken. I do not accept this claim. I do not accept that the applicant and one of her brothers or a cousin would have been photographed occuping the place clearly intended for the bride and groom while at her cousin’s wedding. I find that the photographs are genuine and that they show that the applicant’s in-laws attended his wedding.
[7] See for example images held at and Third and finally I note that this conclusion accords with the finding set out above regarding the information in the applicant’s Marriage Deed which also indicates that applicant and his wife were not married in secret and that the applicant’s in-laws attended their wedding.
Conclusion on non-compliance
106. I am satisfied that the applicant fabricated the claims that he and his wife married secretly without the consent of his wife’s parents. I find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
107. I am not satisfied that there was non-compliance as particularised in the NOITCC in relation to the applicant’s residence in [Country 1] or his wife’s contact with her family.
108. I have also considered the allegations regarding the applicant’s residence in [Country 1] and the applicant’s wife’s continued contact with her parents after leaving Bangladesh. The only source for these allegations is the anonymous letter provided to the Department in July 2015 and, in relation to the applicant’s residence in [Country 1], a statement in an application made by his brother [in] 2009. With regard to [his brother]’s 2009 application, I accept that it is possible that this was the result of an error on the part of the person who assisted him to prepare the application. In the absence of any supporting evidence these allegations I have given them no weight in relation to the issue of whether there was non-compliance as set out in the NOITCC.
Should the visa be cancelled?
109. 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).
110. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice and have regard to any prescribed circumstances: s.109(1)(b) and (c). These factors 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’
Prescribed circumstances
111. The prescribed circumstances are set out in r.2.41 of the Regulations.
The correct information
112. As discussed above, I do not accept that the applicant and his wife were secretly married against the wishes of his in-laws or that either of them was threatened or harmed by the applicant’s in-law in Bangladesh because of their marriage. I find that they were married with the agreement and support of both families.
113. I have given this factor considerable weight in favour of cancellation.
The circumstances in which the non-compliance occurred
114. The false information was provided in support of the applicant’s claims for protection and was clearly intended to bolster his claim for protection and residency in Australia.
115. This weights in favour of cancellation of the applicant’s visa.
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
116. The decision to grant the applicant a protection visa was based almost entirely on the false information provided regarding problems relating to his marriage. As noted above, he also claimed to fear harm for reasons of his political opinion, but the Tribunal did not make any findings in relation to these claims. And as discussed below, I find that the applicant concocted or exaggerated his claims in relation to his involvement in politics in Bangladesh.
117. This weights in favour of cancellation of the applicant’s visa
The present circumstances of the visa holder
118. The applicant lives in [named city] with his wife and two young children. He lived with his Australian sister from September 2012 until 26 October 2015 after which he and his wife moved into a rented home of their own. He has worked and supported his family for most of the time he has lived in Australia. He currently works [and] appears to be a valued employee.
119. In addition to his sister the applicant has other relatives residing in [named city]. He described his relationship with these relatives as cordial and quite close, but also stated that they were all busy which impacted on the frequency of their contact. He said that he had been involved with Bangladeshi community groups in the past, but due to his wife’s problems with depression in recent years he has not been able to participate in these activities.
120. Both of the applicant’s children were born in Australia. In response to the NOICC and in a submission provided following the hearing the applicant noted that his older son had grown up considering himself to be Australian, had never visited Bangladesh and did not have any knowledge of Bangladesh. As the applicant appears to have a Bengali speaking home and to associate with other people of Bangladeshi background in Australia, I do not accept that his older son has no knowledge of the culture or language or Bangladesh. However, I accept that he considers himself to be Australian and identifies primarily with Australian culture.
121. At the hearing I suggested that the applicant’s younger child was a citizen of Australia as he was born while his parents had the status of permanent residents in Australia. This was incorrect, as he was not born until their visas had been cancelled. However, as noted above, the validity of the cancellation of the applicant’s wife’s visa appears to be open to challenge. A successful challenge would mean that the applicant’s wife was a permanent resident of Australia at the time her younger son was born.
122. The applicant’s wife suffers from depression. Her mental health issues appear to have been quite severe as she was hospitalised in 2017. It appears that this bout of depression was triggered by the cancellation of the visas held by her and the applicant. Letters from a psychiatrist at [a] Hospital and a social worker at [as health] unit at [a] Community Centre confirm the applicant’s wife’s mental health issues. Both state that the depression was linked to cancellation of her visa and her fear or concern about being forced to return to Bangladesh. They also express concern about the care and support she would receive if she returned to Bangladesh. Updated information regarding the applicant’s wife’s mental health issues has not been provided and it appears that her mental health has improved since 2017. However, I accept that she continues to suffer from depression and anxiety related to the possibility that she may have to return to Bangladesh. Her history of depression suggests that she may experience similar problems in future, particularly if she has to return to Bangladesh. This would likely also impact on her ability to care for her children.
123. I have given the situation of the applicant’s wife and children significant weight in favour of not cancelling the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
124. The applicant continues to maintain that all the information provided in his protection visa application is true. There is no suggestion of any other issues relating to his obligations under Subdivision C of Division 3 of Part 2 of the Act.
125. The applicant’s continued insistence that he provided a truthful account of his situation in his protection visa weights in favour of cancellation. However, in the absence of any other concerns in relation to this issue, I have not accorded any weight for or against cancellation in relation to this factor.
Any other instances of non-compliance by the visa holder known to the Minister
126. There is no evidence before me which suggests that there have been further instances of non-compliance by the visa holder.
127. It is a reasonable and unexceptional expectation that visa holder comply with the conditions of their visa. have not accorded any weight for or against cancellation in relation to this factor.
Any breaches of the law since the non-compliance and the seriousness of those breaches;
128. There is no evidence before me which suggests that applicant has breached any of Australia’s law since he applied for protection in 2012.

129. It is a reasonable and unexceptional expectation that all Australian residents should comply with the law. I have not accorded any weight for or against cancellation in relation to this factor.
The time that has elapsed since the non-compliance
130. It is nearly eight years since the applicant applied for protection and provided the false information referred to above, including nearly two years between the time the allegations regarding the information was received and that issuing of the NOICC.
131. Eight years is a significant period of time. The applicant has established himself in the community and his children have always lived in Australia. While the applicant’s younger child is only [age] years old and unlikely to be impacted greatly by relocating with his parents, his older child is at school which means he has commenced his education in the English language and within the Australian system.
132. Taking into account the situation of the applicant’s children I have given a significant amount of weight to this consideration.
Any contribution made by the holder to the community
133. The applicant has established ties in Australia and contributed by his [work], his engagement with members of his extended family and the Bangladesh community in Australia.
134. I have given some weight against cancellation in relation to this factor.
Policy considerations
Whether there are mandatory legal consequences to a cancellation decision.
135. If the decision to cancel the applicant’s visa is upheld, he will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. However, there is nothing in the evidence which suggests that he would be unable to return to Bangladesh and I do not accept that indefinite detention is a likely consequence of the cancellation decision.
136. The possibility that the applicant might become an unlawful non-citizen and might be detained could also have an impact of the situation of his wife and children as he would be unable to work or provide them with emotional or other support. This is of particular relevance given his wife’s history of depression and the issues related to the cancellation of her visa.
137. As noted above, I have given significant weight to the fact that cancellation of the applicant’s visa would adversely impact his wife and children in considering whether to cancel the visa.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
138. As noted above, the protection visas granted to the applicant’s wife and older child where cancelled under s.140 and it appears that these cancellations may not be valid. However, in the current situation, cancellation of the applicant’s visa would also result in the cancellation of the visas granted to his wife and older child remaining in place.
139. Cancellation of the visas granted to the applicant’s wife and older child would potentially result in them becoming unlawful non-citizens and subject to being placed in migration detention, although as noted above, the evidence does not suggest that detention would be indefinite and it is more likely that they would remain in bridging visas pending departure or removal from Australia. However, it would likely result in the applicant’s children being removed from the only country they have ever known. While this is unlikely to have a significant impact on the applicant’s younger child, it is likely to have an adverse impact on the older child who, as noted above, has commenced school in Australia and identifies strongly as Australian. As discussed above, it is also likely to have an adverse on the applicant’s wife’s mental health.
140. As noted above, I have given significant weight to the negative impact of cancellation of the applicant’s visa on his wife and children.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
141. I have considered whether the applicant’s removal from Australia would result in a breach of Australia’s non-refoulement obligations in relation to the Refugees Convention.
142. As set out above, I find that the claims made by the applicant regarding his marriage and his fear of harm from his in-laws are false. I do not accept that he is at risk of harm from his wife’s family or anyone else in Bangladesh because of his marriage.
143. I have also noted the applicant’s claims regarding his involvement with the BNP in Bangladesh between 2008 and 2012. Much of his evidence to the Department and the Tribunal which determined his protection visa application was vague and unpersuasive and a number of his more significant claims were not raised prior to the Tribunal hearing. In these circumstances and in light of his demonstrated willingness to manufacture claims in support of his protection visa application, I find that these claims were also manufactured. I do not accept that he was threatened or harassed or harmed by members of the Awami League prior to leaving Bangladesh or that he would be at risk of harm from anyone if he returns to Bangladesh because of his involvement with the BNP.
144. I do not accept that removal of the applicant from Australia would result in a breach of Australia’s non-refoulement obligations under the Refugees Convention.
145. Australia is also a signatory to the Convention on the Rights of the Child (CROC). Article 3 of the CROC states that in all actions concerning children, the best interests of the child shall be a primary consideration. The applicant has two children who were born in Australia and reside with him and his wife. It is therefore necessary whether cancellation of the applicant’s visa, which would likely result in the entire family returning to Bangladesh would result in a breach of Australia’s obligations under this treaty. Both of the children hold Bangladesh citizenship and there would be no impediment to them returning to Bangladesh with their parents. Nor has any evidence been provided which suggests that they would not have a safe and secure future in Bangladesh where the applicant appears to have operated a successful business in the past. That said as noted above, the applicant’s older child strongly identifies as Australian and I accept that he would experience hardship if he was relocated to Bangladesh after living all of his life in Australia. The applicant’s wife’s mental health issues suggest that she may have difficulty caring for her children in the event that she was required to return to Bangladesh, a prospect which clearly causes her significant distress. Finally, while the impact of the relocation on the younger child would likely be limited as he is still very young, a successful challenge to the cancellation of the applicant’s wife’s protection visa would mean that he was born to an Australian permanent resident parent and which means that he would likely be an Australian citizen. In these circumstances being forced to return to Bangladesh with his parents would mean he was denied the right to live in and form a bond with the country of his citizenship.
146. I have given significant weight against cancellation in relation to this factor
CONCLUSIONS
147. I find that the applicant obtained a protections visa on the basis of claims which he concocted for the purpose of obtaining residency in Australia. Furthermore, I do not accept that he had a genuine fear of harm in Bangladesh for any reason at the time he applied for protection. And he continues to insisteng that claims I have found to be false are true. I have placed significant weight in favour of cancelling his visa in relation to these considerations.
148. On the other hand, he has now lived in Australia for eight years. He appears to have established himself reasonably well and has ties to the broader community. There is no suggestion that he has been other than a law-abiding resident during time he has lived in Australia. These factors provide some weight in favour of not cancelling his visa, but not, in my view, sufficient to overcome the weight which I have accorded to the factors set out above.
149. However, the applicant is not the only person who would be impacted by the cancellation of his visa. As discussed above, I find that cancellation would cause significant hardship for his wife and young children. While this matter is finely balanced, overall I find that the factors weighing in favour of cancellation are out-weighted by those which weigh against.
DECISION
150. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
151. The Tribunal has no jurisdiction with respect to the other applicants.
Roslyn Smidt
Member

[2020] AATA 3724

2 July 2020

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