1816702 (Refugee)

1816702 (Refugee) [2019] AATA 5878 (23 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816702
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Shahyar Roushan
DATE:23 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 May 2019 at 4:57pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Lebanon – incorrect information in visa application – claimed fear of harm – female genital mutilation (FGM) – physical and psychological abuse at the hands of husband’s family – credibility issues – inconsistence evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES

MIEA v Wu Shan Liang (1996) 185 CLR 259
Sullivan v CASA (2014) 226 FCR 555

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 first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
Background
The applicants are mother and daughter.
The first named applicant (the applicant) is a [age]-year-old Sunni Muslim and a national of Lebanon. She is married and has three daughters and three sons. She first arrived in Australia on a [temporary visa] [in] September 2010 and remained for three months. Subsequently, she arrived in Australia with her youngest daughter, the second named applicant ([Ms A]), on another [temporary visa] [in] June 2012.[1]
[1] Throughout the decision ‘[Surname 1]’ and ‘[the applicants’ surname]’ have both been used to identify various family members according to the spelling of their surname as appears in various Departmental documents.
On 5 November 2012, the applicant lodged an application for a protection visa and included [Ms A] in her application as a dependent. Her application was refused on 14 February 2013 and, on 20 February 2013, she applied to the then Refugee Review Tribunal (RRT) for a review of that decision. On 13 August 2013, the RRT remitted the decision back to the Department with the direction that the applicant satisfies s.36(2)(a) of the Act. On 14 July 2014, the applicant and [Ms A] were granted protection visas.
On 25 May 2018, a delegate of the Minister cancelled the protection visas on the basis that the applicant had provided incorrect information in connection with her application for a protection visa.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. [Ms A’s] visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Protection visa application
The Department
In her protection visa application Form 866C, in response to questions 43-48, the applicant claimed that she was seeking protection in Australia so that she does not have to go back to Lebanon. In response to question 43 (why did you leave that country), she stated:
I left Lebanon due to the prevailing sectarian violence and threats to my personal safety. I am a Sunni Woman and fear that I may be harmed by Allawites and supporters of the Syrian regime on the basis of my religion and being imputed with an adverse political opinion.
My close relatives are high profile supporters of the March 14 political block who fiercely oppose the Syrian regime. My relatives have been supporting political figures who are staunch advocates of the Syrian uprising. Two of my close relatives have been killed in recent months by supporters of the Assad regime while others continue to be threatened.
I fear that I too will be targeted given my family’s political profile.
In response to question 44 (have you experienced harm in that country), she stated:
I have not suffered any physical harm however I have been threatened by supporters of the Syrian regime. Although I have not engaged directly in any form of political discourse I will be targeted simply because of my religion and due to the political profile of my relatives.
In response to question 45 (what do you fear may happen to you if you go back to that country), she stated:
Acts of politically motivated retribution including, extra judicial killings and kidnapping is an ongoing feature of the sectarian and political struggle in my country. Scores of Lebanese citizens have been killed or kidnapped on their basis of their political allegiance. Lebanon is polarized with the majority Sunni supporting the Syrian uprising, whilst the Shiites and Allawis continue to support the Assaad regime.
I fear for my safety in light of the rising political tensions and state of lawlessness where individuals continue to be either killed or kidnapped simply on the basis of their political affiliation or religion.
In response to questions 46 and 47 (who do you think may harm/mistreat you if you go back and why do you think this will happen to you if you go back), she stated:
I fear that I may be harmed by Hezbollah, Allawi and supporters of the Syrian regime…because I am Sunni Moslem.
The applicant did not attend her Departmental interview and her then representative requested that a decision be made on the basis of the material before the delegate.
On 14 February 2013, a delegate of the Minister refused the applicant’s application for a protection visa.
The RRT
The applicant applied for a review of the delegate’s decision on 20 February 2013. In support of her application, she provided the RRT with new claims for protection in the form of a statutory declaration, dated 9 August 2013. The applicant made the following claims in her statutory declaration:
She comes from an extremely conservative part of Lebanon. She underwent female genital circumcision at a very young age. Her marriage was arranged and her relationship with her husband was ‘dominated’ by his father and sisters and she suffered physical, sexual and mental abuse.
Her husband’s sisters used to beat her and her husband would always side with them. Her husband insisted that she continued to live with his family. Her daughters were also subjected to similar mistreatment. Her older daughters were also circumcised despite her vehement objections. There are ongoing objections towards her eldest daughter who is still unmarried.
Her youngest daughter, [Ms A], was spared early circumcision because she has suffered serious infections, but her husband and his family are now determined to carry out this procedure before she gets married. The delay in her circumcision has caused enormous grievance between the applicant and her husband.
She continues to fear for her own welfare, as well as the welfare of her young daughter. She wants to protect her daughter from the same physical and mental harm she and her other daughters have been subjected to. She wants to save her from female genital mutilation.
On 12 August 2013, the applicant attended a hearing and gave oral evidence to the RRT. In her evidence, she provided the following information:
·Her husband had arrived in Australia two and half weeks before the hearing. He came here for business but also to take her back with him and has been making threats.
·At the time of the hearing, her daughters in Lebanon were residing with her in-laws. When she was in Lebanon, her in-laws kept her at home and did not want her to leave the house. They circumcised her daughters and she had to escape so that her younger daughter would not be subjected to the same procedure. Her husband is good to her, but does not take sides with her. It is out of his control and he has also been threatened. Her in-laws tried to ‘torture’ her daughters. They don’t let them go to school, they don’t let them go out of the house and they tried to force her daughters to wear the scarf (hijab). Her husband thinks her daughters should undergo circumcision because it is a religious obligation. However, her husband would not dare do anything to her youngest daughter here in Australia. She does not communicate with her in-laws, but they have conveyed threats against her through her children.
·She came to Australia secretly by leaving at night. She made all the arrangements in secret. Her sisters in Lebanon helped her to obtain a passport and a visa to Australia. Her in-laws went ‘crazy’ when they found out she had come to Australia. They made threats that they wanted to kill her and that they would not let her see her kids.
·She would be unable to relocate within Lebanon because she only has one house and her husband cannot afford to find another house because his finances are not so good.
On the basis of her evidence, the RRT remitted the matter for reconsideration with the direction that the applicant satisfied s.36(2)(a) of the Act. The applicant was granted a protection visa on 14 July 2014.
The cancellation
The notice
On 5 March 2018, in accordance with s.107 of the Act, the applicant was issued with a Notification of Intention to Consider Cancellation under Section 109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.
The NOICC set out the applicant’s responses to questions 42-47 of her form 866C and her additional claims made in her RRT review. The notice also referred to evidence given to the Department during an offshore interview held on 15 January 2015 in relation to an offshore application for a [Partner] visa lodged by the applicant’s spouse, [Mr B] (or [Surname 1]). The applicant was listed as the sponsor and her daughters, [Ms C] (or [Surname 1]) and [Ms D] (or [Surname 1]), were listed as dependents. According to the notice, the following information was given to the Department during the interview:
·     [Ms C] is studying [Discipline 1] at [University 1], she also studied [Discipline 2] and has a degree in [Discipline 2];
·     [Ms D] is in year [number] and attends [a] school and went to purchase her school books by herself; and
·     Both [Ms C] and [Ms D] reside with their father in their family home. Their aunts live nearby.
In addition, the notice referred to a second interview, held on 8 October 2015, and attended by [Mr B], [Ms C] and [Ms D]. The notice stated that the applicant’s husband and her daughters confirmed previous statements made in January 2015 and set out the following additional information given in the course of the interview:
·     Both of the applicant’s daughters spend time with their friends, but her spouse is unaware who their friends are;
·     Both of the applicant’s daughters claimed the applicant has no issues with her in-laws and that her daughters get along well with their aunts;
·     Both of the applicant’s daughters confirmed no one in their father’s family has abused them physically, mentally or psychologically;
·     [Ms C] has never had any surgeries and does not have any health issues;
·     As a [Profession 1], [Ms C] attends seminars, but is not in employment. [Ms C] is not looking for work in the field of [Profession 1] because she expects to be granted a visa for Australia;
·     [Ms C] has lots of friends and goes out with her friends regularly.
The notice stated that both the applicant’s daughters and her spouse confirmed that her youngest daughter, [Ms A], travelled with her to Australia because of her young age, and that there was no other reason other than [Ms A] is at an age where she needs her mother. It was also noted at the interview that neither of the applicant’s daughters was wearing a hijab.
On the basis of the information identified, the delegate considered that the applicant had provided incorrect answers in relation to her additional protection claims lodged with the RRT during the Tribunal hearing on 12 August 2013, in particular, the delegate considered the applicant does not fear her youngest daughter would be forced to undergo female circumcision because her two elder daughters have not been subjected to the same procedure, and had not been subjected to a restrictive conservative religious upbringing, nor physical and psychological abuse at the hands of her husband’s family.
The applicant’s response
In response to the NOICC, the applicant’s then representative provided a submission, dated 1 November 2016. The submission essentially denied the allegations as stated in the NOICC and contended that the Department had not provided sufficient particulars in the NOICC. It was also stated that the fact of the circumcisions of the applicant’s elder daughters was ‘tested’ by the RRT and a finding was made in relation to that. The submission did not purport to provide further explanations in relation to the information identified by the delegate in the NOICC.
ITOA
The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant and her daughter and, on 26 March 2018, and found that Australia does not have non-refoulement obligations to them. Relevantly, it was put to the applicant in the ITOA procedural fairness letter that information before the Department indicated the applicant and her husband have a good relationship and she continued to remain in frequent contact with him when he visited her in Australia. In response, the applicant’s migration agent submitted that, other than the fact that her husband often sided with his family, they have a good relationship. Her migration agent also contended that this information was not particularised to provide her with a proper opportunity for rebuttal.
The delegate’s decision
On 25 May 2018, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa on the basis that she had provided incorrect information in connection with her application for a protection visa. [Ms A’s] visa was subject to consequential cancellation under s.140 of the Act.
Application for review
The applicant applied to this Tribunal for a review of the delegate’s decision. She was represented in relation to the review by her registered migration agent, [name deleted].
A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.
Pre-hearing submissions
On 7 January 2019, the applicant’s representative submitted a statutory declaration, declared by [Ms C] on 7 December 2018. In her statutory declaration, [Ms C] stated that she wished to clarify the information provided by her and her sister, [Ms D], at their offshore interview in relation to her mother’s relationship with her in-laws. She stated that the information they had provided at the interview was designed ‘to avoid any conflict with our father and aunties.’ She stated that, since their early childhood, both her and her sister had been aware of ‘the constant conflict between my mother and her in-laws and that my mother was glad to travel to Australia to get away from them.’ They were not made aware by the delegate that their mother’s relationship with her in-laws was relevant to their visa application. Otherwise, they would have provided ‘details of the conflict.’
[Ms C] stated that she was told by her mother that she had undergone circumcision as a child when she was an adolescent and she believed her sister had never known the fact that she also had undergone the procedure. She had been depressed for a long time after finding out she had undergone circumcision. She did not consider female circumcision as a medical surgery or a medical procedure. It was a religious obligation and her responses to the questions at the interview in relation to whether she had undergone any medical surgery were correct. It is considered ‘haram’ for a girl to tell a stranger that she has undergone female circumcision. [Ms C] also stated that her father is not aware that she and her sister have had a medical examination to prove that they have been circumcised.
The applicant’s representative also submitted to the Tribunal a copy and translation of a medical report by [Dr E], dated [November] 2018, stating that a medical examination has been performed on [Ms D] and concluded that she has undergone an ‘old surgical operation’, which is ‘classified as circumcision.’
On 21 January 2019, the applicant’s representative provided the Tribunal with a letter from [Mr F], clinical psychologist at [a medical centre], dated [January] 2019. In his letter, [Mr F] stated that the applicant and her daughter were referred to his clinic by their general practitioner and that they have been patients at the clinic since 2017. He stated that the applicant initially arrived in Australia on a [temporary visa] to visit her son and his wife who live in Australia. However, her in-laws threatened to ‘murder’ her. She reported that they have attempted to murder her in the past and she perceived the threat as being ‘imminent’. She then decided to apply for a protection visa. The applicant and her daughter continue to reside with her son in Australia. Her husband and two of her daughters remain in Lebanon.
[Mr F] stated that the applicant had attended the clinic presenting with a number of symptoms, including low self-esteem, low mood, sleep disturbance, anxiousness, hypersensitivity and sleep disturbance. On the basis of these symptoms, [Mr F] diagnosed the applicant with post-traumatic stress disorder (PTSD). He stated that ‘the cancellation of her protection visa has exacerbated her symptoms.’ [Mr F] also diagnosed [Ms A] as having ‘major depressive disorder with panic attacks’ and stated that both the applicant and her daughter’s psychological health ‘is being impaired and exacerbated by the feat [sic] of what the future might hold for them.’ In addition, the applicant ‘has become overwhelmed by the fear of returning to Lebanon where a ‘death sentence’ awaits her, yet she is also burdened with her daughter’s mental illness’.
The hearing
The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments (the Tribunal hearing). The Tribunal also received oral evidence from [Ms C] by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
At the hearing, the applicant told the Tribunal that she came to Australia in June 2012 on a [temporary visa]. The purpose of her travel was to attend her son’s engagement party. She was also escaping the war and the difficult situation she had in Lebanon. She had told everyone, including her in-laws that she was travelling to Australia. Her husband travelled with her to attend her son’s engagement, but he returned to Lebanon. He wanted her to go back, but he did not make threats against her.
Her husband and her son bought a house in Australia about three years ago. She now lives in this house with her son and other family members. In Lebanon she resided in a two story building in [City 1]. The first floor of the building was occupied by her in-laws and the second floor was occupied by her, her husband and her children. Her mother-in-law passed away a long time ago and her father-in-law passed away about three or four years ago. Following his death, her father-in-law’s second wife resides elsewhere on her own and the first floor of the building is now unoccupied. She is in contact with her sisters-in-law on special occasions and the last time they spoke to each other was three years ago.

Her daughters [Ms C] and [Ms D] were circumcised in Lebanon. She did not agree with the procedure but her husband’s father and sisters were more powerful than her. They assaulted her and shut her up. They were very strict. However, they did not dare harm her daughters because they were afraid of her husband. Her husband protected the children. When her children grew up, they could protect themselves. They mistreated her when her husband was away and her children were at school. When she informed her husband, he became very upset and he even cried. He tried many times to talk to his family but it did not work. In relation to female genital circumcision, her husband was helpless and could not have an opinion. Her father-in-law had a strict religious mentality and threatened to shoot her husband if he disobeyed him. Her husband could not stop the procedure because it was something in their religion and tradition.
She could not move away from her in-laws because her father-in-law would not allow it and would have threatened to kill her husband. When she came to Australia, her husband was in a good financial situation, but her children were getting married and she wanted to support her children.
In her evidence to the Tribunal, [Ms C] stated that the applicant had problems with her-in-laws and that her in-laws beat her when her husband was away. They then denied their actions when [Mr B] returned. [Mr B] spoke to his family and yelled at them. [Mr B’s] family did not direct any form of violence or harm towards the children.
Information provided following the hearing
On 1 February 2019, the Tribunal wrote to the applicant under s.424A of the Act and invited her to comment on or respond to certain information.
The letter also invited the applicant to provide comments in relation to an non-disclosure certificate in the Department’s file relating to the cancellation of the applicant’s protection visa. The certificate, which was issued under s.438(1)(b) of the Act, applied to information contained in certain folios for the reason that the information was given to the Department in confidence. The certificate stated that that the documents or their contents should not be disclosed because they contained information which would reveal confidential departmental investigative methods and enable a person to ascertain the identity of a confidential source.
In essence, the folios covered by the certificate consisted of email correspondence between officers of the Department referring to the observations made at an interview in connection with the applicant’s husband’s partner visa application to the effect that her daughters did not wear the hijab during the interview. Other folios covered by the certificate contained the notes taken at an interview conducted with the applicant’s son, [Mr G], in relation to his partner visa application. The letter put to the applicant that the Tribunal has formed the preliminary view that this certificate is valid as the stated reason provides sufficient basis for public interest immunity. It was also put to her that the gist of the information regarding the applicant’s daughters’ interview was contained in the Department’s Notice of Intention to Consider Cancellation of the applicant’s visa, as well as the delegate’s cancellation decision. The gist of the relevant information contained in the applicant’s son’s interview notes was discussed with the applicant at the hearing and were put to her in the Tribunal's s.424A letter for her response or comment.
On 8 February 2019, in response to the Tribunal's invitation, the applicant’s representative submitted statutory declarations declared by the applicant, her son, [Mr G], and her daughter-in-law, [Ms H]. All three statutory declarations were dated 7 February 2019. No comments were received in relation to the non-disclosure certificate.
In her statutory declaration, the applicant stated the following:
1.     I make this statement with reference to my application for a review of a decision to cancel my protection visa.
2.     I wish to address the information that was provided in the Tribunals invitation to comment.
3.     I wish to state that I have never provided any false or misleading information to the Department of Immigration.
4.     I once again reiterate that my claims relating to my daughters are true. Furthermore, I state that daughters have gone to extreme lengths to provide supporting medical evidence.
5.     I come from an extremely conservative Sunni Muslim background. I have in the past not enjoyed a good relationship with my in-laws, and my husbands' close relatives. My in-laws used to physically and mentally abuse me, and I escaped this abuse hoping never to return to this situation.
6.     Although I fear for my own personal wellbeing the wellbeing of my children, particularly my daughter remains my primary concern. I do not want my youngest daughter [Ms A] to go through what her sisters and I went through.
7.     Although my father and mother in-law have both passed away, I still fear hmm at the hand of my husband's sisters, their husbands and other close relatives who detest me much in the same manner as his parents.
8.     The fact that I have been away from my husband for many years now, had invited further ridicule, false accusations and calls for revenge. My in-laws and other close relatives of my husband view me as a dishonourable straying woman, merely because I am living in a different country to my husband. They do not understand nor appreciate the visa processing system and my fight to restore my protection visa. They merely view me as a woman who wants to be away from her husband and that if I were loyal to him, I would not hesitate to return to Lebanon. They also accuse me of not wanting my husband tojoin me in Australia because of other ulterior motives.
9.     I want the Tribunal to consider the totality of my claims, including the further claims that I will be personally subjected to serious harm at the hand of my husband's close relatives as I am accused of being disloyal to him.
10. The Tribunal has correctly put to me that my husband's parents have both passed away. However, my adversaries in Lebanon remain numerous, particularly my husband's sisters, their husbands, my brother in-law (who regularly visits Lebanon) and other close relatives of my husband who feel ashamed by my actions of perceived disloyalty to him and the family.
11. Relocating to another part of Lebanon would not be practical nor viable for me. I do not personally have the financial capacity nor means to do so. My husband would not agree to relocate because he has an established house in [City 1]. Furthermore, in Lebanon he would be influenced to a significant degree by his close relatives not to relocate.
12. The Tribunal should also understand with respect to my daughters' responses relating to their fathers' relatives. Naturally, my daughters would not seek to dishonor or embarrass their father by stating the truth about his family in front of strangers.
13. Likewise my husband and son [Mr G] would also understandably refrain from making any bad comments about their family and close relatives. The intention to avoid embarrassment does not mean that I have been lying about my past mistreatment and the threats that I continue to face should I return to Lebanon.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the s.107 notice?
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:
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.[3]
[2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[4] In that case, Flick and Perry JJ said that:
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.[5]
[4] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].
[5] At [120].
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.
For the reasons outline below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.
The purpose and manner of the applicant’s travel to Australia in June 2012
In her statutory declaration of 9 August 2013, the applicant stated that she brought her youngest daughter to Australia to escape the likelihood of female circumcision.
In her oral evidence to the RRT, she stated that ‘they’ had circumcised her daughters and she had to escape so that her youngest daughter would not be subjected to the same procedure. She also told the RRT that she came to Australia secretly by leaving at night. She made all the arrangements in secret. Her sisters in Lebanon helped her to obtain a passport and a visa to Australia. When her in-laws found out she was in Australia, they went ‘crazy’ and made threats that they wanted to kill her and that they would not let her see her kids.
In his offshore interview of 15 January 2015 in connection with his partner visa application, [Mr B] told the Department that he had told the applicant to travel to Australia due to the problems she was having with his parents. In his subsequent interview on 8 October 2015, he told the Department that, in 2012, he travelled to Australia with the applicant on a [temporary visa, but the applicant decided to stay. He said the applicant did not have the intention to stay in Australia permanently, but their son insisted that she remain in Australia. A few months prior to that trip, [Mr B] had purchased a house in Australia.
At the Tribunal hearing held in January 2019, the applicant stated that the purpose of her travel to Australia was to attend her son’s engagement party. She added that she was also escaping the war and the difficult situation she had in Lebanon. When asked to clarify what she meant by the difficult situation, she said when she came here it was because there was war in Lebanon and bullets hit her house. She was terrified. She was also concerned about the welfare of her daughter. She stated that she had told everyone, including her in-laws, that she was travelling to Australia. Her husband travelled with her to attend her son’s engagement, but he returned to Lebanon. When asked why she had told the RRT that she had travelled to Australia secretly at night, she said she had told her in-laws that she would attend her son’s engagement.
The information provided by the applicant to the RRT and the information provided by her husband at his interviews in 2015, the information provided by [Mr G] at his interview and the relevant segments of [Mr F’s] letter were put to the applicant for her comments or response in a s.424A letter. The applicant’s statutory declaration of 7 February 2019, which was provided in response to the Tribunal's letter, did not address this issue and offered no explanation as to why the applicant had told the RRT that she had escaped Lebanon secretly at night; that all the arrangements were made in secret with the assistance of her sisters and that her in-laws had reacted with anger when they found out she was in Australia.
The applicant’s relationship with her husband and in-laws
In her statutory declaration of 9 August 2013, the applicant stated that she comes from an extremely conservative background. Her marriage was arranged and her relationship with her husband was ‘dominated’ by his father and sisters and she suffered physical, sexual and mental abuse. When she was mistreated by her husband’s sisters, he was always on their side.
At the RRT hearing, she stated that, when she was in Lebanon, her in-laws kept her at home and did not want her to leave the house. She does not communicate with her husband’s family by telephone, but they have conveyed threats against her through her children. After she came to Australia, her in-laws went ‘crazy’ when they found out she had come to Australia. They made threats that they wanted to kill her and that they would not let her see her kids. Her husband had arrived in Australia two and half weeks before the hearing. He had come to Australia for business, but also to take her back with him. He had also made threats against her. Later in the course of the hearing, she stated that her husband is good to her, but he does not take sides with her. It is out of his control and he has also been threatened.
At his 8 October 2015 interview, [Mr B] told the Department that his family did not threaten or abuse the applicant physically or mentally. The issues were not that serious and the reasons behind the conflict were ‘shallow’. He stated that his sisters are in contact with the applicant and that they talked to each other occasionally. The applicant’s daughters, [Ms C] and [Ms D], also told the Department that the applicant is in contact with her sisters-in-law and that they call each other.
On 11 May 2017, the applicant’s son, [Mr G], attended an interview with the Department in connection with his application for a partner visa. At that interview, he stated that he had previously applied for a protection visa. The claims contained in his application for a protection visa were all false and manufactured by his then migration agent. His mother had problems with his father’s parents. They swore at her and she had a lot of stress. His grandfather swore at his mother and beat her. He also beat his siblings if they did something wrong. His mother’s relationship with his father is very good. Contrary to what was stated in his application for a protection visa, [Mr G] stated that he has no radical Muslim relatives and he was told by his migration agent to make up these claims.
In her statutory declaration of 7 December 2018, [Ms C] stated that both she and her sister were aware of ‘the constant conflict’ between their mother and her in-laws, but they were not made aware by the delegate that their mother’s relationship with her in-laws was relevant to their visa application. Otherwise, they would have provided ‘details of the conflict.’ [Ms C], however, did not provide any other information in relation to the conflict and its nature.
In a letter, dated 8 January 2019, [Mr F], clinical psychologist, relayed an account of the applicant’s experiences as relayed to him by her. In his letter, [Mr F] stated that the applicant initially arrived in Australia on [temporary visa] to visit her son and his wife, but her in-laws ‘threatened to murder’ her. They have ‘attempted to murder’ her in the past and she perceived the threat to be imminent.
At the Tribunal hearing of 23 January 2019, the applicant told the Tribunal that she is in contact with her sisters-in-law on special occasions, but the last time they spoke to each other was three years ago. She said her husband’s father and sisters were more powerful than she was. They assaulted her and ‘shut [her] up’. They were very strict. However, they did not dare harm her daughters because they were afraid of her husband. They mistreated her when her husband was away and her children were at school. When she informed her husband, he became very upset and he even cried. He tried many times to talk to his family but it did not work. When asked why she had told the RRT that her husband had threatened her, the applicant stated that her husband wanted to take her back to Lebanon, but did not make threats. It was her father-in-law who was asking her husband why he was not bringing his wife and daughter back to Lebanon. When it was put to her that it appeared that the purpose of her travel to Australia was to attend her son’s engagement, she said when she came here she stayed with her son and she felt embarrassed to talk about her case and she only disclosed her claims to her then migration agent at a later date. No other satisfactory explanation was offered.
At the same hearing, [Ms C] told the Tribunal that the applicant had problems with her-in-laws and that her in-laws beat her when [Mr B] was away. They then denied their actions when [Mr B] returned. [Mr B] spoke to his family about this situation and ‘yelled’ at them.
The information provided by the applicant to the RRT, the information provided by her husband and daughters at their interviews in 2015, the information provided by [Mr G] at his interview and the relevant segments of [Mr F’s] letter were put to the applicant for her comments or response in a s.424A letter. In her statutory declaration of 7 February 2019, the applicant did not provide a direct explanation for the inconsistencies in the evidence throughout the process. She reiterated that she has not provided false information to the Department and stated that she did not enjoy a good relationship with her in-laws. Her in-laws used to physically and mentally abuse her and she escaped this abuse. The applicant also stated that, in their evidence to the Department, her daughters did not want to ‘dishonour or embarrass their father by stating the truth about his family in front of strangers.’ Similarly, her husband and her son would have refrained from making ‘any bad comments about their family and close relatives.’ The intention to avoid embarrassment does not mean that she had been untruthful. The Tribunal does not find these explanations to satisfactorily and persuasively address the information provided by the applicant to the RRT, which was subsequently contradicted.

In reaching this view, the Tribunal has considered the evidence provided by [Mr G] and [Ms C] that their mother was beaten by her in-laws. In his statutory declaration of 7 February 2019, [Mr G] acknowledged that during the course of his partner visa interview on 11 May 2017, he had conceded that claims made in a protection visa application he had lodged in Australia were fabricated by his migration agent. [Mr G] also stated that, during the course of the same interview, he had provided information to the Department in relation to his family, which was not truthful. He stated that at his interview, he had told the Department that he ‘had no radical Muslim relatives.’ He went on to state ‘I had made these statements because at the time of the interview, I did not want the Department to view me as a radical Muslim or someone who comes from a radical Muslim background.’ The contents of [Mr G’s] statutory declaration suggests that he is prepared to tailor and manipulate information to convey favourable impressions for immigration purposes. The Tribunal, therefore, does not purport to place any weight on his assertions or any evidence attributed to him.
The Tribunal also found [Ms C’s] evolving evidence in relation to her mother’s treatment at the hands of her in-laws to be unreliable. As already noted, [Ms C] had initially claimed the applicant has no issues with her in-laws. In her statutory declaration of 7 December 2018, whilst she sought to clarify her previous evidence, she made no mention of any physical violence perpetrated on the applicant by her in-laws. It was only at the Tribunal hearing, of 23 January 2019, that she mentioned for the first time that her in-laws beat her mother when [Mr B] was away. The Tribunal does not consider this claim to be reliable and does not attach weight to [Ms C’s] assertions in this regard.
On the basis of the evidence before it, the Tribunal accepts that there was an ongoing level of tension and verbal arguments between the applicant and her in-laws when she resided in Lebanon. The Tribunal is also prepared to accept the applicant had found the situation less than ideal, unsatisfactory and stressful. The Tribunal, however, does not accept that the applicant was physically, mentally and/or sexually abused by her in-laws, regardless of whether her husband was present or absent.
The applicant’s daughters’ relationship with their in-laws
In her statutory declaration of 9 August 2013, the applicant stated that she suffered physical, sexual and mental abuse and that her daughters were also subjected to similar mistreatment at the hands of her in-laws.
In her oral evidence to the RRT, she stated that her in-laws tried to ‘torture’ her daughters. They didn’t let them go to school, they didn’t let them go out of the house and they tried to force her daughters to wear the Islamic scarf.
In his offshore interview of 15 January 2015, [Mr B] told the Department that [Ms C] is studying [Discipline 1] at [University 1] and she also studied [Discipline 2] and has a degree in [Discipline 2]. [Ms D] also attends school and was permitted to go and buy her school books herself. He supports [Ms C] and allows her to drive the family car.
In their interview on 8 October 2015, the applicant’s daughters, [Ms C] and [Ms D], essentially told the Department that they have no problems with their father’s family and they visit their aunts. They have never been abused by any member of their father’s family. They both stated they get along well with their paternal aunts.
In her statutory declaration of 7 December 2018, [Ms C] made no mention of ever being harmed by members of her father’s family.
At the Tribunal hearing of 23 January 2019, [Ms C] told the Tribunal that her father’s family did not direct any form of violence or harm towards the children. At the same hearing, the applicant told the Tribunal that her husband protected her children and when her children were older they could protect themselves. When asked why she had told the RRT that her husband’s family had mistreated her daughters, she said her in-laws had interfered in their lives. If her daughters wanted to go to university, they would ask why and they would tell them to wear the hijab, but they did not want to harm them.
The information provided by the applicant to the RRT, the information provided by her husband and daughters at their interviews in 2015 and the information provided by [Ms C] at the hearing was put to the applicant in the Tribunal's s.424A letter. In her statutory declaration of 7 February 2019, the applicant did not directly address the inconsistencies arising from this information. Nor did she provide an explanation as to why she had claimed before the RRT that her daughters were subjected to abuse, that they were prevented from going to school or that her in-laws had tried to force them to wear the Islamic scarf. In her statutory declaration of 7 February 2019, the applicant stated that the Tribunal should understand that her daughters would not seek to dishonour or embarrass their father by stating the truth about his family in front of strangers. To the extent that this may suggest that the applicant’s daughter had not disclosed any abuse or mistreatment in order not to embarrass their father, the Tribunal does not accept this assertion. The Tribunal found [Ms C] to be open and articulate and her evidence clearly suggested that neither she nor her siblings had experienced any harm or mistreatment at the hands of her father’s relatives.
As the Tribunal had the opportunity to directly question and hear from [Ms C], it prefers her evidence to the evidence given by [Mr G], at his partner visa interview, that his grandfather also beat his siblings if they did something wrong. The Tribunal does not accept [Mr G’s] assertion to be reliable. In reaching this view, the Tribunal has taken into account [Mr G’s] statutory declaration of 7 February 2019, in which he acknowledged that during the course of his partner visa interview on 11 May 2017, he had conceded that claims made in a protection visa application he had lodged in Australia were fabricated by his migration agent. [Mr G] also stated that, during the course of the same interview, he had provided information to the Department in relation to his family, which was not truthful. He stated that at his interview, he had told the Department that he ‘had no radical Muslim relatives.’ He went on to state ‘I had made these statements because at the time of the interview, I did not want the Department to view me as a radical Muslim or someone who comes from a radical Muslim background.’ The contents of [Mr G’s] statutory declaration suggests that he is prepared to tailor and manipulate information to convey favourable impressions for immigration purposes. The Tribunal, therefore, does not purport to place any weight on his assertions or any evidence attributed to him.
The Tribunal has also considered the contents of [Ms H’s] statutory declaration of 7 February 2019, in which she stated that she had travelled to Lebanon in November 2017 and lived with her husband in [City 1] for 10 weeks. During this period, she spent ‘a lot of time’ with her father in-law, his family and other close relatives. She stated that apart from her father-in law, his family and close relatives are strict Muslims ‘and their attitude towards women in particular, is appalling.’ Her freedom as a woman was restricted and they ‘dictated’ what she should wear, to whom she should talk, where she should go and with whom. She was even restricted in making personal telephone calls to Australia. [Ms H’s] evidence, however, does not appear to be consistent with evidence in relation to the lifestyle pursued by the applicant’s daughters. As already noted, [Ms C], for example, is highly educated. Evidence given by her and by her father to the Department indicates that she freely attended university in the past, obtaining her desired qualifications. She is free to drive and spend time with her friends regularly. [Ms C] told the Tribunal at the hearing that she and her sister spend periods of time alone at home when their father is travelling. As also already noted, [Ms C] told the Tribunal at the hearing that she has never been mistreated by her father’s family. The Tribunal, therefore, does not accept the contents of [Ms H’s] statutory declaration to support the view that the applicant’s daughters were subjected to ongoing harm or mistreatment by members of their father’s family.
The Tribunal does not accept that the applicant’s daughters were subjected to any form of mistreatment at the hands of their in-laws.
The applicant’s husband’s attitude or stance towards female genital mutilation
In her statutory declaration of 9 August 2013, the applicant claimed that her husband and his family are now determined to carry out this procedure (circumcision) on her youngest daughter before she gets married. The delay in her circumcision has caused enormous grievance between the applicant and her husband.
In her oral evidence to the RRT, she stated that her husband thinks her daughters should undergo circumcision because it is a religious obligation. However, her husband would not dare do anything to her youngest daughter here in Australia.
At the Tribunal hearing of 23 January 2019, the applicant told the Tribunal that her father-in-law had a strict religious mentality and threatened to shoot her husband if he disobeyed him. However, she also told the Tribunal that her in-laws would not dare mistreat her children because her husband protected them. When asked as to why her husband could not protect her youngest daughter against circumcision if he disapproved of his family’s behaviour, she said at that time his family did not know that she had come to stay in Australia. When pressed, she said it was something in the religion and tradition and they had to do it no matter what. Her father-in-law wanted to do the procedure, but she kept delaying because her daughter had some infections. By the time she was well, she had obtained her visa and she left at night without informing anyone or that she was taking her daughter. When she was reminded that she had stated earlier that she had informed everyone that she was travelling to Australia, she changed her evidence by stating that she did not tell them why she was taking her daughter to Australia.
The information provided by the applicant to the RRT was put to her in the Tribunal's s.424A letter. In her statutory declaration of 7 February 2019, the applicant did not address the inconsistencies arising from this information and did not provide an explanation as why she had made assertions to the RRT, which were subsequently contradicted.
For all the above reasons, the Tribunal finds that the applicant has provided incorrect information in her statutory declaration of 9 August 2013 provided to the RRT and in her oral evidence to the RRT at the hearing held on 12 August 2013. The Tribunal is satisfied that the applicant had provided incorrect information to the RRT that she had escaped Lebanon secretly at night; that all the arrangements were made in secret with the assistance of her sisters and that her in-laws had reacted with anger when they found out she was in Australia. The Tribunal is satisfied that the applicant had provided incorrect information to the RRT that her husband was complicit in the mistreatment she claimed to have suffered at the hands of his sisters by taking their side. The Tribunal is satisfied that the applicant had provided incorrect information to the RRT that her husband was making threats against her or she had no communication with her in-laws after she arrived in Australia in June 2012. The Tribunal is satisfied that the applicant had provided incorrect information to the RRT that her daughters were subjected to mistreatment or abuse by her in-laws, that they were prevented from attending school and that there were attempts to force them to wear the Islamic scarf. The Tribunal is satisfied that the applicant had provided incorrect information to the RRT that her husband was determined that her youngest daughter should undergo a circumcision procedure and that her presence in Australia had prevented him from taking any form of action.
Having carefully considered the evidence before it, the Tribunal did not find the applicant to be a credible and truthful witness. The Tribunal is of the view that the applicant has misrepresented and falsified the nature of her relationship with her husband’s family. The Tribunal does not accept that the applicant was sexually, physically and mentally abused by her in-laws. The Tribunal does not accept that she was beaten by her husband’s sisters or father, in his presence or absence. The Tribunal does not accept that her husband was complicit in any claimed act of mistreatment or abuse or that he was powerless to prevent any such claimed act. The Tribunal does not accept that the applicant’s in-laws had tried to ‘murder’ her. The Tribunal does not accept that her in-laws kept her at home and did not allow her to leave the house. The Tribunal does not accept that her in-laws had prevented her daughters from leaving the house or going to school. The Tribunal does not accept that they had tried to force the applicant’s daughters to wear the Islamic scarf. The Tribunal does not accept that she had escaped Lebanon secretly or that her departure and decision to remain in Australia had made her in-laws angry. The Tribunal does not accept that she has no communication or relationship with her sisters-in-law. In reaching these conclusions, the Tribunal has considered but does not accept the explanations that, at various stages, her husband, her son and her daughter, [Ms C], had felt embarrassed or wished to avoid family conflict in disclosing information in relation to the conflict between the applicant and her in-laws. The Tribunal does not accept that the applicant’s father-in-law had ever threatened to shoot [Mr B] if he disobeyed him. The Tribunal finds that [Mr B] was a strong figure who was able to protect his children and take the applicant’s side in the event of conflict with his parents or siblings.
The Tribunal has found that aspects of the information provided by the applicant to the RRT, both in writing and orally, were incorrect. The Tribunal is satisfied that the applicant provided incorrect information to the ‘Tribunal’ (RRT) in relation to her application for a Protection visa. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.
The correct information
The Tribunal considers that the correct information is as follows: the applicant had not escaped Lebanon secretly at night. The arrangements for her travel were not made in secret with the assistance of her sisters. All members of her family were aware that she was travelling to Australia to attend her son’s engagement and that her in-laws had not reacted with anger when they found out she was in Australia. The applicant’s husband was not complicit in any mistreatment she claims to have suffered at the hands of his sisters. The applicant’s husband did not make threats against her. The applicant was in contact with her in-laws after she arrived in Australia in June 2012. The applicant’s daughters were not subjected to mistreatment or abuse by her in-laws in the manner referred to by the applicant in her evidence to the RRT. The applicant’s daughters were not prevented from attending school and there were no attempts to force them to wear the Islamic scarf. The applicant’s husband did not want [Ms A] to undergo a circumcision procedure. The Tribunal gives this factor significant weight towards the visa being cancelled.
The content of the genuine document (if any)
The s.107 notice did not refer to any bogus documents and the Tribunal has not identified any.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal is of the view that the information provided by the applicant to the RRT was central to the grant of the protection visa. The Tribunal gives this factor significant weight towards the visa being cancelled.
The circumstances in which the non-compliance occurred
The applicant has persistently maintained that she did not give incorrect information to the Department or the RRT, so she has not provided any mitigating circumstances to explain why she has done so. The Tribunal gives this factor significant weight towards the visa being cancelled.
The present circumstances of the visa holder
The Tribunal has considered [Mr F’s] report that the applicant has been diagnosed with PTSD and [Ms A] has been diagnosed as having ‘major depressive disorder with panic attacks’. The Tribunal has also considered [Mr F’s] assessment that both the applicant and her daughter’s psychological health ‘is being impaired and exacerbated by the feat of what the future might hold for them’ and that the applicant ‘struggles to discipline and control her daughter’s behaviour’. At the Tribunal hearing of 23 January 2019, the applicant told the Tribunal that she is in a difficult mental state because she has not seen her other daughters for seven years and she has been away from her husband. The Tribunal is prepared to give these matters some weight in favour of the visa not being cancelled.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As noted above, the applicant has maintained that she did not give incorrect information to the RRT in relation to her application for a protection visa.
Any other instances of non-compliance by the visa holder known to the Minister
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 Tribunal gives this little weight towards the visa not being cancelled.
The time that has elapsed since the non-compliance
The relevant non-compliance in the present case took place when the applicant presented written and oral evidence to the RRT in August 2013, so over six years have elapsed since then. The Tribunal gives this little weight towards the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community
No information was provided to the Tribunal to specifically address this factor.
Other considerations

100. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[6] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:
[6] PAM 3 – Migration Act - Visa cancellation instructions > General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[7] for example whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment
[7] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16) and PAM3: Act – Compliance and case resolution – Guiding principles – Treatment of children (issue date 1/1/12).
101. In her evidence to the RRT, the applicant had claimed that she is at risk of being harmed by her husband’s family. She had claimed that her father-in-law and sisters-in-laws had mistreated her in the past and that they will harm her if she were to return to Lebanon. For the reasons outlined earlier, the Tribunal considers that the applicant had provided incorrect information to the RRT.
102. The Tribunal has already found the applicant not to be a credible witness. The Tribunal found the applicant to have misrepresented and falsified the nature of her relationship with her husband’s family. The Tribunal has rejected the applicant’s claims that she was sexually, physically and mentally abused by her in-laws. The Tribunal has rejected the applicant’s claims that she was beaten by her husband’s sisters or father or that her in-laws had tried to ‘murder’ her. The Tribunal has rejected her claims that her husband was complicit in any claimed act of mistreatment or abuse or that he was powerless to prevent any such claimed act. The Tribunal has rejected her claims that her in-laws kept her at home and did not allow her to leave the house. The Tribunal has also rejected her claims that her in-laws had mistreated and/or oppressed her daughters and that she did not have a relationship with her sisters-in-law after she came to Australia. Whilst the Tribunal has accepted that there was an ongoing level of tension and verbal arguments between the applicant and her in-laws when she resided in Lebanon, the Tribunal does not accept that this amounts to serious or significant harm.
103. At the Tribunal hearing of 23 January 2019, the applicant told the Tribunal that her father-in-law passed away about three or four years ago. Her mother-in-law had passed away a long time ago. Her father-in-law’s second wife did not have any children and moved out of the family home after her husband passed away. The applicant did not claim that her father-in-law’s second wife had played any role in harming her or her children.
104. In her statutory declaration of 7 February 2019, the applicant claimed ‘although my father and mother in-law have both passed away, I still fear harm at the hand of my husband's sisters, their husbands, her brother in-law (who regularly visits Lebanon) and other close relatives who detest me much in the same manner as his parents.’
105. The claim that the applicant feared her sisters-in-laws’ husbands and ‘other close relatives’ were essentially new and she did not expressly refer to these fears at the Tribunal hearing of 23 January 2019. The applicant also claimed for the first time that being away from her husband for many years has ‘invited further ridicule, false accusations and calls for revenge.’ She is viewed as ‘a dishonourable straying woman’ because she is residing in a different country to her husband. They do not understand the visa processing system and her ‘fight to restore [her] protection visa.’ They also accuse her of not wanting her husband to join her in Australia ‘because of other ulterior motives.’ The applicant did not provide any further information or details in relation these claims. No information was provided as to when exactly her husband’s relatives started to make these specific accusations based on her length of absence from Lebanon, how she has come to know about these accusations and calls for ‘revenge’ and what is her husband’s attitude towards these accusations and any presumed consequences in view of the applicant’s evidence to the Tribunal in relation to her husband’s love and support for her. In view of the Tribunal's findings in relation to the applicant’s credibility, the Tribunal does not consider these claims to be reliable and has serious doubts as their veracity. The Tribunal does not accept the applicant’s claims as stated in her statutory declaration of 7 February 2019.
106. In his statutory declaration of 7 February 2019, [Mr G] essentially reiterated his mother’s claims, stating that if the applicant were to return to Lebanon, she would again be mistreated by her close relatives including her sisters-in-law and their husbands who are ‘extremely strict Muslims’ and detest her. He stated the fact that his mother has been living away from her husband for many years and has refused to return to Lebanon has angered them and they have accused her of running away from her husband and bringing shame upon the family. The applicant’s life in Lebanon is ‘in extreme danger, made worse by the fact that she has been away from [her husband] for so long.’ The Tribunal has rejected the claims that the applicant was mistreated or seriously harmed by her husband’s family in the past. As noted in relation to the applicant’s evidence, no other information or details were provided in relation to the claimed hostility towards the applicant due to her long absence from Lebanon from her sisters-in-law and their husbands. Furthermore, the Tribunal does not consider [Mr G’s] evidence to be reliable.
107. As noted above, in his statutory declaration of 7 February 2019, [Mr G] had acknowledged that during the course of his partner visa interview on 11 May 2017 he had conceded that claims made in a protection visa application, including claims that he had radical Muslim relatives, were concocted. He also conceded that, during the course of the same interview, he had provided untrue information to the Department, including that he ‘had no radical Muslim relatives.’ He stated in his statutory declaration ‘I had made these statements because at the time of the interview, I did not want the Department to view me as a radical Muslim or someone who comes from a radical Muslim background.’ The shifts and changes in [Mr G’s] evidence raise serious concerns in relation to their veracity and show his preparedness to tailor information to achieve favourable immigration outcomes. The Tribunal does not consider his evidence to be credible and does not place any weight on his assertions or any evidence attributed to him.
108. The Tribunal has also considered the contents of [Ms H’s] statutory declaration that during her stay in Lebanon, she ‘became acutely aware of the hatred towards my mother in-law, particularly by my husband aunties and other close relatives who accuse her of being a bad woman who has destroyed the family’ (sic). No further information was provided by [Ms H] as to how she had become ‘acutely’ aware of the ‘hatred’ towards her mother-in-law. Nor was there any explanation as to why her observations were not put forward as evidence to the Tribunal previously. The contents of [Ms H’s] statutory declaration do not remedy the concerns the Tribunal has identified in relation to the applicant’s claim regarding her husband’s relatives.
109. The Tribunal, therefore, does not accept that the applicant faces a real chance or a real risk of serious or significant harm at the hands of her sisters-in-law, their husbands, her brother-in-law or other relatives of her husband in Lebanon. In reaching this view, the Tribunal has also had regard to the inconsistencies in the applicant’s evidence in relation to why she had not moved away from husband’s relatives if she was subjected to continued mistreatment over many years.
110. At her RRT hearing, the applicant had stated that she would be unable to relocate within Lebanon because she only has one house and her husband cannot afford to find another house as his finances are not so good. However, in his partner visa interview, the applicant had told the Department that he is a [Occupation 1], [undertaking specified work]. He also has a shop selling [goods] and had bought a house in Australia. At the Tribunal hearing of 23 January 2019, the applicant told the Tribunal that she could not move away from her in-laws because her father-in-law would not allow it and would have threatened to kill her husband. When she came to Australia, her husband was in a good financial situation, but her children were getting married and she wanted to support them. This was put to the applicant in the Tribunal's s.424A letter. In her statutory declaration of 7 February 2019, the applicant stated that she does not have ‘the financial capacity nor means’ to relocate. Her husband would not agree to relocate because he has an established house in [City 1]. Furthermore, in Lebanon he would be influenced to a significant degree by his close relatives not to relocate. The applicant did not provide an explanation for the shifts and changes in her evidence, which cast significant doubt on the credibility of her claims.
111. The Tribunal has considered the applicant’s claims relating to her fear of her youngest daughter being circumcised. In her statutory declaration of 7 December 2018, [Ms C] stated that she had been informed by her mother that she had been circumcised as a child and until her mother’s travel to Australia, her sister, [Ms D], had never known the fact that she also had undergone the procedure. The evidence provided suggested that both [Ms C] and [Ms D] had sought a medical examination late last year to prove that they had in fact undergone the procedure. Whilst the Tribunal reviewed a medical report by [Dr E], dated [November] 2018, stating that a medical examination had indicated that [Ms D] has undergone an ‘old surgical operation’, which is ‘classified as circumcision’, no medical report was provided in relation to [Ms C]. This issue was raised with [Ms C] at the hearing and the Tribunal was told that a certificate is available and will be provided to the Tribunal. The Tribunal, however, did not receive the document.
112. In any event, the Tribunal is prepared to accept that both [Ms C] and [Ms D] had undergone this procedure when they were children and had no recollection of it until they were informed when they were older. In view of its findings above, including its findings in relation to the applicant’s credibility, the Tribunal does not accept that this procedure was forced upon the children by the applicant’s in-laws or that [Mr B] and the applicant had been helpless in preventing the procedure. The Tribunal, however, acknowledges that the prevailing traditions and social norms at that time might have influenced the decision to subject [Ms C] and [Ms D] to circumcision. Also, based on the applicant’s repeated assertions that she did not want her youngest daughter to experience the pain she had observed her eldest daughter endure, the Tribunal is prepared to accept that both the applicant and her husband are now opposed to the practice and they do not wish their youngest daughter, who is now [age] years old, to undergo the procedure. The Tribunal does not accept that the procedure will be forced upon [Ms A] by her father’s relatives if she were to return to Lebanon. The Tribunal does not accept that there is a real chance or a real risk that the applicant will face serious or significant harm, including psychological harm as a result.
113. In her protection visa application, the applicant had claimed that, as a Sunni woman, she feared being harmed by Allawites and supporters of the Syrian regime on the basis of her religion and ‘being imputed with an adverse political opinion.’ The applicant did not peruse these claims at the Tribunal hearing of 23 January 2019. When asked about other reasons as to why she could not return to Lebanon, she said there is war, conflict and other problems in Lebanon. Bombs and missiles strike houses. She has a lot of stress and because of stress she has a skin condition.
114. There is no persuasive information before the Tribunal to suggest that Sunni women, without more, face a real chance or a real risk of being harmed by Allawites and supporters of the Syrian regime on the basis of their gender, religion, political opinion or any combination of these factors. The Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for the reason of, or for reasons arising from, her gender, religion, imputed political opinion or membership of any particular social group, including Sunni women or any other particular social group apparent on the face of the evidence.
115. The Tribunal appreciates that the applicant had experienced apprehension and stress arising from tensions, instability, conflict and the sectarian violence in certain parts of Tripoli. According to the Australian Department of Foreign Affairs and Trade:
The conflict in Syria has increased tensions between communities in a number of areas. Historical tensions between Sunnis and Alawites in the adjoining Tripoli neighbourhoods of Jabal Mohsen (predominantly Alawite) and Bab-al-Tabbaneh (predominantly Sunni) escalated in the early stages of the Syria conflict, particularly around ‘Syria Street’ (the dividing line between the two communities), leading to regular rounds of communal violence that killed over 200 people. Lebanese authorities implemented a security plan in April 2015 that re-established a Lebanese Armed Forces presence in the area. DFAT understands that this has succeeded in significantly reducing the number of serious incidences of communal violence, although underlying tensions remain.[8]
[8] DFAT, DFAT Country Information Report – Lebanon, 19 March 2019.

116. The applicant resided in [City 1] and not in the neighbourhoods which were directly affected by violence. According to DFAT, this violence has now been significantly reduced. In any event, there is no persuasive information before the Tribunal to suggest that the tensions, including sectarian tensions, lack of general security and any instability the applicant may be concerned about is faced by her personally. The Tribunal does not accept that the general security situation in Lebanon would expose the applicant to a real chance of persecution.
117. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, sectarian violence, lack of general security and the instability the applicant may fear are faced by the population generally and not by her personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.
118. The Tribunal does not accept that there is a real chance that the applicant will be persecuted for one of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act nor that the risk to her in this context is a real risk faced by her personally rather than one faced by the population of the country generally and therefore excluded from the complementary protection criterion by virtue of paragraph 36(2B)(c) of the Migration Act.
119. For the reasons given above, the Tribunal does not accept on the evidence before it that there is a real chance that the applicant or her daughter will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act for one of the reasons mentioned in paragraph 5J(1)(a) of the Act or a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act for any reason if they return to Lebanon now or in the reasonably foreseeable future. The Tribunal finds that there are no obligations under relevant international agreements which will be breached if her visa is cancelled.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
120. The applicant’s daughter’s visa was consequentially cancelled. The Tribunal has considered the information in [Mr F’s] report that [Ms A] arrived in Australia with her mother at the age of [age] and has ‘grown up’ in Sydney. She has been unable to concentrate on her studies and has gained an excessive amount of weight. She has also ‘resorted to externalising problem behaviour due to the family stress.’ The Tribunal gives this consideration some weight in favour of the visa not being cancelled.
If there are children in Australia whose interests could be affected by the cancellation
121. As referred to above, the Tribunal has already found that [Ms A] does not face a risk of being forced to undergo circumcision in Lebanon. The Tribunal accepts that [Ms A] has resided in Australia for the past six years and has been attending high school here. The Tribunal appreciates that since the cancellation of her mother’s visa, she has been unable to focus on her studies and has gained weight. She has also been diagnosed major depressive disorder with panic attacks’. According to [Mr F], the applicant daughter’s psychological health ‘is being impaired and exacerbated by the feat [sic] of what the future might hold for [her].’ [Mr F] also noted that, according to the applicant, [Ms A] has been ‘acting out’ and her mother struggles to discipline and control her behaviour ‘as a result of the visa cancellation.’
122. The question in this context is what the best interests of the child require the decision-maker to decide with respect to the cancellation of the visa. The Tribunal considers that the child’s best interests would be to part of a stable family unit. [Ms A] has lived away from her father and other siblings for a number of years. The Tribunal considers it reasonable to assume that returning to Lebanon with her mother would provide her with the opportunity to be reunited with her father and benefit from the type family stability she has been deprived of over the past six years. There is no persuasive information before the Tribunal to suggest that it would be in her best interests to remain in Australia in the immediate future without the care and support that both parents would likely provide for her to address the challenges she is currently facing. Nor is there any persuasive information before the Tribunal to suggest that she would be unable to attend school in Lebanon or receive appropriate mental health care if she continued to be in need of such support.
123. Nevertheless, the Tribunal acknowledges that [Ms A] has spent six years of her life in Australia and has adjusted to life in here. The Tribunal, therefore, gives some weight in the applicant’s favour to this consideration.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
124. If the applicant’s visa is cancelled, she will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent her from making a valid application for any visa without the Minister personally intervening. However, the applicant is a citizen of Lebanon and it would appear that she can obtain a passport or other travel document and return to Lebanon and be admitted to the country. The Tribunal considers that the applicant will be able to return to Lebanon. The Tribunal does not accept, therefore, that indefinite detention is a likely consequence of the cancellation decision.

Conclusions
125. For the reasons set-out above, the Tribunal has found that the applicant provided incorrect information in connection with her application for a protection visa. The Tribunal accepts that the applicant’s daughter has resided in Australia since the age of [age] and has adjusted to life in Sydney. The Tribunal accepts that the applicant and her daughter have both been impacted psychologically by the cancellation of their visas. The Tribunal further accepts that the applicant has not breached the law since the relevant non-compliance. The Tribunal has given some weight to these considerations. However, the Tribunal consider that in the present case the strength of other considerations outweighs these matters. The Tribunal has found that the decision to grant the applicant a protection visa was based on the incorrect information which she provided. The Tribunal considers that there is an expectation that neither the applicant nor her daughter should benefit as a result of the incorrect information which she provided. Having given careful consideration to all of the relevant circumstances, the Tribunal has concluded that the applicant’s visa should be cancelled.
DECISION
126. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.
127. The Tribunal has no jurisdiction with respect to the other applicant.
Shahyar Roushan
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)    requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 5878

23 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice