1722514 (Refugee)

1722514 (Refugee) [2019] AATA 2486 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722514
COUNTRY OF REFERENCE:                  Iran
MEMBER:Michael Hawkins
DATE:12 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 12 April 2019 at 3:45pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – non-compliance – incorrect information – bogus documents – voluntary return and residence in Iran – inconsistent and paucity of evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 46, 48, 101, 102, 103, 104, 107, 109, 116, 140,189, 198
Migration Regulations 1994, Schedule 2,
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v MIMA [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v MIEA (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
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 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 she believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicants application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 October 2018 and again on 18 March 2019 to give evidence and present arguments. The applicant was represented by her registered migration agent at the first hearing but not at the second 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 applicant 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 applicant 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 of the Act in the following respects: 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.
The delegate concluded that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 43, 44, 45, 46 of the form 866C in her application for a visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 117 on the Departmental file BCC2017/2097691 has particularised information deemed to be in breach of ss.101(b) of the Migration Act.
The NOICC indicates [in] March 2011 the applicant arrived on Christmas Island as an unauthorised offshore maritime arrival claiming to be an Iranian citizen and seeking protection in Australia. She was accompanied by her [spouse].
The applicant attended an Entry Interview on 8 April 2011 in which she described incidents that led her to decide to leave Iran and travel to Australia. An Entry Interview was also undertaken with her spouse on the same day.
The applicant and her spouse attended an RSA (Refugee Status Assessment) interview with the Department on 30 May 2011 in which they both provided a statement of claims (Statutory Declaration). In that statement the applicant stated:
·     She is a [age] year old female born in [City 1], Iran. Her ethnicity is Persian and she is of no specific religion. She married her husband in 2006 who is with her in Australia however they have no children. Her parents and [siblings] reside in Iran.
·     The applicant left Iran because she feared that she would be killed by the Etella'at and the Iranian Government. She was employed as an [occupation] by [a government agency] in [City 1] and had access to reports about [a public welfare issue].
·     The applicant saw from the reports that [details deleted].
·     The applicant stated that at one time [details deleted]. This factor made her decide in doing something. Therefore she started researching [on this issue].
·     In October 2010 the applicant started downloading information from her computer which she gave to her friend [Ms A] an assistant to [an] ex-[official]. Her husband assisted her by giving the information to [Ms A] and also by collecting information about the excessive funding that was being provided by the government to [resolve the issue]. She further stated that this information was incriminating for the government.
·     [The ex-official] advised the applicant that these reports would put pressure on the government and she and her spouse hoped that it would make a difference.
·The applicant and her spouse worked on this together for about five months after which she started to receive disciplinary action at work. In November 2010 the applicant received a reprimand letter from her employer.
·In December 2010 she received a letter from the security department within [her agency] regarding a breach of intemet use while at work as she had been accessing sites such as Facebook, the BBC and various other sites which were not permitted and she was subsequently called to an interview as she was being investigated. The applicant believed that a colleague of hers had reported her.
·Following the interview she received a letter from the internal security department stating that she had breached security codes and advised that she would be interviewed by the Ettella'at. The applicant was subsequently interviewed and reprimanded.
·Her husband told [Ms A] about the warning notices and investigations she was being subjected to at work. [Ms A] advised her to be careful and told her husband to make plans to leave Iran.
·In February 2011 she left work for the day and left her laptop there. When she returned to collect it, it was no longer there. She realised that her life was in danger since the laptop also contained a copy of the book 'The Satanic Verses' by Salman Rushdi and having this material in her possession in Iran is considered a crime punishable by death.
·She believed that her laptop had been taken by someone with whom she worked and believed that her life would be in danger for having possession of this material as well as being found for passing information related to the [issues].
·She feared for her life and called [Ms A] who advised her and her husband to flee the country immediately.
·She claimed that since her arrival in Australia, the Ettela'at have raided their home in Iran and that her family who lived above their home at the time notified her of this event.
The delegate was not satisfied that the applicant met the definition of a refugee and she was referred for an assessment to an Independent Protection Assessment delegate on 19 July 2011.
On 19 March 2012, an Independent Protection Assessment delegate found that the applicant is a person to whom Australia has obligations for protection and the Minister lifted the bar to allow her to lodge an application for a Protection visa. The IPA delegate found (in part) that:
‘The opinions and activities attributable to the claimants will lead directly to official conduct against them amounting to serious harm of a type constituting persecution, should they return to Iran. Such conduct will emanate from one or more of the bodies entrusted with security in Iran, such as the Basij or Etilaat. I find on the basis of available country information regarding the violent and arbitrary nature of such forces, that this serious harm by officials against the claimants will involve conduct including but not limited to physical or mental violence, prolonged imprisonment and/or death. The arbitrary nature of the Iranian Government's response to dissenting citizens is such that the persecution amounts to serious harm as defined in s91R(2) and involves systematic and discriminatory conduct.
This will arise in the reasonably foreseeable future, with the essential and significant reason for this conduct being the claimants' dissenting political opinions, as outlined above. I accept that there is a real chance of this persecution occurring.
In summary, and in light of both available country information and the totality of the claimants' presentation, I find that the claimants have a real chance of persecution in the reasonably foreseeable future by Iranian Governmental or para-governmental forces. I find on the combined evidence available, that the chance is not insubstantial, nor far-fetched. As the risk of persecution faced by the claimants comes from the state or its organs, state protection is therefore not available to them. Safe relocation within Iran is also not reasonably open to them'.
On 7 June 2012 the applicant lodged a Protection visa application. In support of the application the applicant provided the RSA statement she referred to as her Statutory Declaration. In her application Form 866C, Application for a Protection Class (XA) visa, the applicant provided the following information at questions:
Question 41. I am seeking protection in Australia so that I do not have to go back to? The applicant answered; 'Iran'.
Question 42. Why did you leave that country? The applicant answered; 'refer to my statement.' The applicant referred to the contents of the statement (Statutory Declaration) she provided with her RSA.
In her statement the applicant declared that she would be killed by the Ettela'at and the government and described the reasons above which led to her departure from Iran. She declared that in her role of [supervisor] she had collated information about the [issue] and reported these findings to an associate in order to pressure the Iranian government to take action. Because of her actions the applicant was reprimanded and believed that her and her husband's life was in danger because of her actions.
Question 43. What do you fear may happen to you if you go back to that country? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) she provided with her RSA.
In her statement the applicant claimed that she would be killed by the Ettela'at and the government.
Question 44. Who do you think may harm/mistreat you if you go back? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) she provided with her RSA.
In her statement the applicant stated that the Ettela'at and the Iranian government will harm her if she goes back to Iran.
Question 45. Why do you think this will happen if you go back? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) she provided with her RSA.
In her statement the applicant claimed that she will be killed because she would be seen as anti-government.
Question 46. Do you think the authorities of that country can and will protect you if you go back? If not, why not? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) she provided with her RSA.
In her statement the applicant stated that the authorities want to kill her and will not protect her because she exposed them. She added that the government does not permit the behaviour that she has demonstrated as it is viewed as anti-(Iran) government.
The NOICC notes that on 14 June 2012 on the basis of this information as well as meeting all other relevant criteria the applicant was granted a subclass XA-866 Protection visa.
The NOICC notes that Departmental records indicate that since the grant of her Protection visa, the applicant has travelled outside Australia on several occasions. Departmental records indicate the applicant’s movements as follows:
·[November] 2012 departure from Australia
·[July] 2013 arrival in Australia
·[March] 2015 departure from Australia
·[July] 2015 arrival in Australia
·[March] 2016 departure from Australia
·[April] 2016 arrival in Australia
The NOICC notes that [in] April 2016 the applicant was interviewed by an Australian Border Force (ABF) entry officer at [Australian City 1] International Airport upon her return with her [husband] to Australia from [Country 1]. In her possession, namely on her mobile phone, was evidence of purchased airline tickets to Iran for both her and her husband for travel on '[Airline 1]' on 14 March 2015.
The NOICC notes that information also found on the mobile phone were messages in relation to enquiries regarding travel fares to Iran from a website named '[website name deleted]' [in] February 2015 which highly suggests that this was for seeking comparable fares to travel to Tehran from Brisbane, Sydney and Melbourne.
The NOICC notes that at the same time the applicant's husband's mobile phone was found to be located in Iran [in] May 2015 in the vicinity of [City 1] and [in] July 2015 in the vicinity of Isfahan while she was outside Australia.
The NOICC notes that when asked about the information located on her mobile phone the applicant stated that she did not know why her phone contained copies of tickets for travel to Iran for both of them or information regarding travel fares to Iran.
The NOICC notes that the applicant stated that she had travelled outside Australia twice since the grant of her Protection visa and visited her sick father in [Country 2] who has now passed away however she later admitted to the ABF officer that she had returned to Iran. It would appear that as the applicant remained in Iran after her husband's departure [in] April 2015 that she may have had his mobile phone in her possession.
The NOICC notes that the applicant initially travelled outside Australia between [November] 2012 and [July] 2013, five months after the grant of her Protection visa, and remained in Iran for approximately eight months and again for approximately four months between [March] 2015 and [July] 2015. Although she stated that she went to visit her sick father in [Country 2], she later admitted to the ABF officer that she had previously twice travelled overseas and that she had been to Iran.
The NOICC notes that in her answer to question 43 of the form 866C the applicant stated that she feared that she would be killed by the Ettela'at if she returned to Iran as she claimed that she had fled Iran because her laptop that contained the Satanic Verses went missing and she believed that her life was in danger. However this is incorrect because the applicant voluntarily returned to Iran since the grant of her Protection visa on two occasions, initially on [in] November 2012 five months after grant of the Protection visa and between [March] 2015 and [July] 2015 both occasions for a significant period of time.
The NOICC notes that country information advises that Iran is a regulated country where the movements and actions of its citizens are heavily scrutinised and its monitoring system of persons entering and exiting the country is sophisticated. If the applicant held the adverse political profile as she stipulated in her protection visa application and she was of interest due to her political profile by a government agency she would have most likely been apprehended by government authorities prior to departing or on arrival in Iran.
The NOICC notes that it appears that the applicant has engaged with the Iranian authorities on multiple occasions under her Iranian identity. It is noted that the applicant's previous Iranian passport number [expired] [in] 2015 and was issued prior to her arrival in Australia. It is generally expected that passports are renewed six months before expiry and therefore she would have engaged with the Iranian authorities in Canberra for the issue of new travel documents. This process would have required her to provide her details to the Iranian government thus alerting them to her circumstances and whereabouts and about her intended travel to Iran. In addition, because there were no visas or entry or exit stamps in her Australian Titre de voyage travel document suggests that she had another travel document to enter Iran, namely her Iranian passport.
The NOICC notes that upon her entry to and exit from Iran the applicant engaged with the Iranian authorities and returned to Australia unharmed which indicates that at the time of her protection visa application she did not come to the attention of the Iranian authorities and therefore she did not hold the claimed adverse political profile in Iran and did not fear the Ettela'at or the Iranian government. The fact that the applicant voluntarily returned to Iran on multiple occasions without incident raises concerns about the credibility of her claims for leaving Iran and it would appear that she did not hold the adverse political profile at the time of her Protection visa application.
The NOICC notes that in answer to question 44 of the Form 866C the applicant stated that she would be harmed or mistreated by the Ettela'at and the government if she returned to Iran. This is incorrect because the applicant has voluntarily returned to Iran since the grant of her Protection visa on two occasions, initially for eight months [in] November 2012 five months after grant of the Protection visa and for four months between [March] 2015 and [July] 2015.
The NOICC notes that had the applicant held the adverse political profile that she claimed in her Protection visa application and she was of interest to the Iranian authorities or an Iranian government agency, she would have most likely been apprehended by Iranian authorities upon her arrival or departure from Iran.
The NOICC notes that upon her entry to and exit from Iran the applicant engaged with the Iranian authorities and returned to Australia without incident. This indicates that at the time of her protection visa application the applicant had not come to the attention of the Iranian authorities and she therefore did not hold the adverse political profile or had a fear of returning to Iran.
The NOICC notes that in answer to question 45 of the Form 866C the applicant stated that she would be killed because she would be seen as anti-government as she held an adverse political profile. This is incorrect because the applicant has voluntarily returned to Iran since the grant of her Protection visa for twelve and a half months in total, the first time [in] November 2012 five months after the grant of her Protection visa for eight months and a second time for four and a half months between [March] 2015 and [July] 2015. As described above the applicant has voluntarily entered and departed Iran following the grant of her Protection visa.

The NOICC notes that had she held the adverse political profile that she claimed in her Protection visa application and that she was of interest to the Iranian authorities the applicant would have most likely been apprehended by government authorities upon her arrival or departure from Iran. Since her previous Iranian passport had expired the applicant voluntarily engaged with the Iranian authorities in applying for a new passport thereby alerting them of her intended travel to Iran.
The NOICC notes that upon her entry to and exit from Iran the applicant voluntarily engaged with the Iranian authorities and returned to Australia without incident which indicates that at the time of her protection visa application the applicant was not seen as anti-government and had not come to the attention of the Iranian authorities and therefore she did not hold the adverse political profile she claimed in her Protection visa application.
The NOICC notes that in answer to question 46 of the Form 866C the applicant stated that if she returns to Iran the authorities cannot and will not protect her if she goes back there and that they want to kill her because she had exposed them and she was seen as anti-(Iranian) government in addition to having the Satanic Verses on her laptop. This is incorrect because the applicant has voluntarily returned to Iran since the grant of her Protection visa on two occasions, initially for eight months [in] November 2012 five months after grant of her Protection visa and for four months between [March] 2015 and [July] 2015. As described above, had the applicant held the adverse political profile that she claimed in her Protection visa application and she was of interest to the Iranian authorities she most likely would have been apprehended by government authorities upon her arrival or departure from Iran.
The NOICC notes that upon her entry to and exit from Iran the applicant voluntarily engaged with the Iranian authorities, she freely moved around in that country and returned to Australia without incident. This indicates that at the time of her protection visa application the applicant was not seen as anti-government and she was not at risk of being killed by the Iranian authorities and therefore she did not hold the anti-Iranian political profile that she claimed in her Protection visa application.
The NOICC notes that the delegate considered that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 43, 44, 45, 46 of the form 866C in her application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with section 101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC through her representative in a submission received by the Department of Immigration in an email dated 11 July 2017.
In her response the applicant provided a submission and supporting documentation including the following:
·Statutory Declaration completed and signed by [the applicant] on 10 July 2017.
·Evidence of two money transfers to the applicant's [sister] in Abadan Iran dated [both in] March 2015 stating that it was for the purposes of a gift.
·Translation of identification card of [the] late father of the applicant listing his date of death [in] October 2013 at Abadan, Iran.
·Scanned copies of mortgage documentation in relation to the purchase of a new home by the applicant and her husband.
·Payslip of applicant's current employment.
·A letter dated [in] July 2016 from a mobile phone company [provider] outlining a transfer of service to a new handset.
·Translated letters from a psychiatrist (Iran) attesting to the applicant's mother's status of mental health dated [in] January 2014 and [in] March 2015.
·Photographs of the applicant, her husband and her mother in [Country 3] in 2015
·Photographs of the applicant and her husband in Australia
The submission notes that:
The applicant stated that the claim in the Notice that she and her husband had travelled to Iran on '[Airline 1]' [in] March 2015 is incorrect. The applicant stated that the reasons that this information was on her phone was because she had searched websites for airline tickets to Iran since her father was seriously ill, and now deceased, and that at the time, the couple were not sure whether they would see him again. However, although they initially decided to take the risk and visit her father, they never returned to Iran.
She stated that a friend of her husband offered the couple false Iranian passports in different names for a significant amount of money and referred to the evidence of money transfers which she sent to her [sister]. She further stated that she and her husband used the false passports which they obtained in [Country 4], however they travelled to [Country 3] instead and did not travel to Iran but she kept copies of the tickets for Iran travel in order to obtain a refund.
The applicant denied that she had admitted to the ABF officer at [Australian City 1] International Airport that she had returned to Iran and claimed that she was put under pressure to declare something to that effect.
The applicant further stated that in relation to the ABF officer locating her husband's phone in Iran [in] May 2015 it was possibly assumed by the ABF officer that photos on the phone resulted in their conclusion that she had travelled to Iran.
She added that during her interview with the ABF officer she advised them that her father had had a stroke and she had been to [Country 2] to visit him. She added here that at the time he could not move or eat anything and she therefore went there to visit and to take care of him.
In her Statutory Declaration the applicant stated that following her father's death, her mother had suffered a heart attack and was suffering from depression and she wanted to visit her (mother). She stated that her husband had a friend in Iran who could make false passports for [amounts deleted] each. She further stated that they had to pay for the passports in two instalments, the last payment due the day before being given the documents and she was advised that someone would hand over the passports to the applicant's husband in [Country 4]. The applicant added that she and her husband used these passports to travel from [Country 4] to [City 2, Country 3] and then [City 3, Country 3], where they have friends, and because they were false 'it was easy to stay there,' possibly inferring that being a smaller city there may not be the same passports checks as in [City 2, Country 3]. She further added that her mother visited them in [Country 3] when she was well enough to travel. She later stated that the passports were destroyed in the airport in [Country 4] on their return to Australia.
In relation to her husband's mobile the applicant stated that she purchased him a phone for his birthday in [2015] under a contract. She stated that when his phone was allegedly located in Iran [in] May 2015 her husband was in Australia. She further stated that the ABF officer sighted photos on her phone which her family overseas sent to her and that this is possibly the reason they believed that the applicant had been to Iran.
In conclusion the applicant stated that she did not provide false information in her application for her Protection visa and maintained the same claims she provided in 2012.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 30 August 2017.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far as the applicant failed to give correct information in her 866 visa application.
The delegate noted that in her response to the NOICC, the applicant provided conflicting information.
In the submission provided by her representative, the applicant referred to the airline tickets dated [in] March 2015 on her mobile phone that were sighted by an ABF officer on her return from [Country 1] [in] April 2016. She stated that she had plans to visit her father at the time since he had fallen quite ill and decided to purchase the tickets for a possible visit, however the applicant's father passed away in 2013 and the date of the tickets were March 2015. Therefore, because these event are separate to one another I find that this explanation lacks credibility.
As stated in the Notice, the applicant travelled offshore on three occasions since the grant of her Protection visa. In her outgoing passenger card [in] November 2012 the applicant declared that she was travelling to [Country 2] and boarded an [Airline 3] flight. In her outgoing passenger card [in] March 2015 the applicant declared that she was travelling to [Country 4] and boarded a [Country 4] Airlines flight. In her subsequent trip the applicant and her spouse travelled to [Country 1] for a holiday.
When interviewed by the ABF officer at [Australian City 1] International Airport [in] April 2016 the applicant initially stated that she had never been to Iran but that she had been to [Country 2] to visit her father who was ill and has since passed away. She later admitted to an ABF officer that she had been to Iran. In her response to the Notice the applicant claimed that her father had had a stroke and was unable to move or eat and because of this she decided to visit and take care of him. The identification certificate provided with the submission indicates that the applicant's father passed away in October 2013 in Abadan Iran. No evidence to support her claims that the applicant's father was in [Country 2] following his stroke or to verify that she had stayed there were provided in the response. Whilst I accept the fact that the applicant travelled overseas to visit her father on this occasion believing that she may never see him again, I find it implausible that her father would have been moved to [Country 2] to convalesce or live out his remaining time and then return to Iran. Therefore, I am of the view that the applicant travelled to and remained in Iran between [November] 2012 and [July] 2013 to spend time with, and because of his incapacity, assist the family to look after her father, before he passed away. This is confirmed by her admission to the ABF officer on arrival in Australia [in] April 2016 that she had previously travelled to Iran.
On her travel overseas [in] March 2015 the applicant stated that she was accompanied by her husband. The applicant's outgoing passenger card on this date indicates that she was travelling on a [Country 4] Airlines evening [flight] to [City 4, Country 4], which is approximately an eight and a half hour flight, and according to the e-ticket on her mobile phone onwards to Iran by [Airline 1] at 8.15 hours [in] March 2015. The applicant disputed the fact that she travelled to Iran and stated that her husband obtained false passports for both of them while at [City 4, Country 4] International Airport and stated that they travelled to [City 2] [Country 3] using these documents.
I find this implausible since the applicant was the holder of an Australian Titre de Voyage and was able to travel anywhere without any concern of being stopped at airports, particularly [City 2, Country 3], given the heightened security measures there in relation to recent events in that country. I am of the view that based on the e-ticket on her mobile phone issued [in] February 2015 the applicant voluntarily travelled to Iran with her husband on her genuinely issued Iranian passport during which time the couple may have travelled to [Country 3] for a short holiday and her husband returned to Australia [in] April 2015 whilst the applicant remained in Iran and later accompanied her mother for a holiday to [City 3, Country 3] as shown in the photographs submitted. By stating that she used a false passport for travel to and from [Country 3] provides an explanation why there are no [Country 3] entry or exit stamps in her Australian Titre de Voyage. In relation to the money transfers provided, it is common for persons in Australia to send money overseas to family. It is just as viable that the applicant transferred money to her family member to deposit into an account in Iran for the duration of her stay there.
Information available to the Department indicates that on 30 June 2017 the applicant has sponsored her [mother] for a Sponsored Family Stream Visitor visa to visit her and her sister in Australia. As part of that application, the applicant (applicant's mother) provided copies of all pages of her Iranian passport [issued] [in] 2014. Entry and exit date and visa stamps of that passport indicate that the applicant held a visa for and entered [Country 1] [in] March 2016 and departed [in] April 2016. These dates are consistent with the dates that the applicant and her husband travelled to [Country 1] between [March] 2016 and [April] 2016 on their Australian Titre de Voyage travel documents and as such I accept the fact that the applicant had arranged a holiday in [Country 1] together with her mother.
The passport also indicates that [Applicant’s mother] travelled to [Country 3] through [the] International Airport at [City 3] [Country 3] between [two dates in] June 2015 which is the time when the applicant was outside Australia and when she would have accompanied her mother on a holiday there as demonstrated by the photographs and credit card statement where purchases were made during that time frame.
I note from [the Applicants mother’s] psychiatrist reports that she was depressed following her husband's death therefore I also accept the fact that the applicant travelled overseas to provide emotional support to her mother for a period of time. However, I find it highly unlikely that the applicant stayed in [City 3, Country 3] for four and a half months while her mother stayed with her for only a week. I am of the view that the applicant travelled to Iran from [Country 4] with her genuinely issued Iranian passport using the e-ticket sighted in her mobile phone and while she remained in Iran she accompanied her mother for a short holiday to [City 3, Country 3] In her response, the applicant provided no evidence of an extensive stay in [Country 3].
Given the above findings it is apparent that, although she has concealed any evidence of an Iranian passport used for travel, the applicant has returned to Iran on two occasions for a considerable period of time for family reasons.
Therefore the fact that the applicant has voluntarily travelled to Iran and returned to Australia without incident contradicts her claims that she would be killed by or harmed by the Etella't or the Iranian government if she returned to that country and therefore her answers to questions 43, 44, 45, 46 of the Form 866C, lodged with her Protection visa application on 7 June 2012, are incorrect.
Review Hearing
The Tribunal conducted a hearing on 18 October 2018 and again on 18 March 2019. The applicant attended the first hearing with her representative and [solicitor]. She attended the second hearing alone.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel her protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in her application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of her visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in her application for a protection visa regarding her protection visa claims. The Tribunal noted that based on all of the evidence before her the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 14 June 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and her representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 7 June 2012 as having been read. The applicant and representative agreed.
The Tribunal enquired as to the status of the husband’s visa. The applicant replied that her husband’s visa was also cancelled by the Department and he was pending a review.
The Tribunal noted that the applicant’s Iranian passport expired [in] 2015.
The Tribunal noted that the applicant took her first trip just five months after successfully obtaining a protection visa on 21 November 2012. She remained abroad until [July] 2013. The Tribunal asked the applicant what the purpose of that trip was. The applicant replied that it was a trip to [Country 2] in order to see her dying father. The Tribunal asked the applicant what travel documentation she had used. She replied that she used her Australian documentation. The Tribunal noted that the copy of the Australian Titre de Voyage on the department file did not have stamps confirming travel to [Country 2]. The applicant then went on to make a point about the significance of her taking that trip to see her father. She stressed that it was a trip she gave deep consideration to because she had just received her visa and had managed to get a job with the [Australian State Government Department 1]. It was because of her need to see her father before he died that she reluctantly agreed to travel to [Country 2].
The Tribunal asked the applicant where she had stayed in [Country 2]. She replied that she had stayed with a friend. The friend’s husband was in the US at the time and as a consequence, the applicant was invited to stay with the friend. The Tribunal asked the applicant the address of the house that she was staying at. The applicant replied that she could not remember. The Tribunal noted that it was strange that the applicant could not remember an address she had stayed at for some eight months.
The Tribunal asked the applicant where her father was staying in [Country 2] at that time. The applicant replied that her mother and father were staying with her in the same house.
The Tribunal asked the applicant whether she had any evidence at all of her having been in [Country 2] for a period of eight months, for example, did she have any credit card records of use of that credit card in [Country 2] or did she have any mobile telephone records that indicated use of her mobile phone whilst she was in [Country 2]? The applicant replied that she didn’t think she had any such records as she wasn’t sure whether she could use her credit card in [Country 2]. In any event, she was of the view that her mother had paid for everything whilst she was in [Country 2].

The Tribunal asked the applicant about her father’s health. The applicant replied that her father had had a stroke in August of 2012. She advised that he managed to survive for 14 months after that stroke, despite doctors’ opinions.
She said that her father returned to Iran in July of 2013 and died in Iran in October 2013.
The Tribunal noted the Delegate’s finding that it was concerned by the fact that the father was supposedly in [Country 2] but his Death Certificate suggested he was in Iran. The Delegate commented that it was implausible that the father, who could not eat, drink or walk, would return to Iran.
The Tribunal asked the applicant whether she had any evidence of her father’s return to Iran. It also asked whether she had any evidence of her mother or father being in [Country 2], noting that the copy of the mother’s passport held on the department file was of a passport issued in [2014].
The Tribunal advised that in the absence of any such evidence as to her being in [Country 2] for an eight month period or her parents being in [Country 2] or her father having come to [Country 2] and returned to Iran, that it may be persuaded by the evidence that the Australian Border Force had provided that [in] April 2016, the applicant had advised it that she had been to Iran twice since receiving her protection visa. It is noted, however, that the applicant denies having made such a statement.
The Tribunal then discussed with the applicant her second trip which was [from] March 2015 until [July] 2015. This was a trip the applicant allegedly took to [Country 4].
The Tribunal noted the evidence of the Australian Border Force obtained [in] April 2016 wherein they found on her mobile phone copies of two issued tickets from [City 4, Country 4] to Iran on [Airline 1]. The Border Force personnel noted that it was virtually a connecting flight from the applicant’s flight from Australia to [Country 4]. Border Force had also noticed from the phone copies of quotes the applicant had obtained of flights from Brisbane, Sydney and Melbourne to Iran at about the same time.
The Tribunal asked the applicant why she had such issued tickets on her phone. The applicant replied that she needed to keep the tickets in order to get a refund. She claimed that she didn’t use the tickets.
The Tribunal asked the applicant when it was that she decided not to use the tickets that had been purchased, and instead decide to go to [Country 3]. The applicant replied that she had decided a few days before the scheduled flight.
The Tribunal also noted evidence produced by Border Force of a note in the husband’s wallet that asked where the airport gate was for the departing flight. Asked to explain the note, the applicant said she couldn’t and would need to ask the husband.
The Tribunal asked the applicant why it was that she had decided to go to [Country 3] instead of Iran pursuant to the tickets that had been purchased. The applicant provided a very detailed explanation in relation to her attempts at in vitro fertilisation. She explained that she had made attempts at IVF in Australia but had heard that IVF was a much cheaper process in [Country 3]. She commented that it was very expensive in Australia.
The applicant claims that whilst she was in [Country 3] she saw her mother for one week.
The Tribunal asked the applicant where she had purchased her tickets to [Country 3]. The applicant replied they had been bought in [Country 4]. The Tribunal asked the applicant whether the applicant had proof of the purchase of airline tickets to [Country 3], and whether she still had copies of the tickets or a record of their purchase. The applicant said she did not but would attempt to find it.
The Tribunal noted evidence from the Border Force officers that the applicant had purchased fake Iranian passports from a friend of the husband’s in Iran for use to go to [Country 3]. The applicant explained that they had purchased fake Iranian passports and had transferred money to her sister in Iran to pay for the fake passports.
The Tribunal asked the applicant why they needed fake passports. The applicant replied that she was concerned that Iranians might kill people in [Country 3], hence they used false names. The Tribunal asked the applicant what name she had used on her fake passport. The applicant replied, without hesitation, “[Alias 1]”. The Tribunal asked the applicant what date of birth had been used on the fake passport. She gave a date with a Persian birth year of [year deleted].
The Tribunal asked the applicant why she had used a fake passport to go to [Country 3] instead of her real travel documents, her Australian travel documents. The Tribunal noted that it made no sense why she wouldn’t use her Australian travel documents to travel to [Country 3] if it was the case that she wasn’t intending to go to Iran. The applicant replied that it was a great risk using her Australian travel documents in case she needed to go to Iran in an emergency.
The Tribunal asked the applicant whether she had kept copies of the fake passport. The applicant replied that they had thrown away the fake passports in [Country 4] and had not kept copies.
The Tribunal noted that it had asked the applicant the purpose of the trip to [Country 4] and then to [Country 3]. The applicant had replied that it related to her mother’s health and she needed to be able to see her mother. The Tribunal noted that the applicant had in fact only seen her mother for one week of the entire time she had been away which was some four and a half months.
The Tribunal again asked the applicant why she had obtained quotes for airline tickets from Australia to Iran. She replied that it was because of the emergency situation with her mother’s health.
The Tribunal discussed with the applicant the finding by Border Force officers of the geo-tracking of her husband’s phone which suggested that his phone had been tracked to Iran on two dates, being two dates that the husband was in fact back in Australia, the suggestion from Border Force officers was that the applicant had kept her husband’s phone. The applicant replied by referring to her previous evidence that she had purchased a new phone for her husband in [2015]. The Tribunal noted that this was some four months after the dates that her husband’s phone had been tracked to Iran. The Tribunal asked the applicant whether she had any evidence that might argue against the Border Force officers’ evidence. She argued that Border Force officers had drawn these conclusions from photos on that phone taken on those dates and she said that those photos had been sent to the phone by her friends in Iran. The Tribunal discussed with the applicant that the evidence of Border Force officers’ was that the phone had been geo-tracked to Iran on its maps, they had not referred to photos.
The Tribunal asked the applicant whether she had any evidence of the time she had actually been in [Country 3], being for a period of four and a half months, and except for the period of one week when she was there with her mother. The Tribunal asked whether the applicant had any credit card records of the time she was there noting that she had records in relation to the one week that she spent with her mother but no other records. The applicant said she did not but would try and find some.
The Tribunal asked the applicant where she had stayed in [Country 3]. The applicant replied she had been in [City 2, Country 3]. The Tribunal asked could she remember the names of any of the hotels she had stayed in. The applicant replied that without her records she could not.
The Tribunal discussed with the applicant why Australian Border Force Security would say in its evidence that the applicant had said to them that she had been to Iran twice. The applicant replied that she had no idea. She claimed that Border Force were putting things to her in such a way as to suggest that she was, in fact, going to Iraq and to join ISIS. She also said that Australian Border Force Security had said that they had located her phone in both Iran and Iraq. She said there were no interview tapes as the whole interview was done over the counter.
The Tribunal again expressed its concerns about the lack of evidence that the applicant had in order to prove that she had been, firstly, in [Country 2] for eight months instead of in Iran as found by the delegate on the basis of a comment made to Australian Border Force Security [in] April 2016 by the applicant that she had been to Iran twice.
The Tribunal also expressed its grave concerns that the applicant had no evidence of her time in [Country 3], no evidence of tickets having been purchased to [Country 3], no evidence of credit card expenditure or mobile phone use whilst in [Country 3] despite claiming to have been there for 4½ months. The Tribunal did note that she had evidence of the one week that she had spent with her mother in [Country 3] but felt that only served to bring into question more why she didn’t have any records of any other day or week whilst she was in [Country 3]. The Tribunal explained that without such evidence, it would be inclined to believe the evidence of Australian Border Force Security and agree with the findings of the Delegate. The Tribunal was concerned that the applicant’s trip to [Country 4] and then to [Country 3] was motivated by the ill health of her mother, yet the applicant had spent only one week with her mother of the four and a half months she was in fact abroad.
The Tribunal was concerned as to the plausibility of the explanation for acquiring fake Iranian passports when the applicant and her husband could have used their Australian travel documents to travel to [Country 3].
The applicant appeared a second time before the Tribunal on 18 March 2019. She was not accompanied by her representative on this occasion. The hearing proceeded without an Interpreter.
The Tribunal thanked the applicant for the submissions that she had made to the Tribunal following the earlier hearing.
The Tribunal restated and explained to the applicant that its concerns following the first hearing was that the applicant had no evidence of her time in [Country 3], no evidence of tickets having been purchased to [Country 3], no evidence of credit card expenditure or mobile phone use whilst in [Country 3] despite claiming to have been there for four and a half months. The Tribunal again noted that she did have evidence of credit card records of the one week that she had spent with her mother in [Country 3] but felt that only served to bring into question why she didn’t have any other records of any other week she had been in [Country 3]. The Tribunal reiterated its concern that the applicant’s trip to [Country 4] and then to [Country 3] was motivated by the ill health of her mother, yet the applicant had spent only one week with her mother of the 4½ months she was in fact abroad.
The Tribunal revisited these concerns.
The Tribunal dealt firstly with the geo-tracking of her husband’s telephone in Iran on two dates and two locations within Iran.
The applicant replied by presenting telephone records of [provider name deleted] phone for [phone number deleted]. The Tribunal noted that the account was in the name of the applicant. She claimed that this was her husband’s phone.
The applicant had highlighted many telephone calls that showed that the calls had originated from within Australia between the [two dates in] May 2015.
The Tribunal noted that, but also discussed that the applicant’s husband had admitted to leaving his phone with the applicant when he returned to Australia. The applicant reiterated that this account was, despite it being in her name, the phone of her husband.
The Tribunal also noted the previous explanation that she had bought her husband a new phone in [2015] and had a photo of its presentation to him. The Tribunal noted the letter from [phone provider] produced by the applicant but noted in particular that the letter stated that the new phone had issued in October 2016.
The Tribunal turned to the evidence that the applicant had submitted to it following the last hearing.
The Tribunal noted a letter from the applicant’s friend in [Country 2] and that that letter sought to confirm that the whole family had stayed with her for a period of eight months. The applicant agreed.
The Tribunal noted the applicant’s statement that accompanied the submission that her parents had stayed with her and her friend in [Country 2] for the duration except for periods that her father returned to Iran for treatment during which time he was looked after by her sister in Iran.
The Tribunal asked the applicant how many times her father had to return to Iran during her stay in [Country 2]. She stated that he returned to Iran in February 2013 and returned to [Country 2] in April 2013. He returned again in July 2013 which was at the same time that the applicant returned to Australia.
The Tribunal noted then that he had been away from [Country 2] for two months. The applicant confirmed that was the case and also confirmed that her mother returned with her father as well.
The Tribunal noted that this was a departure from the applicant’s statement in the first hearing. The applicant had stated in the first hearing that her mother and father were in [Country 2] for the whole time she was there and that when he returned in July 2013, he was very ill and unable to eat and walk. Further, the applicant has adduced evidence from [Airline 1] of just the one return by the father to Iran in July. The Tribunal was troubled by her omission to produce letters relating to both flights.
The Tribunal also noted that the letter from her friend states that the applicant, and her mother and father, stayed with the friend for eight months from November 2012. The applicant offered to get the letter amended.
The Tribunal noted the letters from [Airline 1], pointing out to the applicant that there appeared to be two versions of the letter. It noted the first version which appeared to have no watermark or stamp that had been provided to the Translator and then a second version that appeared after the Tribunal had requested to see the original of the document.
The applicant agreed, stating that after the original printout had been sent to Australia by email, the mother took the original letter back to [Airline 1] to have it stamped.
The Tribunal asked the applicant why her mother would do that and she replied that it would look more official.
The Tribunal noted the invoice from a [Country 3] doctor, Dr [name deleted], dated [April] 2015.
The applicant replied that this was an invoice from the doctor who ran the [Country 3] IVF centre.

100. The Tribunal noted that the invoice was addressed to [Alias 1]. The Tribunal noted that this was the name on the alleged fake passport.
101. The Tribunal noted that it looked like a GST invoice and asked the applicant how that invoice had been paid. She confirmed it was paid in cash.
102. The Tribunal then noted a letter from [a named person]. The Tribunal noted that this letter sought to confirm that the applicant had stayed with her since March 2015, except for the periods that they travelled around together.
103. The Tribunal discussed with the applicant that that letter does not refer to the applicant’s husband at all.
104. The Tribunal also expressed its concern that when the Tribunal had asked the applicant during the first hearing where she had stayed in [Country 3], for example, in which hotels - she had replied that she couldn’t, without her records, remember. The Tribunal discussed with the applicant that it was strange that she could not remember having stayed with her friend for virtually the entire time she was there. The applicant could not explain why she could not remember at the first hearing.
105. The Tribunal turned to the issue of the [Airline 1] tickets. It discussed with the applicant the issue date of the tickets, being [early] February 2015. The Tribunal asked the applicant how the tickets were issued in the context of which passport they were issued pursuant to.
106. The applicant replied that the [Airline 1] tickets were issued pursuant to her Australian travel documents.
107. The Tribunal noted that the [Airline 1] tickets appeared to have been issued before they had considered obtaining fake passports. The applicant stated that their friends had said to them that they would get in trouble in Iran if they used the Australian travel documents.
108. The Tribunal referred to the quotes she had obtained to travel to Iran directly from Australia. It asked why she had obtained those quotes. The applicant replied that she was looking at different ways to get to Iran. The Tribunal asked the applicant why she would make that enquiry some three weeks after having already purchased tickets on the [Airline 1] flight. The applicant replied that she couldn’t remember, but then speculated as to whether she had made enquiry some time before that and that the reply only came in [in late] February 2015. The Tribunal commented that it would be strange for a Travel Agent to take that period of time to respond.
109. The Tribunal asked the applicant on what travel documents the applicant intended to travel pursuant to the enquiries she had made on the [Airline 2] and [Airline 3] flights direct from Australia. She thought it would have been the Australian travel documents. The Tribunal noted that the applicant’s husband had said that they had intended to travel on the fake passports, whatever flights they travelled on.
110. The Tribunal revisited the issue of the applicant actually only seeing her mother for one week of the period of four and a half months she was away.
111. The applicant replied that her mother could only afford to travel for one week.
112. The Tribunal confirmed that the applicant’s mother could fly. She agreed that she could. The Tribunal noted that the mother’s passport recorded that she had flown to [City 3, Country 3] for one week and that she had subsequently flown to [Country 1] to meet the applicant and her family in 2016.
113. The Tribunal asked the applicant why they used fake Iranian passports, given the alleged risk to Iranians in [Country 3]. The applicant replied that they could only make fake Iranian passports in Iran.
114. The Tribunal shared with the applicant Country Information from the DFAT Report, specifically paragraph 5.32, again noting the risks associated with travelling on fake passports given how strict security measures were at Iranian airports.
115. The applicant replied that the provider of the fake passport had told them that they must travel on [a certain day in] March as he knew someone who was working on security at the airport that day and would usher them through.
116. The Tribunal discussed the implausibility of them being directed to that person at Immigration upon arrival. The applicant stated that that was part of the reason why they decided to go to [Country 3] instead.
117. The Tribunal asked the applicant about her daughter. The applicant replied that her daughter was now [age] months and was a very happy child. The Tribunal asked the applicant about her concerns for her daughter going to Iran. The applicant replied that she didn’t want her daughter to have the life she had had in Iran, with restrictions on her freedom. The applicant replied that she, whilst coming from a wealthy family, and having enjoyed a good education in Iran, still felt that women were restricted. The Tribunal noted that the applicant had no specific concerns for her daughter.
118. The Tribunal closed out the hearing by again asking the applicant why she would have admitted to Border Force having been to Iran on two occasions. The Tribunal noted that the Border Force officers’ evidence was very specific as to the admission, noting that she had admitted having been in Iran when she claimed to have been in [Country 2] and again in Iran when she claimed to have been in [Country 3]. The applicant replied that she had made no such admission. She recalled the engagement with the Border Force officers, stating that they attempted to bully her by suggesting that she had been in Iraq seeking to join ISIS. She stated that the interview was so incredibly unreal in what they were trying to have her agree to. She restated that she had never been to Iran.

Conclusion on non-compliance
119. The Tribunal was struck by both the amount of inconsistent evidence adduced for the hearing, and the sheer paucity of evidence, that is, evidence unable to be provided by the applicant in support of her claims. For example, the applicant claims that she visited [Country 3] for four and a half months, but has been unable to produce one shred of evidence in the form of a copy of the fake passport she states that she used to visit [Country 3], no tickets, boarding passes or receipts relating to her flight to [Country 3], no credit card records of any transaction of any kind whilst she was in [Country 3]. She produced a letter from a friend whom she claims she stayed with, but on examination, that letter does not refer to her husband staying with that friend, only herself. Furthermore, the letter was produced upon the invitation of the Tribunal to the applicant to produce evidence, and was produced against previous evidence of the applicant that she had been unable to remember where she stayed in [Country 3], even after the Tribunal prompted her to recall the names of any hotels. The Tribunal expressed its surprise then when the applicant admitted that she stayed with a friend for the whole time she was there, except for when they travelled together.
120. The Tribunal was even more concerned about the visit to [Country 2]. The applicant has not a scintilla of evidence, no passport (given that she still had a valid Iranian passport current at that time) stamps evidencing a stay in [Country 2], credit card statements, telephone records – only a letter from a friend again produced after the first hearing which the Tribunal will reference below. There is also inconsistent evidence as to how long her parents stayed with her in [Country 2], at first it being for the whole time she was there, and then subsequently in a statement produced after the first hearing, and restated during the second hearing, that her parents returned to Iran for a two month period. She then produced a letter from [Airline 1] of one return trip to [Country 2] but not the other. The Tribunal will discuss its concerns about the credibility of that evidence below.
121. The Delegate decided that the applicant did return to Iran for a period of eight months from November 2012.
122. The Delegate also decided that the applicant did return to Iran on [in] March 2015 until her return to Australia, through [City 4, Country 4], [in] July 2015. The Delegate based this decision on the discovery of tickets to Iran with [Airline 1] that were located on the applicant’s mobile phone by ABF Officers at [Australian City 1] International Airport [in] April 2016. Whilst the applicant maintained that she had not used the tickets to Iran and had, in fact, travelled to [Country 3] on a fake passport, the Delegate determined that that explanation was implausible given that she could have travelled to [Country 3] on her Australian Titre de Voyage documents. The Delegate determined that the applicant had not travelled on fake passport documents, but instead had travelled on valid Iranian passport documents in her own name. The Delegate determined that the applicant has concealed evidence of a valid Iranian passport. Accordingly, given that the applicant had returned to Iran on two occasions between [November] 2012 and [July] 2013 and again between [March] 2015 and [July] 2015, and that her husband had also returned to Iran between [March] 2015 and [April] 2015, then both the applicant and her husband, having returned to Iran and having remained there for a significant period of time without being harmed or killed and having returned to Australia without incident, indicates that neither she or her husband held the adverse political profiles they had claimed in their Applications for Protection visas.
123. The Tribunal had asked the applicant about her Iranian passport. The applicant had replied that she had no valid passport, indeed the passport that she relied upon to arrive in Australia in 2011 had expired [in] 2015.
124. The air tickets to Iran on [Airline 1], as found on the applicant’s mobile phone by ABF officers, were in the actual names of the applicant and her husband. They were not in false names and not in the names of the fake passports allegedly purchased and used by the applicant and her husband to travel to [Country 3]. Accordingly, for an argument to be sustained that the [Airline 1] tickets were actually used, then they must have been used in conjunction with a valid Iranian passport or a fake Iranian passport in the actual names of the applicant and her husband.
125. The Tribunal has no evidence that the applicant actually has a current and valid Iranian passport.
126. Equally, the Tribunal has no evidence of the fake passports allegedly acquired and used to travel to [Country 3]. Furthermore, and as indicated above, the Tribunal was particularly troubled by the lack of any evidence from the applicant relating to her visit to [Country 3]. The Tribunal could put no weight on a photo submitted by the applicant of she and her husband purportedly taken in [Country 3], as it had no date stamp and nothing in the photo linking it in any way to [Country 3]. It was a photo that could have been taken anywhere at any time. The same applies to all photos tendered and accordingly no weight has been given to them.
127. The Tribunal also noted the inconsistency in the applicant’s evidence in relation to the travel to [Country 3]. The Tribunal was troubled by the fact that the applicant could not recall where she had stayed in [Country 3]. But later produced a letter from a friend that stated that she (not her husband) had stayed with her for five months, except for when they travelled around.
128. The Tribunal discussed with the applicant that she only had credit card information relating to the one week she shared with her mother in [City 3, Country 3]. The Tribunal accepted that and accepts that the applicant did take her mother to [City 3, Country 3] for a week’s holiday. The provision of that evidence puts into stark contrast the lack of any other evidence available in support of the applicant’s claim that she was in [Country 3] for longer than one week.
129. The Tribunal also discussed with the applicant why she had used a fake passport if she knew she was only going to [Country 3], as she may have used her Australian travel documents which would not have caused any issues for her at all, acknowledging the risks she was taking using a fake passport. The Tribunal pointed out to the applicant that she actually heightened the risk against herself by using a fake Iranian passport, a risk which would have been minimised had she used her Australian travel documents. The Tribunal did not find the applicant’s explanation at all compelling.
130. The explanation by the applicant however, that a fake Iranian passport was used so that visas did not need to be obtained to travel to [Country 3] did have some element of plausibility, however, the Tribunal is not aware of any barriers to the applicants obtaining visas to travel to [Country 3] using their Australian travel documents, especially as they had obtained visas to travel to [Country 4].
131. The Tribunal has the gravest concerns about the credibility of the applicant’s claims relating to her acquisition of fake passports for her travel to [Country 3].
132. In her submission to the Tribunal received on 1 November 2018, the applicant presented two versions of a letter from [Airline 1] stating that the tickets purchased in February 2015 in the names of the applicant and her husband were not used and were subsequently resold. The Tribunal noted that there were two versions, one being a scanned and emailed version that did not contain any watermark or stamp over the signature of the writer of the letter, both which were clearly visible on the originals of the letter from [Airline 1] that the Tribunal had subsequently requested. Whilst the Tribunal accepted the applicant’s husband’s explanation that a low resolution scan of the letter may not have recorded the watermark, that did not explain the absence of the stamp.
133. The Tribunal did, however, note the explanation of the applicant as to the existence of two versions of that letter. The applicant had explained that her mother, when the Tribunal had requested that the original of the letter be sent to it, had taken it upon herself to return to the office of [Airline 1] and request that a stamp be placed over the signature. When asked why the mother would do that, the applicant replied that she did that in order to make it look “more official”. The fact that a letter could be obtained from [Airline 1] in the form requested, and then to be able to go back to the office and request that it be made more official, causes the Tribunal, in also considering Country Information and the prevalence of the creation of fraudulent documents in Iran, to doubt the genuineness of the letter presented. The Tribunal gave the letters from [Airline 1] any weight.
134. The Tribunal was also troubled by the fact that the applicant had gone to [Country 3] ostensibly to visit her ill and depressed mother yet she was in [Country 3] for some four and a half months but only saw her mother for a period of one week.
135. The Tribunal was concerned by the geo-tracking information obtained by the ABF officers from the applicant’s husband’s mobile telephone. ABF officers noted that the mobile phone had been traced to Iran [in] May 2015 in the vicinity of [City 1] and [in] July 2015 in the vicinity of Isfahan.
136. The Tribunal does acknowledge that the locating of the applicant’s phone in Iran on those two dates is after the date that the husband had returned to Australia. However, the applicant’s husband did state to the Tribunal that he had left his mobile phone with his wife upon his departure for his return home. Therefore it was the applicant who had the mobile phone in Iran on those dates.
137. The Tribunal noted that the applicant’s husband could not explain how his phone was located in Iran other than to offer that there must be something wrong with his phone.
138. The Tribunal noted a letter from [phone provider] suggesting that the applicant’s husband had received a new phone handset in October 2016. The applicant stated that she gave him a new phone for his birthday in [2015] and produced an undated photo in support of that contention. Consequently, the Tribunal places little value on the photographic evidence. It further places no weight on the phone records submitted in the form of the telephone bill, as the phone bill submitted relates to the phone of the applicant. The applicant’s husband acknowledged that he left his phone with his wife when he left her in April 2015. The [phone provider] letter suggests the new phone was issued in October 2016, which is after the ABF officers had inspected his phone after their arrival back from [Country 1].
139. The Tribunal does note from the applicant’s submission, that the applicant presented evidence of a receipt to visit a Doctor in [Country 3] [in] April. However, on inspection of that letter, the Tribunal is of the view that it has been fabricated, with an English invoice component copied onto a letterhead that is wholly in [the language of Country 3]. Furthermore, the invoice is in the form of an Australian GST Invoice. [Country 3] does not operate pursuant to a GST, rather a VAT. The Tribunal gave that receipt no weight.
140. Finally, the Tribunal remains particularly concerned by the admissions made by the applicant to ABF Officers that she had been to Iran twice, once in November 2012 and the second time from March 2015. When queried about this admission by the applicant, the applicant replied, she did not make that admission. She went on to state that the experience with the ABF officers was unreal, with them attempting to put words in her mouth to the effect that they had been to Iraq and wanted to join ISIS. The Tribunal noted that, but stated that the statement of the ABF officer was very specific as to the applicant admitting she had been to Iran twice.
141. The Tribunal can understand the Delegate’s determinations. The applicant’s explanations are flawed and lack any corroborating evidence.
142. The applicant had a valid and current Iranian passport that may have been used for her trip to Iran in November 2012. She has not produced that passport to prove that she did not use it. The Tribunal is satisfied that she did return to Iran in November 2012.
143. If the Tribunal had incontrovertible evidence that the applicant was in possession of a valid and current Iranian passport in March 2015, it would have no hesitation in concluding that the applicant had returned to Iran, using tickets purchased on [Airline 1], [in] March 2015. The Tribunal does not accept the applicant’s claims that she visited [Country 3] on fake passports as credible.
144. The issue that remains for the Tribunal is whether the applicant had a valid and current Iranian passport to enable her to travel to Iran.
145. Notwithstanding that the applicant was an illegal maritime arrival, with a valid passport, it would be possible for the applicant to seek a renewal of that passport through the Iranian Embassy in Canberra, or to obtain a Lassiez Passer to facilitate her travel, also from the Embassy.
146. It might also be possible to obtain a fake passport as the applicant proposed, which she was prepared to travel on, notwithstanding the risks identified in the Country Information referenced herein. In fact, Country Information confirmed that there has been trade in fake passports.
147. Either way, it is not impossible for the applicant to have obtained a travel document that would have facilitated her return to Iran.
148. 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.
149. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
150. In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]

151. This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

152. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
153. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran on two occasions for eight months and then four and a half months and the husband’s return for five weeks, as the basis for finding the applicant had provided incorrect information in her Protection visa application about her fears, risk and profile in Iran.
154. The applicant and her husband have consistently denied returning to Iran, both to the Delegate and to the Tribunal. As such, the Tribunal has been unable to determine the real reasons for their return to Iran, other than to visit ailing parents of the applicant. The Tribunal is unaware of the circumstances that met the applicant and her husband upon return to Iran, for instance, whether they were interviewed upon arrival or departure or whether they remained in hiding for the time that they were there.
155. It is for this reason that the Tribunal, having found that the applicant and her husband have returned to Iran, is unable to make any finding other than that the applicant has provided incorrect information in her original Protection visa application.
156. The Tribunal has formed an impression that the applicant and her husband have either been advised or have themselves formed the view that admission by them of a return to Iran will automatically see them have their Protection visa cancelled. The Tribunal has formed the impression that the applicants wish to remain in Australia and make Australia their home and, accordingly, they have been too terrified to admit they returned to Iran and have fabricated, albeit very limited, evidence in support of arguments that they have visited, in the applicant’s case, [Country 2] and [Country 3], and in the applicant’s husband’s case, [Country 3].
157. The Tribunal considers this unfortunate for the applicant and her husband as it may have been that each may have been able to provide evidence that they returned to Iran despite their fears because of their concern for the applicant’s ill parents and that the means by which they returned to Iran and stayed in Iran may not have been in contradiction of the information provided by them in their original Protection visa applications.
158. Be that as it may, the Tribunal is left with the evidence before it and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
Should the visa be cancelled?
159. 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).

160. 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 applicant 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 applicant

· the subsequent behaviour of the applicant 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 applicant 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.

161. 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.
162. The applicant claimed in her Protection visa application that she would be killed or harmed by the Ettela-At or the Iranian government if she returned to Iran because she was known to them because of her activities associated with her spouse in her previous employment and was previously involved in anti-government demonstrations.
163. The correct information is that the applicant was not known to the Iranian authorities and did not hold the adverse political profile as claimed in her statement. Despite her claimed fears, the applicant travelled to Iran twice, departing Australia [in] November 2012 and [in] March 2015, she remained in that country without hindrance or harm from the Iranian authorities and returned to Australia without incident.
The content of the genuine document (if any)
164. The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.

165. The decision to grant the applicant her protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.
166. As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that she had been given incorrect answers about her claims in her application for the visa.
The circumstances in which the non-compliance occurred.

167. Upon arrival in Australia via Christmas Island, the applicant was transferred to [Australian City 1]. She remained in an immigration centre for eight months. Thereafter, she was transferred to [another Australian city] for four months and then returned to [Australian City 1] again and was released conditionally into the community. The applicant completed a protection visa application in [Australian City 1] with the assistance of a Migration Agent, after a finding by the Independent Protection Assessment Delegate. The Tribunal noted that the applicant’s claims in her protection visa application largely followed the findings of the Independent Protection Assessment Delegate.
The present circumstances of the applicant.

168. The Tribunal noted that the applicant now had a [age] month-old baby.
169. The applicant advised the Tribunal that she was working in [Australian State Government Department 2]. She further advised that she and her husband had bought a house at [location deleted] and provided documentary evidence of the mortgage. The Tribunal asked the applicant whether she was performing any community work at present. The applicant replied that she was not presently doing so but had done volunteer work when she was in detention. Asked the nature of such work, she said she helped friends with their [problems].
The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act.

170. The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless claimed to have sought out and purchased a fake Iranian passport to use for international travel.
Any other instances of non-compliance by the applicant known to the Minister.

171. The applicant advised that there had been no breaches of her visa terms.
172. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance.

173. The Tribunal notes that her visa was cancelled in 2017 and that one and a half years have since elapsed. The applicant advised that the cancellation of her visa was causing her great stress, that she can’t travel and that therefore she cannot see her mother. She said it was also impacting on her own health.
Any breaches of the law since the non-compliance and the seriousness of those breaches.

174. The applicant advised that she has not breached any law, not even a traffic offence.
175. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community.

176. The applicant reiterated her volunteer work whilst she was in detention.
177. The Tribunal accepts that the applicant has worked and contributed to the taxation system. The Tribunal also accepts that the applicant has integrated into her community and has formed a number of close friendships.
Whether there would be consequential cancellations under s.140.
178. There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
179. The Tribunal is satisfied that the applicant’s child is entitled to Iranian citizenship.
180. Australia is a signatory to the Convention of the Rights of the Child (CROC), and has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration. The Tribunal notes this requires a decision-maker to have regard to the consequences of cancellation, including whether a child will be separated from a parent.
181. In the applicant’s circumstances, she will not be separated from her infant child as the outcome of the review will be the same as the outcome of the review of her husband’s application. The Tribunal acknowledges the concerns the parents have for the child in terms of the comparative freedoms the child may have in Australia, and takes that into consideration.
182. If the applicant’s visa is cancelled, she would be subject to s.46(1) of the Act, barring him from applying for a further Visa in Australia (including a Bridging Visa) unless the Minister exercises her non-compellable discretion. Further, if the applicant’s visa is cancelled, she would be subject to the s.48A(1B) bar. She would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.
183. The Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.
Conclusion
184. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By her deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
185. However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time. Since arriving in Australia, she and her husband have undertaken an IVF program and they have one Australian-born child. The applicant has no known criminal record. The applicant is highly qualified in [occupation] and presently works for the [Australian State Government Department 2]. Prior to that, she was employed with the [Australian State Government Department 1], albeit she was unable to take up that position. It is not unreasonable to expect that given her qualifications and international experience in working in [occupation], she is imparting her knowledge and experience to others which will benefit a fast-growing industry sector. Her husband is similarly employed. It is assumed that the qualifications of the applicant and her husband are such that employers such as the [Australian State Government Departments 1 and 2] place great value on them in what would be considered security sensitive environments.
186. The Tribunal notes that the applicant and her husband have purchased a house together at [location deleted] and have secured a mortgage to achieve that. The evidence would suggest that they have integrated favourably into their community.
187. The applicant’s presence in Australia and the contributions that she and her husband have made to Australian society have moved the Tribunal.
188. However, given all of the findings herein, including the willingness of the applicant to deceive the Australian authorities, and to deliberately maintain before the delegate and this Tribunal that she travelled to places other than Iran, the Tribunal is satisfied that the applicant is not a generally credible witness, and even allowing for the overweighting of the considerations identified above and particularly in paragraphs 186 – 188, is unable to exercise its discretion in the applicant’s favour.
189. After considering all of the evidence cumulatively, but considering particularly the applicant’s duplicity, the Tribunal does not accept that it is unreasonable that the applicant’s visa be cancelled, even allowing for the substantial impact it would have on her, her husband and her Australian-born child.
190. 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, and it has, after having regard to all the relevant circumstances, concluded that the visa should be cancelled.
DECISION
191. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins
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)     applicants in stated circumstances; or
(c)      applicants in a stated class of people (who may be applicants in a particular place); or
(d)     applicants in a stated class of people (who may be applicants in a particular place) in stated circumstances.
(2)If the applicant 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 applicant in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the applicant 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.

[2019] AATA 2486

12 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction