2012784 (Migration)

[2021] AATA 3397

2012784 (Migration) [2021] AATA 3397 (7 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012784

MEMBER:Melissa McAdam

DATE:7 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 07 June 2021 at 10:30am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – Woman at Risk visa – risk of harm by honour killing from male members of family – relationship status – family composition – inconsistent information in subsequent partner visa – former migration agent’s misconduct – voluntary returns to country of persecution – compelling personal reason – vulnerable person – mental health and capacity – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by her registered migration agent.

3. The delegate cancelled the visa on the basis that the applicant had not complied with her obligations under s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice, NOICC

4. On 9 October 2019 the department delegate re-issued a Notice of Intention to consider Cancellation (‘NOICC’) of the applicant’s Subclass 155 visa, under s.107 of the Act. The NOICC contained the following:

   … On 19 March 2012, you sought to engage Australia’s international obligations by lodging an application for a Refugee and Humanitarian visa at the Australian Embassy Amman. As part of the application you provided a Form 842 – Application for an Offshore Humanitarian visa with answers, in part, as follows:

   Question 2 – Give details of the main applicant:

   Family name: “[Surname]”

   Given names: “[Given name]”

   Sex: “Female”

   Date of birth: “[Date 1]”

   Place of birth:

   Town/city: “Thi Gar”

   Country: “Iraq”

   Citizenship (if stateless write your previous country of citizenship): “Iraqi” Current country of residence: “Syria”

   Date you arrived in this country: “[date] 10 2010”

   Status in this country: “TR” [temporary resident]

   Relationship status: “Divorced”

   For your relationship status (other than ‘never married or been in a de facto relationship’), give the following details:

   Date this happened: “1992”

   Place this happened: “Thi Gar – Iraq”

   Do you currently have more than one partner (other than any partner included in this visa application): “No”

   If you have indicated you are ‘never married or been in a de facto relationship’ or ‘engaged or married’, are you currently in any other form of a relationship (eg. boyfriend/girlfriend): “No”

   Question 8 – Have you or any other person included in this visa application previously been legally married, in a de facto relationship or in a customary/traditional/religious marriage that is not legally recognised: “No”

   Question 11 – Do you have a husband, wife, de facto Partner or any dependants who normally live with you but who are not included in this application: “No”

   Question 24 – For ALL the people included in this application list the ethnic group to which they belong, their religion and any political party/group to which they belong:

   Main applicant: Ethnic Group: “Shiites”

   Religion (if any): “Muslim”

   Membership of political party/group (if any): “/”

   Question 25 – What is the name of the country you have a fear of returning to? “Iraq”

   Question 26 – When did you leave the country you fear returning to? “[date] 10 10”

   Question 27 – How did you leave the country you fear returning to? “legally”

   Give details of your exit permit: “Baghdad – [deleted] – [Damascus]”

   Question 29 – What do you believe may happen to you, or the people included in your application, if you were to return to that country? “I was threatened to be killed by my family because I was enforced to get married to an old man but I refused such marriage, therefore I was beaten and threatened by killing. I ran away to my [Relative 1] in Baghdad then to Syria (the UN Refugee Agency)”

   Question 30 – Who do you think may harm or mistreat you if you go back to that country? “My family will kill me because I refused to marry an old man”

   Question 31 – Do you think the authorities of that country can and will protect you if you return to that country? “No” Please explain why: “The authorities are unable to protect me against my family. I could be slaghtered (sic) by my family”

   As part of your application, you submitted a UNHCR Resettlement Registration Form. Under question 4 – Refugee Claim, it stated, in part:

   ·You divorced your husband, [Mr A] (born [year]) sometime in 1991 or 1992;

   ·You did not have any children from the marriage and after the divorce, you went to live with your family in the [named] area largely populated by Shiite people;

   ·The brother of your sister-in-law (your half-brother, [Brother B]’s wife) proposed to you in July 2010, however, he was married at the time and had children so you refused his proposal;

   ·Your half-brothers, [Brother B] and [Brother C] became angry at your refusal, they beat you and threatened to kill you, and forced you to stay in the house apart from allowing you to visit your neighbour;

   ·As part of a plan to escape sometime in October 2010, you left some clothes and your passport at your neighbour’s house and the next day you travelled from there to Baghdad to stay with your [Relative 1], [Ms D];

   ·After a week, your half-brothers called your [Relative 1] looking for you and stated they were coming to kill you. Your [Relative 1] sent you to a friend’s house in Baghdad to hide;

   ·[In] October 2010, fearing for your life, you travelled to Syria seeking safety;

   ·[In] May 2011, you secretly returned to Iraq for four days to visit your sick mother who was staying with your [Relative 1];

   ·[In] December 2011, you secretly returned to Iraq again for two weeks to visit your mother who also gave you money to take back with you to Syria;

   ·On 27 January 2012, you received a phone call from your [Relative 1] who told you that your half-brothers were coming to Syria to find you and kill you.

   The following further information was obtained from you during an interview with an officer of the Department of Home Affairs (‘the Department’) on 10 April 2012:

   ·You divorced your ex-husband because you were childless and you were forced by your brothers so that you would look after them;

   ·You were tortured by your brothers after you refused the proposal. You had become their slave, they stabbed you on your hands, burnt you, isolated you and deprived you of food;

   ·You eventually told your brothers you would agree to marry the man in order to stop the suffering and buy yourself some time so that you could organise your escape;

   ·You were given the documents to facilitate the marriage contract which you took with you when you escaped;

   ·You left Iraq [in] October 2010 because you fear persecution by honour killing for not following Islamic traditions, your name had become mud in your village and you were also afraid people on the streets would beat you;

   ·You believe and fear you will be massacred by your family if you return to Iraq, your brothers even went to Syria to look for you;

   ·You do not have any family members in Australia;

   ·You are currently not married or engaged.

   As part of the application process, you were asked to sign an undertaking which you did on 10 April 2012. It stated:

   “I, [the applicant] [DOB] state that I am not married nor engaged to be married and have no intention to marry at the present time. I agree to advise the Australian Embassy in Amman of any changes in my marital status including engagement that may occur prior to my entry to Australia” [Transcribed as written]

   You also submitted a copy of your Iraqi passport ... issued in Thi Qar [in] 2003 which was extended twice and valid [to] 2012, and which included all pages with entry and exit stamps from Iraq and Syria as well as numerous visas issued for your entry to Syria.

   On the basis of the information provided by you, including information you gave during the interview, your claims were assessed by a delegate of the Minister who determined that you had satisfied all the relevant criteria, including the criteria at Regulation 204.222 of the Migration Regulations 1994 (‘the Regulations’) which state:

   r204.222 If the applicant meets the requirements of paragraph 204.211(1)(a), the Minister is satisfied that the applicant does not have the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex.

   As a vulnerable single (divorced) Iraqi female without male protection who is perceived to have transgressed social mores and strict Islamic traditions and is subject to persecution in Iraq, the Refugee and Humanitarian - Woman at Risk (subclass 204) visa (‘Woman at Risk visa’) was granted to you on 23 July 2012.

   You entered Australia on this visa [in] August 2012.

   Subsequently, on 12 May 2016, the Department’s Australian Embassy in Amman received a Prospective Marriage (subclass 309) visa application from [Mr E] ([DOB], M). You were listed as his sponsor in the application.

   On 18 November 2016, in support of the application, you submitted your identity documents, inclusive, amongst other documents, of your Titre De Voyage travel document (number: [redacted]). You also submitted a Form 40SP – Sponsorship for a partner to migrate to Australia and on 28 November 2016, you submitted a personal statement of your relationship history with [Mr E]. In the information you provided, you included the following details about your relationship history:

   ·Your previous marriage to [Mr A] ended because of domestic violence;

   ·You met [Mr E] in Iraq [in] May 2009 when you travelled to Baghdad and entered the taxi he was driving. You instantly connected and he had confessed to you that he fell deeply in love with you and asked for your phone number. As you felt something towards him as well, you gave him your number;

   ·You immediately began talking on the phone for hours, two weeks later you met each other again and discussed your lives and future plans, you felt so loved and respected and realised you were of the same level and understanding;

   ·During your time together in Iraq, both your families were supportive of the relationship;

   ·In 2010 you travelled to Syria in order to come to Australia and although it was a difficult choice to leave him, you agreed to stay in contact and support each other;

   ·In August 2012, when you arrived in Australia, you and [Mr E] made a decision to become engaged;

   ·You returned to Iraq in October 2014 and had an engagement celebration [in] November 2014 in the presence of your mother, brother and [Mr E]’s family;

   ·You registered your marriage to [Mr E] in Iraq [in] September 2016, by way of power of attorney, on your behalf

   In support of his Partner visa application [Mr E] submitted copies of pages of his Iraqi passport … issued to him in Baghdad [in] 2010. This passport contains entry and exit stamps between Iraq and Syria as well as numerous visas for Syria and an Iranian visa for travel in 2014.

   It is noted that [Mr E] was issued a visa to Syria [in] October 2010 and departed Iraq for travel to Syria [in] October 2010. Entry and exit date stamps and visas in your and [Mr E]’s passports confirm that you were each issued a visa to Syria [in] October 2010 and you both travelled there [in] October 2010. Your passport also indicates that you returned to Iraq from Syria between [date] May 2011 and [date] May 2011 and between [date] January 2012 and [date] January 2012. Date stamps in [Mr E]’s passport indicates that he also travelled to Iraq on [date] January 2012 and back to Syria on [date] January 2012 and returned to Iraq on [date] August 2012 which is shortly after your departure from Syria, and travel to Australia. In his form 80 Personal particulars for assessment including character assessment, [Mr E] declared that he had travelled to Syria between [date] January 2012 and [date] August 2012 to ‘visit a friend.’

   However, given these circumstances, it appears that you and [Mr E] had travelled to Syria together and you both spent a majority of the time there together from [date] October 2010 until your departure from that country on [date] August 2012 after which [Mr E] returned to Iraq and does not appear to have further travelled.

   It is also noted that [Mr E] declared your family members in his application for a Partner visa application form Application for migration to Australia by a partner which has included three brothers and two sisters followed by two half-brothers and a half-sister.

   On this form your father is listed as [Mr F] born [year], however it is possible this date may not be correct. Your siblings are listed as:

   [Brother B] (brother) (married) date of birth: [date]

   [Brother G] (brother) (married) date of birth: [date]

   [Sister H] (sister) (married) date of birth: [date]

   [Sister I] (sister) (married) date of birth: [date]

   [Brother J] (brother) (never married) date of birth: [date]

   [Sister K] (step-sister) (married) date of birth: [date]

   [Brother L] (step-brother) (married) date of birth: [date]

   [Brother M] (step-brother) (married) date of birth: [date]

   In your Offshore Humanitarian visa application you listed only three siblings, [Brother B] born [year], [Brother G] born [year] and [Sister I] born [year], all of whom you declared were half-siblings and you listed your parents as [Ms N] (mother) born [year] and [Mr O] (father) born [year]. These siblings were listed with different dates of birth to those in [Mr E]’s Partner visa application where they were listed as ‘full siblings’ and it appears to indicate that you also have two older, and one younger brother. There has been no mention of children from your father’s second marriage whom you claimed had abused you nor has there been any mention of a deceased sister that you claimed was killed by your family as they all appeared to be alive and married at the time of the Partner visa application.

   In your response to the Notice issued to you on 12 September 2018 you indicated that your brother [Brother M] from your mother’s side was the Power of Attorney for your marriage contract. It is noted that the date of birth of your siblings are inconsistent with those in [Mr E]’s Partner visa application. These findings appear to suggest that there are no younger step-siblings from your father’s side, but possibly on your mother’s side, which contradicts your claims that your step-brothers from your father’s second marriage would harm you if you returned to Iraq. Departmental movement records show that since the grant of your Woman at Risk visa, you travelled from Australia to Iraq on two occasions, as indicated below:

   ·You departed Australia [in] October 2014 and returned [in] January 2015:

   [In] October 2014, you departed Australia from Sydney Kingsford Smith Airport, flight number: [redacted] to [Country 2]. Upon your departure you completed and signed an Outgoing Passenger Card. On that card you answered “Iraq” to the question ‘Country where you will spend most time abroad’ and “2 months and 5 days” to the question ‘Intended length of stay overseas’. The wet stamp in your Titre De Voyage travel document (number: [redacted]) also shows that you entered Iraq [in] October 2014. You returned when you entered Australia [in] January 2015 via Sydney Kingsford Smith Airport, flight number: [redacted] from [Country 2]. Your total number of days outside of Australia equated to 80 days (two months and 19 days).

   ·You departed Australia [in] January 2017 and returned [in] May 2017:

   [In] January 2017, you departed Australia from Sydney Kingsford Smith Airport, flight number: [redacted] to [Country 3]. Upon your departure you completed and signed an Outgoing Passenger Card. On that card you answered “Australia” to the question ‘Country where you will spend most time abroad’ and “85 days” to the question ‘Intended length of stay overseas’.

   You returned when you entered Australia [in] May 2017 via Sydney Kingsford Smith Airport, flight number: [redacted] from [Country 3]. Upon your return to Australia, you completed and signed an Incoming Passenger Card and answered “Iraq” to the question ‘Country where you spent most time abroad’.

   Your total number of days outside of Australia equated to 112 days (three months and 23 days).

   Given this information, it appears you provided incorrect information in your Woman at Risk visa application. It appears that you did not and do not hold the adverse profile as you have claimed in your application.

   You indicated in your application form on 19 March 2012 that you were not in any kind of relationship, including that of boyfriend/girlfriend. You also indicated when you signed the undertaking in April 2012, that you had no present intentions to marry. However, your relationship with [Mr E] had begun in May 2009 and you were developing a relationship together over three years until you decided to become engaged in August 2012, four months later. This appears to be supported by the fact that you both travelled together to Syria in 2010. You returned together to Iraq on at least one occasion and back to Syria, and you remained together in that country until you departed for Australia [in] August 2012 following which [Mr E] returned to Iraq [in] August 2012 and never further travelled.

   According to the date stamps it appears that you and [Mr E] were in Syria together for approximately 660 days which is nearly two years.

   You also stated in your relationship statement in support of the Partner visa application that when you travelled to Syria it was a difficult choice to leave [Mr E] alone in Iraq and that during your time in Syria you kept in contact and called each other every day. This appears to be incorrect because entry and exit stamps in each of your passports and multiple visas for Syria issued to you both between 2010 and 2012 indicate that you both spent the majority of time in Syria while you awaited the outcome of your Refugee and Humanitarian – Woman at Risk visa.

   I consider that you had developed a relationship over three years where it was publicly recognised and supported by both your families and led to a decision to become engaged in August 2012. As such it appears that in March 2012, you would have been in a clearly defined relationship with [Mr E], and in April 2012 (four months earlier), you would have been in a position of intending to marry [Mr E].

   Therefore, I consider that you deliberately misled the Department when you submitted in your application form in March 2012 that you were not in any kind of relationship (even that of boyfriend/ girlfriend), and when you signed the undertaking in April 2012, indicating you had no intentions to marry anyone. It appears that you have spent a considerable period of time, travelling with, and remaining with [Mr E] in Syria prior to the grant of your Refugee and Humanitarian visa and as such appears to indicate that you were in a relationship with him at this time.

   You were granted the Woman at Risk visa on the basis that you met all the relevant criteria as a vulnerable single (divorced) Iraqi female without male protection who is perceived to have transgressed social mores and strict Islamic traditions and is subject to persecution in Iraq. You have consistently maintained that you are at a risk of harm by honour killing from male members of your family, namely your half-brothers, and that you would be beaten by people on the streets if you returned to Iraq because your name had become mud in your area of predominately Shiite Muslims.

   However, since the grant of the visa, you have voluntarily returned to Iraq on two separate occasions without apparent issue or impediment for fears from your family. On those occasions you stayed for more than six months which I consider to be a significant amount of time for someone who fears harm and even death from extended members of your family. I do not consider this to be the behaviour of someone who genuinely fears for their life, particularly when the fear is from male members of their own family, yet members of your family were present at your engagement. In addition you spent about 660 days, which is a considerable period of time in Syria with [Mr E] while awaiting the outcome of your visa.

   Your claim that you faced persecution by your half-brothers and the Shiite community as the result of the formed perception that you have transgressed social mores and strict Islamic traditions was fundamental to the determination you are a person who meets the criteria for the grant of a Woman at Risk visa, because you did not have the protection of a male relative and were in danger of victimisation, harassment or serious abuse.

   There is now an indication that you were not facing real harm as claimed in your application for the Woman at Risk visa.

   …

   Therefore, I consider you have not complied with section 101(b) of the Act, in relation to your previous visa, as you have provided incorrect information to questions on the Form 842 – Application for an Offshore Humanitarian visa relating to your relationship status and your refugee claims regarding persecution from your family.

   Specifically, I consider that you have not complied with section 101(b) of the Act, in relation to your previous visa application, as you have provided incorrect information to the following questions on the Form 842 – Application for an Offshore Humanitarian visa which you completed and signed on 6 March 2012:

   ·In response to the following questions as part of question 2 – ‘Do you currently have more than one partner (other than any partner included in this visa application)’, and; ‘If you have indicated you are ‘never married or been in a de facto relationship’ or ‘engaged or married’, are you currently in any other form of a relationship (eg. boyfriend/girlfriend)?’, you answered: “No” to both questions.

   This appears to be incorrect information, given you have since indicated in your personal relationship statement on 28 November 2016 that you met [Mr E] in Iraq [in] May 2009 and your relationship started immediately, having been told by him on your first meeting that he loved you and having discussed life plans together just two weeks later. You also indicated that your relationship with [Mr E] was consistently maintained and developing from this time.

   I consider that your relationship which commenced in May 2009 and was consistently maintained until you became engaged in August 2012, would have been clearly defined to you after almost three years, when you answered this question in March 2012. I further note that you answered this question five months before you became engaged to [Mr E]. Furthermore, evidence in your and [Mr E]’s passports in the form of entry and exit stamps between Iraq and Syria and multiple visas for Syria, indicate that you travelled together and both remained in Syria between 2010 and 2012 until you departed for Australia, and [Mr E] returned to Iraq.

   The period of 660 days together with [Mr E] in Syria is an indication of either a boyfriend/girlfriend or engaged relationship and as such you had the protection of a male person when you applied for your Woman at Risk visa.

   ·In response to question 8 – ‘Have you or any other person included in this visa application previously been legally married, in a de facto relationship or in a customary/traditional/ religious marriage that is not legally recognised’, you answered: “No”.

   This appears to be incorrect information given you have since indicated that you met [Mr E] in Iraq in May 2009 and your relationship started immediately, having been told by him on your first meeting that he loved you and having discussed life plans together just two weeks later. You also indicated that your relationship with [Mr E] was consistently maintained and developing from this time. This is supported by the fact that you travelled together to, and lived with [Mr E] in Syria when you applied for your visa and until you departed for Australia. I consider that your relationship which commenced in May 2009 and consistently developed to the point of becoming engaged in August 2012, would have been clearly defined to you five months earlier, in March 2012, when you answered this question.

   ·In response to question 25 – ‘What is the name of the country you have a fear of returning to?’, you answered: “Iraq”.

   This appears to be incorrect information given you returned to Iraq on two occasions after the grant of your Woman at Risk visa, once in October 2014 and again in January 2017 for a combined period of 112 days. During your first visit, you had an engagement celebration in the presence of your mother, brother and [Mr E]’s family. This does not appear to be the behaviour of someone who genuinely fears for their life from members of their family. Further, you and [Mr E] have both stated that both of your families are fully supportive of your relationship and this is further indicated by the presence of male members of your family at your engagement. Furthermore, you had stated in your application that your family had tried to force you to marry a person of their choice, a person who was already married with children and you were subjected to harm for your refusal and this was part of the reason from your escape from Iraq.

   ·In response to question 29 – ‘What do you believe may happen to you, or the people included in your application, if you were to return to that country?’, you answered: “I was threatened to be killed by my family because I was enforced to get married to an old man but I refused such marriage, therefore I was beaten and threatened by killing. I ran away to my [Relative 1] in Baghdad then to Syria (the UN Refugee Agency)”.

   This appears to be incorrect information given you returned to Iraq on two occasions after the grant of your Woman at Risk visa, once in October 2014 and again in January 2017 for a total period of 112 days. During your first visit, you had an engagement celebration in the presence of your mother, brother and [Mr E]’s family. This does not appear to be the behaviour of someone who is genuinely fearing for their life from male members of their family. Further, you and [Mr E] have both stated that both of your families are fully supportive of your relationship and this is further indicated by the presence of male members of your family at your engagement, namely your half-brother [Brother M] who was allegedly the Power of Attorney who appears to be your step-brother. You claimed your brother [Brother B] was your half-brother, from your father’s second marriage and that he had tried to harm you however it appears he is your older brother bearing the same family name as you.

   Furthermore, you stated that your family had been forcing you to marry a person of their choice and you had been subjected to harm as a result of your refusal. I consider that following the mistreatment, threats of honour killing and subsequent escape from Iraq, that this conduct would not be aligned with the subsequent action of your family supporting and approving a relationship and marriage of your own choice.

   ·In response to question 30 – ‘Who do you think may harm or mistreat you if you go back to that country?’, you answered: “My family will kill me because I refused to marry an old man”.

   This appears to be incorrect information given you returned to Iraq on two occasions after the grant of your Woman at Risk visa, once in October 2014 and again in January 2017 for a total period of 112 days. During your first visit, you had an engagement celebration in the presence of your mother, brother and [Mr E]’s family. This does not appear to be the behaviour of someone who genuinely fears for their life from male members of their family. Further, you and [Mr E] have both stated that both of your families are fully supportive of your relationship and this is further indicated by the presence of male members of your family at your engagement.

   Furthermore, you stated that your family had been forcing you to marry a person of their choice and you had been subjected to harm as a result of your refusal. I consider that following the mistreatment, threats of honour killing and subsequent escape from Iraq, that this conduct would not be aligned with the subsequent action of your family supporting and approving a relationship and marriage of your own choice.

   ·In response to question 31 – ‘Do you think the authorities of that country can and will protect you if you return to that country?’, you answered: “No the authorities are unable to protect me against my family. I could be slaghtered (sic) by my family’.

   This appears to be incorrect information given you returned to Iraq on two occasions after the grant of your Woman at Risk visa, once in October 2014 and again in January 2017 for a total period of 112 days. During your first visit, you had an engagement celebration in the presence of your mother, brother and [Mr E]’s family. This does not appear to be the behaviour of someone who is genuinely fearing for their life from male members of their family. Further, you and [Mr E] have both stated that both of your families are fully supportive of your relationship and this is further indicated by the presence of male members of your family at your engagement.

   Furthermore, you stated that your family had been forcing you to marry a person of their choice and you had been subjected to harm as a result of your refusal. I consider that following the mistreatment, threats of honour killing and subsequent escape from Iraq, that this conduct would not be aligned with the subsequent action

   Response to NOICC

1. The applicant’s Agent provided a written submission in response to the NOICC.  In the submission the Agent provides the following details and submissions about the applicant’s former Agent:

   [In] April 2018, MARA made the decision to bar [Mr P]’s licence for a period of two years. In the decision, Professional Standards Officer, [Ms Q] states, “Having regard for the Former Agent’s lack of accountability for his own actions and associated disregard for the reliance of his clients on his expertise, I consider the Former Agent should be barred for a period of two years.” (Decision Record – [Mr P] – Barred page 16, para 120).

   [Ms Q] further states, “The Code contains a number of provisions aimed at ensuring that an agent manages the affairs of clients in a manner that serves a client’s best interests. This duty includes a requirement for migration agents to recognise the vulnerability of their clients by having ‘due regard to a client’s dependence on the agent’s knowledge and experience.’” (Decision Record – [Mr P] – Barred page 16, para 87). In these circumstances, [Mr P] did not take any consideration of the Visa Holder’s significant vulnerability and her complete dependence on him for immigration assistance.

   [Ms Q] continues to state in decision record, “While the Former Agent has acknowledged what he should have done procedurally in respect to Mrs M’s matter, in further statements at interview he also expressed frustration with his former clients, doubt about the genuineness of their concerns and an opinion that he had done everything for them.17 In making such statements the Former Agent has failed to demonstrate an understanding of his responsibility for his former clients’ adverse circumstances such as unnecessary additional expense, loss of income and the possibility of having to depart Australia.” (Decision Record – [Mr P] – Barred page 16, para 89). Similarly, in the Visa Holder’s situation, [Mr P] has failed to show an understanding of the Visa Holder’s situation and the consequences that would have arose (and have) by providing false and misleading information to the Department in respect of the subclass 309 visa.

   Through the negligence and misconduct of the Visa Holder’s previous Registered Migration Agent, [Mr P], the information provided to the Department for the 309 visa is false and misleading. Accordingly, we further submit that the information provided to the Department at the time of her subclass 204 visa application is correct.

2. The Agent also sets out country information about the situation for women and honour killings in Iraq.

3. Attached to the Agent’s submissions are the following documents:

   -A Statutory Declaration by the applicant, dated 12 December 2019.

   -A letter dated 13 December 2019 from the translator, declaring that they assisted the applicant to translate the statutory declaration as she cannot ‘speak any English… read or write’.

   -A copy of the applicant’s Australian Travel Document.

   -A copy of the applicant’s Iraqi passport.

   -A translated copy of the Marriage Contract between the applicant and her husband, [Mr E] dated [in] September 2016.

   -A translated copy of the applicant’s mother Death Certificate dated 30 January 2017.

   -A letter from a psychologist, [Dr R], dated 2 October 2018.

   -A Letter from Senior Consultant Psychiatrist [Dr S], dated 10 December 2019.

   -A Psychological Assessment from Clinical Psychologist [Dr T] dated 4 December 2019.

   -A copy of [Dr T]’s CV.

   -A screenshot of the Department of Home Affair’s website, which provides details of the sanction against the applicant’s previous Migration Agent’s.

   -A ‘Chart of Key Issues Raised’.

   -An ‘Executive Summary of Key Issues Raised’.

   -Photographs of the applicant with her husband, [Mr E]

4. In the applicant’s Statutory Declaration she states the following:

   I arrived in Australia in 2012 on a 204 visa and have been living in Australia since then.

   I have one full-sibling, my sister, [Sister U]. When my father and mother divorced, they remarried. When my father remarried, he had 5 children with his new wife, [Brother B], [Brother G], [Sister H], [Sister I] and [Brother J]. When my mother remarried, she had 3 children with her new husband, [Brother L], [Brother M] and [Sister K].

   My sister [Sister U]'s birthday was [date] but I am not sure about the birth dates for the rest of my siblings. I think [Brother B] was born in [year], [Brother G] in [year], [Brother J] in [year], [Brother L] in [year], [Brother M] in [year] and [Sister K] in [year]. I can't remember the years for [Sister I] and [Sister H]. I don't know if my siblings are married and I don't know the date of their marriage. I don't know why only 3 of my siblings were listed in the 204 visa. I thought I had told them about all my siblings but I do not remember.

   When my mother and father first divorced, [Sister U] and I lived with my mother. When my mother remarried, [Sister U] and I had to live my father and his new wife. In our culture, when a woman remarries, the children have to go live with their father.

   My half-brothers from my father's side, [Brother B] and [Brother G] were very cruel to me and [Sister U]. After my father died in 2005, they became even worse.

   The reason I applied for a refugee visa to Australia is because in 2010, my half-brothers, from my father's side, [Brother B] and [Brother G] were threatening to kill me when I refused to marry a man who was [Brother B]'s friend. This was an old man, was already married and already have children and I did not want to accept his proposal. When I refuse to accept the proposal, my half-brothers tortured me by hitting me, stabbing my hands and burning me with hot knives and they threatened to kill me. I still have the scars from when they tortured me.

   I knew their threats to kill me were real because they had murdered my sister, [Sister U] in 2009. I told the psychologist about how it happened. It is a very painful thing for me to talk about. They thought she had a boyfriend, which in our culture is forbidden and wanted her to give them the house which she had inherited from our father. After they killed my sister, I could not ask for help from anyone. The police would not help me, they would think that it was [Brother B] and [Brother G]'s right to kill my sister to protect the family's honour. In Iraq it is not like it is here, police do not protect you.

   They told me they were going to kill me like they killed my sister. I have to escape or I would be killed too.

   I escape from them and went to my [Relative 1]'s house in Baghdad. My half-brothers call my [Relative 1] because they were looking for me and threatened to come find me to kill me. I travel to Syria to escape them.

   I could not depend on my half-brothers from my mother's side to protect me because I did not live with them and did not even know them. I was living with my father and my half-siblings from my father's side and my mother lived in Dhiqar which is an hour and a half from where I lived with my father. I knew of my half brothers but did not have any relationship with them. How can I expect protection from them when I do not even know them? They have no power to protect me because [Brother B] and [Brother G] drink a lot and they do not care about anything and they can kill like they killed my sister. They already kill my sister and no one was there to protect her. I do not feel safe with them because they can just give me back to [Brother B] and [Brother G].

   I make secret trips to Iraq in 2011 because my mother was very sick then. She was with my [Relative 1] in Baghdad which allowed me to visit them in secret because my half-brothers lived in Samawah which is far enough from Baghdad that I could make the secret visit.

   [Mr E] and I first met in 2009 in a taxi. At that time, he was not my boyfriend, he was not even a friend, he was just a taxi driver. I arrived in Baghdad and got a taxi where [Mr E] was the driver. He drove me to my [Relative 1]'s house. When we arrived at my [Relative 1]'s house, my mother took his number so that she could ask him to run errands for her like taking her to appointments, shopping etc. She paid him to do this work for her.

   In 2010, when [Brother B] and [Brother G] made threats to kill me, I had to tell my mother what happened. When my sister, [Sister U] was killed, I didn't tell her when it happened but when [Brother B] and [Brother G] threatened to kill me, I tell my mother everything. She told me to go to my [Relative 1]'s house in Baghdad. I could not go to her house because [Brother B] and [Brother G] would have easily found me. I escaped to my neighbour's house and then took a taxi to Baghdad. When I arrived in Baghdad, [Mr E] picked me up because my mother told him to, and drove me to my [Relative 1]'s house.

   [Mr E] is a kind man who helped me when I was most fearful for my life. He help me go to Syria in 2010 to escape my half-brothers. In Syria, we did not speak much but if I needed something, he would help me. He was just a kind man who helped me in my time of need. In our culture, there is no such thing as a boyfriend/girlfriend relationship, especially in places outside Baghdad, where I am from. In our culture, only when two people are engaged and married then they are in a relationship.

   In Iraq you will be killed if you are in a relationship with a man but not married to him.  I was already fearing for my life, if I was in a relationship with [Mr E] I would have been killed by anyone. It is the same in Syria, where if a man is with a woman and they are not married, they can be killed.

   When I answered 'No' the question in the refugee visa application about whether I had a partner or was in any relationship, I was telling the truth. [Mr E] was not my partner or my boyfriend at the time and I did not even consider him to be a partner until years later when I made the decision to become engaged and then married to him. I was in so much pain at that point that I did not even consider having a partner or even wanting to be with a man.

   Only when I am safe in Australia that I could think about being with a man. When I was in Australia, [Mr E] help me talk to my mother and know how she was. We talk over the phone because he wanted to make sure I was okay in Australia and he would give me updates on my mother. To me, he was a nice person who is concerned about someone. I only start to think of [Mr E] as a partner when I visit Iraq in October 2014 to see my sick mother. During this visit [Mr E] and I became engaged. The engagement celebration was in [Mr E]'s home in Baghdad. It was a very small engagement ceremony - the only people who come to the engagement were my mother, my half-brother from my mother's side, [Mr E]'s mother and his siblings. Family from my father's side do not know about this.

   I did not write the relationship statement in the partner visa application. The agent wrote the statement without my knowledge. He asked me some questions and I answer them but the full relationship statement was never translated to me and I did not know about the statement until I got the letter from the Department.

   I did not immediately fall in love with [Mr E] in the taxi when I met him and we did not become engaged in August 2012 before I left for Australia. I was traumatized by everything that happened to me that I could not even think about being with a man. I also do not know why the agent put in the relationship statement that [Mr E] did not travel with me to Syria. He did travel with me to Syria because he was the one that helped me to go to Syria and my mother paid him to go with me to Syria. When we in Syria, we live in different places. He moved to Syria because he want to find work there. I would talk to him sometimes when I need something or if I want to talk to my mother, he would help me. He did follow me to Iraq when I travelled there in 2012 because I was very scared about travelling there by myself and my mother ask him to follow me. He left Syria because the war in Syria was becoming worse and it would be dangerous for him to stay in Syria longer.

   I visited Iraq twice after the grant of my refugee visa. The first time was in October 2014 and I came back to Australia in January 2015. I visited Iraq because my mother was very sick. I got permission from the Department before I travelled. I call them and tell them that I need to travel because my mother was very sick and they give me permission. I travel to Iraq secretly, only my mother and [Mr E] know I was coming. My mother was in my [Relative 1]'s house in Baghdad when I came to visit and I stayed with them.

   The second time I visited Iraq was in January 2017 and I came back in May 2017.  My mother had passed away and I could not take it if I could not attend her funeral. Again I call the Department to ask for permission to travel and they gave me permission to travel to Iraq.  I am the eldest daughter … and in our culture the eldest daughter must attend the funeral because I have to wash the body and prepare the body for burial. After that we have to wait 40 days for another ritual.

   I have lost so many in my family already and when my mother passed away I was in so much pain, I did not want to live anymore.  That is why after the funeral I stayed with my husband for a while.  I love Australia for give me a safe place to live but I have no family here and I feel so alone.  Even when I was in Iraq and staying with my husband I did not leave the house because I was scared that someone might recognise me and tell [Brother B] and [Brother G] I am in the country.   When I come back to Australia I had to take more medication because I was in so much pain.  I tried to commit suicide in 2017 because I could [not] live my pain anymore but [Mr E] called me and stopped me from killing myself.

   I cannot go back to Iraq because if I do, I know my half-brothers will find me and kill   me. Even though I am married to [Mr E] they will not respect this and they kill us both.  To them the marriage is not a real marriage because I did not get their permission to marry [Mr E].  Even though my half-brother my mother’s side approved this is not enough.  The men form the father’s side are more important and without their permission I should not have been able to marry.  They will not respect my marriage to [Mr E] and will kill me or kill me and [Mr E].  I am scared for his life.

   The only way I can travel to Iraq in 2014 and 2017 was because I travel in secret and I did not even leave the house when I was there.  If I go back and live in Iraq my half-brothers will find out and they will come find me and kill me.  I was to be killed but I escaped before and I know my half brothers will never forget this. Australia is the only place they cannot get to … .

5. The report from psychologist, [Dr R], states that the applicant “has been seen by different professionals due health issues that have risen during the time she has lived in Australia, numerous health problems she has incurred have started overseas and worsened in Australia.”  The applicant is on medication, Remeron Soltab and Quetiapine APO.   “She has exhibited a range of symptoms over the consultations, which are consistent with Depressive mood, grieving and Insomnia ….” She “is suffering from PTSD, Major depressive disorder and Insomnia”.

6. The report from clinical psychologist, [Dr T] states that the applicant “is suffering from Major Depressive Disorder, Severe with Anxious Distress. She is medicated for all of these issues but the treatments have not proved sufficient for her to experience a normal level of mental health.”  The applicant “has significant mental health issues and is under the care of a psychiatrist. She is medicated with Venlafaxine, which is an SSNRI antidepressant; Mirtazipine, which is an antidepressant that is often used to treat anxiety; and Olanzapine which is an antipsychotic medication…. She reported trying to overdose after her mother's death but a phone call from [Mr E] stopped her in time.”  The applicant “reported that she has been medicated since she arrived in Australia but her medications have been increased as her mood has deteriorated. The death of her mother was a significant point in her decline and now she is very much affected by not being with her husband.”

7. The letter from Senior Consultant Psychiatrist [Dr S] states that the applicant visited the doctor’s clinic in “August 2019, diagnosed with Major depression with psychotic symptoms. Medication; antidepressant [venlafaxine,mirtazapine]. Olanzapine [ antipsychotic].”

   Delegate’s decision

8. On 4 August 2020 the delegate decided to cancel the applicant’s current Resident Return subclass 155 visa under s.109 of the Act.  The delegate was satisfied that that the applicant provided incorrect information in her Refugee and Humanitarian (Woman At Risk) subclass 204 visa application. This conclusion was based on the delegate’s consideration of the applicant’s travels to Iraq and inconsistent information she provided to the Department in her husband’s Partner subclass 309 visa. This information related to the details of her immediate family, the chronology of events with respect to her claims for protection, her relationship with her husband and her relationship with her family members.  As such, the delegate was satisfied there had been non-compliance by the applicant with s.101(b) of the Act.

9. The delegate weighed the discretionary considerations and found that the applicant’s non-compliance with s.101(b) outweighed the reasons not to cancel the visa.

   Information to the Tribunal

   Pre-Hearing Submissions

10. On 13 May 2021 the applicant’s Agent forwarded several of the documents previously submitted to the Department, outlined above, and the following additional documents:

    -A psychological report by Psychologist [Dr R], dated 17 April 2021, stating that the applicant is suffering from severe PTSD, Major Depressive Disorder, and Insomnia.

    -A psychiatric report by Senior Consultant Psychiatrist, [Dr S], dated 16 March 2021, stating that the applicant’s illness is chronic and resistant and has impaired her function and performance.

    -A report by [Dr V], dated 20 April 2021, stating that the applicant suffers from PTSD with subsequent anxiety and depression, with frequent thoughts of self-harm, terrible flashbacks, and auditory hallucinations.

    -A Statutory Declaration by [Ms W], stating that her mother and the applicant are friends. The applicant comes to their house. The applicant is illiterate.  [Ms W] speaks the same dialect as the applicant. When they speak together she has to repeat what she is saying to the applicant to explain things.  She also finds that the applicant often agrees or says yes even if the applicant doesn’t understand something.

    -A Statutory Declaration by [Mr X], stating that the applicant is friends with him and his wife and they give her support.

    -The applicant’s Pensioner Concession Card.

    -The Department’s Decision Record barring the applicant’s former agent from being registered as a Migration Agent for two years from April 2020.

    -A Statutory Declaration from an employer at the applicant’s former agent’s firm confirming that the applicant was angry to learn the former agent had put information in her written statement which she had not provided to him. The employee confirms that there had been other similar complaints against the former agent by other clients.

11. The Agent also made written submissions as follows:

    It is our submission that the Department has incorrectly, detrimentally, and prematurely misconstrued which set of information is incorrect across the separate and distinct visas of the Applicant and their partner. We submit that the information tendered in the separate and distinct partner visa which goes against the Applicant’s separate and distinct protection visa, is the ‘incorrect information’, owing to the negligence of the previous registered migration agent and the vulnerable status of the Applicant.
    …

    The Applicant’s two department-approved travel back to Iraq was to visit her ill-mother and subsequently participate in the religious and cultural burial rites for her mother’s funeral. While the delegate submits that “do not consider this [travel] to be the behaviour of someone who genuinely fears for their life”, the Applicant had compelling reasons to travel and her ability to subsist in Iraq cannot fairly be determined by two transient and secret visits back to Iraq for the purpose of visiting her ill (now deceased) mother and engaging in religious burial rites.

    In addition, policy dictates that care should be exercised in circumstances that the visa-holder lacks mental capacity (including mental health issues such as depression) which may hinder their ability to understand and engage in the cancellation process. The Applicant is vulnerable due to her professional diagnosis with severe depression, PTSD, and anxiety. She is also unable to speak English and is illiterate in her own language (Arabic). These unique circumstances significantly hinder the Applicant’s ability to substantively engage and understand the cancellation process.
    …

    We duly submit that:

    (i) The circumstances in which the inconsistency occurred was a direct result of the negligence of the Applicant’s previous registered migration agent, and her vulnerable status;

    (ii) The ‘correct information’ was tendered by the Applicant in her original woman at risk visa application and the Visa Cancellation Officer did not engage in genuine considerations or an active intellectual process when determining material facts;

    (iii) That Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
    …

    (i) Circumstances in which the non-compliance occurred
    …

    In a psychologist report of the Applicant, prepared by [Dr T], it was stated that the applicant “presents as a sincere individual who was telling me the truth. Her lack of education has in my view caused her to struggle with communicating information in a structured manner. At no stage did she appear to me trying to misrepresent events but rather she struggles construct communications that make the points she is trying to make or answer questions clearly and directly”, indicative of the fact that the Applicant is a believable and truthful individual who might be easily taken advantage of or misconstrued.
    …

    In this matter, the Applicant should be conceptualised as a ‘vulnerable person’ as she has been diagnosed with major depression. Her treating psychiatrist, [Dr S], explains in a letter dated 10 December 2019, that: “she visited our clinic on August 2019, diagnosed with Major depression and psychotic symptoms. Medication: anti-depressant (venflaxine, mirtazapine), Olanzapine (antipsychotic)”. In subsequent letters of her prognoses addressed to the Applicant’s treating general practitioner, [Dr V], he stated:

    •“been hearing her sister voice talking to her, while her sister was killed in front of her back in Iraq…her illness is chronis and resistant with limited prognosis, and which has impaired her function and performance”

    •“stressed about her visa and her future in Australia”  

    •“mood is low, poor sleep, having death wishes, no plans to end life, and having more auditory hallucinations (her sister and mother), feeling fearful”

    The Applicant’s treating medical practitioner, [Dr V], further explains her vulnerability, providing in a letter dated 10 Oct 2018: “[the applicant] suffers from significant post-traumatic stress disorder with subsequent anxiety and depression as a result of the terrible trauma she witnessed and experiences prior to arrival in Australia. She is undergoing long term psychological and pharmaceutical treatment for these conditions”. The Applicant witnessed her sister, [Sister U], be honour killed by her paternal brothers.

    [Dr V] extended her support of the Applicant in a letter dated 20 April 2021:

    “[she] has been a regular patient of my practise since 24 August 2012….suffers from significant post-traumatic stress disorder with subsequent anxiety and depression to the point of frequent thoughts of self-harm, terrible flashbacks and auditory hallucinations…Her Psychiatrist has prescribed a number of medications with I believe will not be available back in Iraq…I hold grave fears for her personal safety is she is told that she will be required to leave Australia because she has previously indicated to me that this news would increase her suicidal thoughts. I am aware that her mental health has deteriorated significantly since she became aware of the possibility of being asked to leave Australia. It has caused significant fear and greatly increased her flashbacks”

    In the Applicant’s psychological report, [Dr T] diagnosed her with Major Depressive Disorder, Severe with Anxious Stress. The symptoms associated with these mental illnesses include “being sad, suffering ongoing insomnia including broken sleep, anhedonia, significantly increase appetite, having reduced motivation, and feeling that life is meaningless”.

    In [Dr T]’s psychological report, she also diagnosed that the Applicant experiences “acute episodes of anxiety, the physiological symptoms of which included of increased heart rate, difficulty breathing, and trembling”. [Dr T] indicates that while the Applicant “is medicated for all of these issues…treatments have not proved sufficient for her to experience a normal level of mental health”, indicative of the acute vulnerability and low quality of life the Applicant possesses. The culmination of the Applicant’s severe mental health issues is distressingly shown in her reporting to [Dr T] that “if she has to [permanently] return to Iraq then suicide is her only option”.

    The death of her mother [in] Jan 2017 represented a significant deterioration in the Applicant’s mental health. According to [Dr T] in her psychologist report, this is because in the Applicant’s unhappy and traumatic life “her mother was the last remaining person who was ever kind to her”. In addition, [Dr T] reports that the applicant is “very much affected by not being with her husband”. [Dr T] reported in her psychological assessment that this low mental health culminated in a suicide attempt.

    [Dr T] further reports that the Applicant was “prevented from attended school throughout her childhood and is consequently illiterate in her own language. She does not speak English [and] has never worked in any paid employment and is currently reliant on Centrelink payments” 

    The Applicant receives ongoing treatment for her mental illnesses and sees an array of medical practitioners, including [Dr V] (general practitioner), [Dr S] (Psychiatrist) and [Dr R] (Clinical Psychologist).

    [Dr R] reported in a Psychological Report and Assessment dated 17 April 2021, that the applicant “demonstrated many vocational barriers including her limited physical health issues, mobility restrictions with risk of having other related conditions, lack of interpersonal skills, limited support network and separation form her husband since 2017”.

    [Dr R] diagnosed the Applicant with “severe PTSD, Major Depressive disorder and Insomnia”. He recommends that:

    “due to the vast amount of health issues, she is facing it is evident that she currently needs support and care. Her psychological difficulties as well as physical pain have clearly had a negative impact on the quality of life and daily routine. As her psychologist, I have examined her, and she has been showing great deal of chain in mood, memory problem, severe anxiety and stress that has been caused by multiple medical conditions, the delay of her visa application and separation from her husband. I highly recommend the extra support and care for her due to her multiple health conditions”.

    …

    Comparatively, the current Applicant suffers the additional disadvantages of not knowing the legal system, not being able to speak English, illiteracy in her own language (Arabic), little worldly experience as she does not have employment, no education, and trustingly relying upon her past registered migration agent, [Mr P], to provide competent assistance.
    This is supported in the Statutory Declaration provided by [Ms W], a friend of the Applicant who assists her with translations. [Ms W] states in her Statutory Declaration dated 15th April 2021:

    “Because she is illiteracy in Iraq, she wasn’t taught how to read and write Arabic and English. [The Applicant] didn’t go to school properly and lifelong disadvantages to learn new skills.  I understand her dialect because I leaned at school…I had a friend in the university who also spoke [the applicant’s] dialect. I need to explain what I am saying to [the applicant] 2-3 times as sometimes this helps clarify things. This benefits [the applicant] by listening to a wide range of things. [The applicant] often agrees or says yes if she doesn’t understand. If she doesn’t have a support person with her she becomes vulnerable and unable to make decisions”.

    The is further supported in the Statutory Declaration of [Mr X], dated 17 April 2021:

    “My wife sometimes cares for [the applicant] because when [the applicant] takes her medication she may become drowsy, she help her showering and spend time with her and keep her company…I help her with shopping and attending appointments with doctors to get her medicines, also I take her to the beach to help clear her mind, and my wife will help her shower and fix her house sometimes.

    [The applicant] requires help because her medication makes her drowsy. She is lonely and she doesn’t have too many friends. I feel sorry for her and I support her.  She clears her head at the beach because she is upset about her application and she misses her husband and she wants a better life and a stable future”.

    The Applicant’s General Practitioner, [Dr V], impactfully explains in a letter dated 20 April 2021:

    “[The applicant] has been a regular patient of my practice since 24 August 2012. She consults with me regularly for a number of significant health matters and at each consultation we use the Translating and Interpreting Service via telephone.
    [The applicant] suffers from a significant post traumatic stress disorder with subsequent anxiety and depression to the point of frequent throughs of self-harm, terrible flashbacks and auditory hallucinations. This diagnosis has been provided by her psychiatrist [Dr S]. This has occurred as the result of the terrible traumas she witnessed and experienced prior to her arrival in Australia. This includes being present and witnessing the murder of her sister”.

    …

    The RMA responsible for assisting the Applicant and her partner prepare a Prospective Marriage (subclass 309) Visa, in which the Applicant was listed as the sponsor, was prepared, and overseen by [Mr P] (MARN [redacted]). He assisted the couple from the lodgement on the 12 May 2016 until approximately 14 February 2017, when the Department was advised that “[Mr P] is no longer working for our firm”, [Firm 1].

    The director of [Firm 1], [named], acknowledges this malpractice in a statutory declaration dated 12 May 2021:

    “I believe that [Mr P] at the time took information from [the applicant] and he did a statement which she was informed by the Department that was condradictve or incorrect. She did attend when further information was requested by the Department and she was furious to know that the information on the statement she did not provide to the instructing solicitor. She took her file at the time elsewhere.

    I am sincerely sorry for the situation as she has suffered enough and to be honest she is not the only client with complaints about [Mr P] and [Mr Y]. [Mr P] lost his MARA registration as a result. If any further information is requested, I am more than happy to assist.  [The applicant] has signed 956 for me to carry on her husband’s immigration matter. I hope that I can make up for the damages that the previous solicitors have caused to her application”.

    [Mr P] was barred for 2 years [in] April 2018, following two separate complaints about his misconduct as a Registered Migration Agent. Evidence of his bar can be seen in annexure 3.1 and 3.2. Both of these complaints held that the complainants faced the prospect of having to leave Australia following the malpractice of [Mr P].  In the OMARA’s decision, they stated:

    “consumers, particularly those of migration advice services, are often in a vulnerable position and have a right to place their trust and confidence in their agent to act in their best interests. I am not satisfied that the Former Agent is capable of meeting these expectations. The Former Agent has demonstrated a pattern of behaviour that falls well short of the reasonably expected standards of a registered migration agent”.

    OMARA pointedly concluded that:

    “I am not satisfied that if the Former Agent were to practice as a registered migration agent in the future, he would be able to avoid engaging in a similar pattern”

    In reaching their decision to bar [Mr P] under ss 311A(1) of the Migration Act, they took into account dicta in Narayanan v Migration Agents Registration Authority [2006] AATA 353, in which the AAT said, “it is well established that the purpose of a power such as that given by s 311A of the Act is not to punish wrongdoing, but it is to protect the public from wrongdoing”.

    Resultingly, we submit that we cannot be satisfied that the RMA past practice is absent from engagement in a similar pattern of neglect and unprofessionalism.

    In the present case, the fraudulent personal relationship statement, which was at odds with the Applicant’s woman at risk application, states that she met [Mr E] in Iraq [in] May 2009 and that their relationship started immediately, having been told by him on their first meeting that he loved her and having discussed life plans together just two weeks later. This narrative is not believable, ingenuine, and partner visa applications with similar stories have rightfully been dispelled from consideration owing to their purposeful falsity and fantasy.

    …
    Similarly, in the Relationship Statement submitted to the Department in [Mr E]’s Partner Visa Application, it is provided that the Applicant and the Sponsor immediately felt a connection and that “he confessed that he fell deeply in love with [her]”. This contrived relationship history is ingenuine and was provided purely to “support an immigration outcome” by the RMA. The Applicant submits that she had no knowledge of the content of the offending relationship statement provided to the Department by [Mr P] in the Partner Visa application. This is believable, owing to her vulnerable status as illiterate in her own language, and being unable to speak or write in English. The Applicant explains in her statutory declaration:

    “I did not write the relationship statement in the partner visa application. The agent wrote the statement without my knowledge. He asked me some questions and I answer them, but the full relationship statement was never translated to me and I did not know about the statement until I go the letter from the Department”.

    This is supported in the Statutory Declaration provided by [Ms W]…

    The misconduct of [Mr P] in this case is not an unreasonable conclusion in consideration of the fact that he was barred from practice for “a pattern of behaviour that falls well short of the reasonably expected standards of a registered migration agent” and a history of complainants not being properly informed by him until they get letters from the Department refusing their visa applications.

    [Dr T] further expounds in her Psychological report of the Applicant that, “throughout the [psychology report] interview I had to cross check and clarify important points, but at no stage did I detect guile, cunning or the ability to deceive”, indicative of the fact that this Applicant’s matter required attention and professionalism owing to her vulnerable status and it is clear that [Mr P] did not attend to this cross-checking and clarifying of important points, simply writing down points and hatching a story. It is also clear and concerning that regulation 3.6 of RMA professional conduct - “must ensure that clients have access to an interpreter if necessary” – was not followed in that the relationship statement was never translated back to the client, significantly impacting her right to competent representation and procedural fairness.

    It is unfortunate that this bar/protection against wrongdoing did not exist before the Applicant and her partner applied for their partner visa, because it is a direct result of [Mr P]’s unethical actions that the Applicant’s visa was cancelled.

    We submit that the Applicant should have been able to rely on [Mr P] to act with professional integrity, and to act in her best interests, as per the Professional Conduct Rules. We further submit that [Mr P] fraudulently put forward incorrect and baseless information in the partner visa application to bolster his own ‘genuine relationship’ narrative between the Applicant and her partner. The Visa Cancellation Officer concurred on the fanciful nature of the personal relationship statement, stating:

    “I consider that the visa holder provided information in support of [Mr E]’s Partner visa application which was inconsistent as it was of benefit at the point in time for her to do so, in order to assist [Mr E] being granted a visa which would provide him a pathway to migrate permanently”.

    We submit that it was the previous registered migration agent who submitted information which was inconsistent because it was of benefit at the point in time for him to assist his client obtain a visa. The Applicant should not be held responsible for this malpractice, especially because she holds an extremely vulnerable status which was taken advantage of, namely: mental health issues arising from trauma, illiteracy, lack of formal education, and not possessing any family support in Australia.

    …
    Relationship Status of the Applicant
    …
    In the matter at hand, the Applicant has consistently, compellingly, and persuasively maintained that she was not in a relationship at the time that she made her woman at risk visa application.
    As per the Applicant’s statutory declaration, dated 12 December 2019, she first met her now husband, [Mr E], in 2009 when she procured his paid services as a taxi-driver to take her to her [Relative 1]’s house in Baghdad, where she was visiting her mother who was staying with her [Relative 1] .

    The Applicant emphatically explains in her statutory declaration dated 12 Dec 2019 that “at the time, he was not my boyfriend, he was not even a friend, he was just a taxi-driver”. She further explains that when she arrived at her [Relative 1]’s house, her mother took his number so that she could ask him to run errands for her such as “taking her to appointments, shopping etc.” and “[her mother] paid him to do this work for her”. Taking taxi driver’s phone numbers in countries such as Iraq, Syria and Lebanon is common practice in order to book directly.

    Her mother had quite severe diabetes and so paid assistance to go about daily life routines and chores was required. All of this is to say that [Mr E] had a purely commercial and professional relationship with the Applicant’s mother and any contact the two had from that point was incidental to his employment.

    In 2010, when the Applicant’s half-brothers – [Brother B] and [Brother G] – threatened to honour kill her, the Applicant’s mother procured the services of [Mr E] as a taxi driver to pick the Applicant up from Baghdad. This is explained by the Applicant in her statutory declaration date 12 Dec 2019:

    “When I arrived in Baghdad, [Mr E] picked me up because my mother told him to and drove me to my [Relative 1]’s house”.

    [Mr E]’s services as a taxi driver were further utilised to enable the Applicant to flee to Syria in 2010. The Applicant explains in her statutory declaration dated 12 Dec 2019:

    “[Mr E] is a kind man who helped me when I was most fearful for my life. He help me go to Syria in 2010 to escape my half-brother. In Syria, we did not speak much but if I needed something, he would help me. He was just a kind man who helped me in my time of need”.

    In the Psychological Report, by [Dr T], she adds to this understanding, stating: “At this stage he was merely a kind individual who organised transport, and [the applicant] met the cost”.

    In any culture, helping someone out of the goodness of your heart, or in a position of paid employment, is not tantamount to a ‘relationship’ within the meaning conferred by the questions in the woman at risk application.

    In the matter at hand, the Applicant was not in a relationship with her sponsor at the time that she applied for her woman at risk visa. She was a vulnerable, young woman who had just been threatened with honour killing for refusing to marry a man. As the Applicant logically explains in her statutory declaration dated 12 December 2019:

    “I was in so much pain at that point that I did not even consider having a partner or even wanting to be with a man”
    “Only when I am safe in Australia that I could think about having a man. When I was in Australia, [Mr E] would help me talk to my mother and know how she was. We talk over the phone because he wanted to make sure I was okay in Australia and he would give me updates on my mother. To me, he was a nice person who is concerned about someone“.

    Furthermore, culturally, there is no such thing as a “relationship” in Iraqi culture. The Psychology Report, by [Dr T], explains: “in Iraqi society, there is only betrothal and marriage between the sexes. There is no concept of dating prior to this”.

    The Applicant further corroborates this reality in her statutory declaration dated 12 Dec 2019: “In our culture there is no such thing as boyfriend/girlfriend relationship…In our culture, only when two people are engaged and married, then they are in a relationship”.

    “In Iraq you will be killed if you are in a relationship with a man but not married to him. I was already fearing for my life, if I were I a relationship with [Mr E] I would have been killed…it is the same in Syria, where if a man is with a woman and they are not married, they can be killed” .

    As stated in her Statutory Declaration on 12 Dec 2019, she “only started to think of [Mr E] as a partner when I visit Iraq in October 2014 to see my sick mother. During this visit, [Mr E] and I became engaged”.

    The Applicant transparently explains in her statutory declaration dated 12 Dec 2019:

    “When I answered ‘no’ the question in the refugee visa application about whether I had a partner or was in any relationship, I was telling the truth. [Mr E] was not my partner or my boyfriend at the time and I did not even consider him to be a partner until years later when I made the decision to become engaged [in 2014 – more than 2 years after the Applicant came to Australia] and then marry him [by proxy on 18 September 2016]”.

    While the Visa Cancellation Officer states that “it appears the visa holder and [Mr E] had travelled to Syria together and they had spent a majority of the time there together [from] October 2010 until her departure from that country [in] August 2012 after which [Mr E] returned to Iraq [in] August 2012 and he does not appear to have further travelled” this does not reasonably indicate that the Applicant and [Mr E] were in a romantic relationship at that time, as he was working in his capacity as a taxi driver and it is very common for people in his profession to travel long distances. The Visa Cancellation Officer acknowledges this herself, stating that “there is no solid evidence to support a ‘romantic’ relationship at the time”.

    In genuine consideration of the information, we consequently submit that the Applicant’s previous agent concocted a fraudulent statement in order to strengthen the Partner visa application and that the Applicant unknowingly signed off on the contents of this letter owing to her vulnerable status. The Applicant has been compelling, consistent, logical, and persuasive in telling her story – one which was grossly misrepresented and disregarded by the Applicant’s previous RMA agenda to bolster evidence of ‘genuineness of relationship” at any cost.

    Applicant’s siblings
    In this application [her] Application for an Offshore Humanitarian visa … she listed the following family:

    •     [Ms N] (mother) date of birth: [year]

    •     [Mr O] (father) date of birth: [year]

    •     [Brother B] (half -brother) date of birth: [year]

    •     [Brother G] (half-brother) date of birth: [year]

    •     [Sister I] (half-sister) date of birth: [year]

    The absence of full dates of birth is indicative of the fact that the applicant did not know these details for her large family, and this lapse is not unreasonable considering the extreme trauma the Applicant was in the midst of and continues to be affected by.

    In the Applicant’s statutory declaration, dated 12 December 2019, she stated, “I don’t know why only 3 of my siblings were listed in the 204 visa. I thought I had told them about all my siblings”, a surety which could not be confirmed by her because she is illiterate in her own language and was in the midst of an extremely traumatising ordeal – leaving her country as a result of being threatened with an honour killing.

    On the form – Application for migration to Australia by a partner – submitted as part of the separate and distinct visa application of [Mr E], there are several instances of discrepant new information:

    •  Applicant’s father is listed as [Mr F] born [year]

    •  The applicant’s siblings are listed as:

    •     [Brother B] (brother) (married) date of birth: [date]

    •     [Brother G] (brother) (married) date of birth: [date]  

    •     [Sister H] (sister) (married) date of birth: [date]  

    •     [Sister I] (sister) (married) date of birth: [date]

    •     [Brother J] (brother) (never married) date of birth: [date]

    •     [Sister K] (stepsister) (married) date of birth: [date]

    •     [Brother L] (stepbrother) (married) date of birth: [date]

    •     [Brother M] (stepbrother) (married) date of birth: [date]

    The Migration Agent, [Mr P], who lodged the partner visa of behalf of the applicant’s partner, entered incorrect birth dates for the Applicant’s half siblings in lieu of the fact that the Applicant did not know what these dates were. This is indicated by the supplementation of “1 February” or “1 January” for all of the applicant’s half-siblings, acting as a common placeholders. We note here, for some defence of [Mr P]’s imputation of incorrect information, that the online application does require the full date to be filled out for it to be submitted electronically. However, [Mr P]’s imprecision can further be seen by the incorrect birth year [being] entered for the Applicant’s father. The agent also failed to classify the half-siblings as maternal or paternal ones in the Partner visa application, resulting in an extremely confused submission.

    The Applicant does not know or does not remember specific details of birth, and this missing knowledge is exacerbated by her illiteracy. Furthermore, please be advised that the Applicant’s confusion regarding the dates may also be due to the fact that in Iraq, the Islamic lunar calendar, or Hijri calendar is used. This calendar is different from the Gregorian calendar used in western countries, such as Australia and it can be difficult for those accustomed to the Hijri calendar to convert dates.

    The Applicant described her extensive family in her statutory declaration, providing:

    “I have one full-sibling, my sister, [Sister U]. When my father and mother divorced, they remarried. When my father remarried, he had 5 children with his new wife: [Brother B], [Brother G], [Sister H] and [Brother J]. When my mother re-married, she had 3 children with her new husband, [Brother L], [Brother M] and [Sister K]”.

    Due to the complex and blended family the Applicant possesses, it cannot be construed as ‘incorrect information’ that the Applicant simply did not know the birthdays for all of her extended family. Furthermore, when the Applicant was applying for asylum, she had undergone the traumatic experience of having her brothers threatened to honour kill her, she had witnessed her sister’s murder, and she was alone in Syria, facing the prospect of having to leave her home and everything she ever knew.

    The Applicant further states in her statutory declaration dated 12 December 2019:

    “My sister [Sister U]’s birthday was on [date], but I am not sure about the birth dates for the rest of my siblings. I think [Brother B] was born in [year], [Brother G] in [year], [Brother J] in [year], [Brother L] in [year], [Brother M] in [year] and [Sister K] in [year]. I can’t remember the years for [Sister I] and [Sister H]. I don’t know if my siblings are married, and I don’t know the date of their marriage”.

    In the Applicant’s statutory declaration, dated 12 Dec 2019, she details that her only full biological sibling, her sister, [Sister U], was murdered by honour killing in 2009 by her two half-brothers, [Brother B], and [Brother G], because they believed that she had a ‘boyfriend’ which is seen in their culture as justification for honour killing.

    In the Psychologist Report conducted by [Dr T], she further illuminated that her half-brothers wanted her sister to sign a waiver to allow the transfer of their father’s property and that she refused.

    In the Psychology Report conducted by [Dr T], the Applicant described in detail what happened to her full biological sister, [Sister U], who was left out of the list of family members. The Applicant explained that:

    “Her stepmother took her younger children (son [Brother J] and daughters [Sister I] and [Sister H]) out for the day…the older brothers [Brother B] and [Brother G] had been drinking and they performed the murder in the house. [The Applicant] was bound and gagged in another room but was able to describe the process from what she heard and what she saw in the aftermath. They used gas (from a normal gas bottle used for cooking) and some form of head covering to sedate her and then stabbed her repeatedly. The process began around 5pm and by 10pm her sister had died. [The Applicant] said she does not know what they did with the body, but there was blood on the floor and walls. The son’s mother cleaned this up when she returned later that night”.

    The Visa Cancellation Officer was concerned that “this information was not present as part of her claims for the Refugee and Humanitarian (Woman at Risk) visa…as it is highly relevant and highly important information to support her protection claims” and that the Applicant did “not mention that she had a sister named [Sister U] in her application for the Refugee and Humanitarian (Woman at Risk) visa nor…in the Partner visa application lodged by [Mr E]”.

    We submit that this absence is not unreasonable nor is it a indicative of “guile, cunning or the ability to deceive”, as endorsed by [Dr T] in her Psychological Report into the Applicant. The circumstances surrounding [Sister U]’s death are not only extremely traumatic for the Applicant to remember, but she also possesses a cultural barrier to effective communication on this matter, owing to the acceptance of and the shame associated with ‘honour killings’ in Iraq and the Islamic culture.

    Academic, Aisha Gill, defines ‘honour’ as “not only a person’s estimation of their own worth, but also the acknowledgement of that claim by their community through the recognition of their right to respect”. She further explains that “honour relates to the behaviour expected of members of a particular community, while shame is associated with transgressions against these expectations”.

    Aisha Gill states that in Islam, “men are expected to uphold their family and social group’s honour by ensuring that ‘their’ women do not bring shame upon the family” and “in societies with honour-based value systems, honour is typically equated with the regulation of women’s sexuality and their conformity with social norms and traditions” - the oppression of women by Western standards. The positive connotations surrounding ‘honour’ are used to justify and excuse violence and murder.

    The DFAT report on Iraq (August 2020) confirms that ‘honour killings’ remain a serious problem nation-wide. The current legislation limits a sentence for conviction of murder to a maximum of three (3) years imprisonment when a man is found guilty of killing his wife or female dependent due to suspicion that they have committed adultery.

    However, the Special Rapporteur (2018) reports that “Iraq lacks proper legislation to prevent and punish honour killings because Article 409 Penal Code permits “honour” as mitigation for crimes of violence committed against family members.”24 Within this report, the United Nation Assistance Mission for Iraq (UNAMI) reported that “several hundred women die each year from honour killings, with some families reportedly arranging honour killings to appear as suicides.”

    The Applicant confirms this reality in her statutory declaration, dated 12 Dec 2019, asserting that “the police would not help me, they would think that it was [Brother B] and [Brother G]’s right to kill my sister to protect the family’s honour. In Iraq it is not like it is [in Australia], police do not protect you”.

    The Applicant absenting her sister from any record is in line with the ingrained/accepted nature of ‘honour killings’ in Iraq, the perception that local authorities will not help or intervene, and the shameful, renouncing, and disowning characteristics of the horrific act, whereby a person is deemed to have brought such shame to their family that they no longer deserve to exist. Unlearning culturally accepted practices is extremely difficult, even in instances where you do not agree with what has happened.

    Furthermore, the significant trauma induced by witnessing her sister’s horrific murder culminated in the Applicant’s development of depression and PTSD, as provided by her treating medical practitioner, [Dr V]: “[the applicant] suffers from significant post-traumatic stress disorder with subsequent anxiety and depression as a result of the terrible trauma she witnessed and experiences prior to arrival in Australia. She is undergoing long term psychological and pharmaceutical treatment for these conditions”.

    It is also extremely important to note that [Dr T] states in her Psychological Report that, “[The applicant] described her sister’s death in too much detail for it to be likely to be false given her lack of education. It is unlikely that she could know how gas might be used to sedate or asphyxiate someone”.
    …

    The Applicant explains in her statutory declaration, dated 12 December 2019, that “I could not depend on my half-brothers from my mother’s side to protect me because I did not live with them and did not even know them…[I] did not have any relationship with them”.

    She poignantly questions in her statutory declaration, “How can I expect protection from them when I don’t even know them?”. Indeed, how can we competently assess the ‘protection of a male relative’ to be fulfilled by a person/s that the Applicant does not have a meaningful relationship with, irrespective of blood ties.

    We duly submit, that the absence of some of the Applicant’s siblings is a “semantic misunderstanding” and would not have prevented the delegate from granting her a subclass 204 visa because she is a “woman at risk; she has immediate legal and physical protection needs and she has not foreseeable alternative durable solution”.

    Compliance with Woman at Risk Visa Conditions
    …
    Country information continues to support the gendered violence that the Applicant originally fled. The DFAT 2020 holds that:

    “Gender-based violence is common in Iraq, and human rights observers report that domestic violence remains a pervasive problem throughout Iraqi society. According to the UN Population Fund, 46 per cent of married Iraqi women have been exposed to at least one form of spousal violence. Efforts to prosecute perpetrators are hampered by a lack of trained police and judicial personnel, while legal personnel who seek to pursue domestic violence cases are reportedly likely to be subject to harassment. A lack of applicable legislation also presents problems: although Article 29 (4) of the Constitution specifically prohibits all forms of violence and abuse in the family, Article 41 of the Criminal Code stipulates that men may discipline their wives and children ‘within certain limits prescribed by law or by custom’.”

    It further provides that:

    “So-called ‘honour killings’ remain a serious problem nationwide. A provision of the Criminal Code limits a sentence for conviction of murder to a maximum of three years’ imprisonment if a man is on trial for killing his wife, girlfriend, or a female dependant due to suspicion the victim had been committing adultery or having sex outside of marriage. UNAMI has reported several hundred women die each year from honour killings, with some families reportedly arranging honour killings to appear as suicides”.

    There is also no ability for the Applicant to subsist permanently in Iraq, as indicated by the UN publication ‘Women’s Human Rights Violations in Iraq’ 2015:

    “Unfortunately, in central and southern Iraq it is against public policy for Iraqi NGOs to provide shelter to women escaping domestic violence, attempted honor killings, trafficking or other forms of gender-based violence. Consequently, NGO-run shelters and their service providers are not only vulnerable to police raids; they also lack protection from threats of violence by extremist groups”.

    This reality is corroborated by DFAT 2020:

    “There is no law at the federal level criminalising domestic violence and attempts to pass such a law have been stymied by opposition from conservative political parties and religious groups. Human rights observers have noted the draft anti-domestic violence law currently being considered by parliament fails to address significant problems, including enabling NGOs to run women’s shelters and repealing Article 41 of the Criminal Code. The draft law also contains problematic provisions, including a preference for families to address violence through ‘reconciliation committees’ rather than through prosecution, which means in practice affected women would likely be returned to their abuser.
    In most areas, there are few or no publicly provided women’s shelters, information services or support hotlines, and little or no sensitivity training for police. While NGOs are not explicitly prohibited from running shelters for victims of gender-based crimes, national law allows the Ministry of Labour and Social Affairs to determine if shelters remain open. NGOs report communities often view shelters as brothels and either ask the government to close them or occasionally attack them. To appease community concerns, authorities often close shelters, only to allow them to reopen in another location later. NGOs operating unofficial shelters face legal penalties for operating them without a license. In the absence of shelters, authorities often detain or imprison sexual harassment victims for their own protection. Some victims, without alternatives, reportedly become homeless”.

    In engaging in an ‘active intellectual process’, we submit that the Applicant half-brother do not represent viable male protection options for the Applicant and that the death threat from her paternal half-brothers trump any viability of her permanent return to Iraq. Furthermore, we submit that the Applicant was not in a relationship at the time she made her visa application, only seeing [Mr E] as a potential husband in October 2014 when she returned to Iraq to see her ill mother.

    iii) Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

    The Visa Cancellation Officer stated that the Applicant’s travel back to Iraq undermined her fear of harm in that country. We submit that this assertion is erroneous and goes against international laws protecting religious freedom and the fundamental right to family as the Applicant returned to Iraq to visit her ill mother and subsequently participate in religious funeral rites.
    …

    a) Fear of harm and the Applicant’s return travel to Iraq

    The Departmental movement records of the Applicant show that since the grant of her visa, she travelled from Australia to Iraq on two (2) occasions:

    1. On the first occasion, the Applicant departed Australia [in] October 2014 and returned [in] January 2015, a period of 80 days (2 months and 5 days).

    2. On the second occasion, the Applicant departed Australia [in] January 2017 and returned [in] May 2017, a period of 112 days (3 months and 23 days).

    An excerpt of the Cancellation decision confirms that Department Records show that the Applicant approached the Department on two occasions prior to her return travels and was given permission to travel back to that country:

    1. advised on 20 October 2014 that there were no conditions on her visa, and she could travel freely.

    2. 11 February 2016 the visa holder again called the Department and was advised that there were no travel restrictions on her visa, however cautioned her on the implications of travelling to the country from which she sought protection.

    …
    Travelling on a Protection Visa
    The Migration Amendment (Permanent Protection Visas) Regulation 2013 inserted condition 8559 into the Migration Regulations on 3 June 2013. Condition 8559 is a mandatory condition that applies to all permanent protection visas (PPV) granted on or after 3 June 2013, regardless of when the application was made.

    The Applicant’s Woman at Risk Visa was not subject to the 8559 condition because her visa was granted on 23 July 2012 – before condition 8559 became imposed upon protection visas. Despite the absence of this condition, the Applicant still specifically asked the Department whether she could travel to Iraq and was given permission, indicative of the Applicant’s respect for the authority of the Department of Immigration, and her express need to safeguard her protection status, even though she was not legally bound to –there is no evidence that she was warned of any implications.

    The Applicant explains, as per her statutory declaration:

    • “[from October 2014 – January 2015] I visited Iraq because my mother was very sick. I got permission from the Department before travelled. I call them and tell them I need to travel because my mother was very sick and they gave me permission”

    • “The second time I visited Iraq was [from January 2017 – May 2017]. My mother had passed away and I could not take it if I could not attend her funeral. Again I call the Department to ask permission to travel and they gave me permission to travel to Iraq. I am the eldest daughter (after my sister [Sister U] was killed) and in our culture, the eldest daughter must attend the funeral because I have to wash the body and prepare the body for burial.”

    • “Even when I was in Iraq and staying with my [now] husband, I did not leave the house because I was scared that someone might recognise me and tell [Brother B] and [Brother G] I am in the country”.

    …
    In assessing the “individual circumstances” and the “precise claims” which were made in the current Applicant’s protection visa, she stated on her application (as scribed with assistance):

    “I was threatened to be killed by my family [Brother B] and [Brother G]] because I was enforced to get married to an old man, but I refused such marriage therefore I was beaten and threatened by killing”.

    The Applicant explains her fear more fully in her statutory declaration, dated 12 December 2019:

    “[Brother B] and [Brother G] were threatening to kill me when I refused to marry a man who was [Brother B]’s friend. This was an old man; was already married and already had children and I did not want to accept his proposal. When I refuse to accept the proposal, my half-brothers tortured me by hitting me, stabbing my hands, and burning me with hot knives and they threatened to kill me. I still have the scars from when they tortured me”.  “They told me they were going to kill me like they killed my sister. I have to escape or I would be killed too”.

    Knowing her social reality, the Applicant did not travel back to Iraq until it was of the upmost importance: to see her sick mother, and then to perform religious rituals at her mother’s burial. When she did travel back, she travelled secretly and stayed hidden in Baghdad at her [Relative 1]’s, to ensure that her brothers, who reside in Samawah, Iraq, would not know she was there. Her fear was/is based on her brother’s finding her – sustained living in Iraq was/is therefore not possible for her, however, the compelling nature of her mother’s sickness and subsequent death, obligated the Applicant to make two secret and transient trips.

    The Applicant explains in her statutory declaration, dated 12 December 2019:
    “I make secret trips to Iraq in 2011 because my mother was very sick then. She was with my [Relative 1] in Baghdad which allowed me to visit them in secret because my half-brothers lived in Samawah which is far enough from Baghdad that I could make the secret [transient] visit”.

    In the Applicant’s Psychology Report, [Dr T] explains that the Applicant’s travel back to Iraq does not diminish her fear of harm:“[the Applicant] was alone [in Australia], with no family at all and the one person she loved and who loved her was her mother. I am of the view that this was sufficient to cause her to take the risk of returning”.

    [Dr T] further espouses in her psychological report of the Applicant that:

    “I do not regard her return visits to indicate that [the applicant] believed that the threat was not real. On all occasions it was done with the highest possible levels of secrecy and not to the areas of country near her half-brothers. Each time, the visits were to see her mother who was ill, and on the last occasion to bury her mother”. She further points out, “there is no way of knowing if her half-brothers from her father’s second marriage knew [or could know] she was in the country…
    her visit to her mother from Australia in 2014 turned out to be the last time she would ever see her mother again and it is understandable that she would want to maximise the time they had despite the risks”.

    … we submit that the Applicant’s travel back to Iraq on both occasions does not diminish the very real fear of harm posed by her half-brothers. Sustained and ordinary living in Iraq is not achievable for the Applicant.  We submit that her travel back to Iraq is not indicative of her ability to permanently subsist and does not detract from her fear of harm. Her visits were compellable, transient, and steeped in secret and hiding – in other words, staying permanently in Iraq is not a viable option due to genuine fear of harm. Sustained and ordinary living in Iraq is not achievable for the Applicant. Her visits were compellable, transient, and steeped in secret and hiding – in other words, staying permanently in Iraq is not a viable option due to genuine fear of significant harm.

    We submit that the Applicant’s return to Iraq was compellable as a result of her mother being unwell and her religious obligations to attend the burial – both human rights.
    …
    The Applicant’s mother died at 11pm [in] January 2017. Subsequently, the Applicant left Australia [in] January 2017 for Iraq to attend her religious, cultural and familial responsibilities relating to her mother’s burial. According to the death certificate, the death was caused by a myocardial infarction, commonly known as a heart attack, in connection to diabetes diagnosis.

    There are four (4) obligations that living Muslims must perform for their dead:

    1. Washing – ghusl

    2. Shroud – Kafn

    3. Prayer – Salah

    4. Burial – Dafn

    [Dr T] adds to our understanding that the Applicant was religiously and lovingly compelled to return to Iraq in her Psychological Report, dated 4 Dec 2019:

    • “the responsibilities in that culture of the eldest living daughter are a key factor in her decisions, but so too is the love she would have had for her mother”

    • “cultural and religious duties for the funeral and afterwards would have been a powerful motive for her to return”.

    • “after her mother’s death it was her responsibility to wash the body and prepare it for burial and estimated a week her visit to Iraq from Australia in 2017 was taken up by this. In the 

    •     cultural tradition, a forty-day period must lapse before a second ritual is held where a wider circle of associates of the deceased come together to mark the passing of the dead person”.

    Consequently, we submit that the Applicant return to Iraq was compellable and allowable as per her right to manifest her religion and is accordance to the fundamental nature of the family unit and its protection by the State.

    b) Consequence of cancelling the Applicant’s visa in light of the ‘correct information’

    …
    This is supported by Trivedi v MIBP [2014] FCAF 42, in which J Buchanan made the following statement about the operation of PIC4020: “It is apparent from the terms of PIC 4020 that it is addressed (to) the problem of attempts to work a fraud or deception on the assessment of claims for a visa…..I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.”

    The Applicant leaving out some family members and not remembering their birthdays can be construed as an “innocent, unintended, or accidental matter” as a result of her significant PTSD, illiteracy and vulnerable status.

    We submit that the Applicant does have a well-founded fear of persecution and was rightly recognised as a refugee/woman at risk by the UNHRC, as per our ‘active intellectual’ engagement with the material facts. Her status being cancelled is therefore an arbitrary measure that significantly undermines her right to freedom from violence and the fear of harm her paternal half-brothers represent.

    Tribunal Hearing

1. The Tribunal invited the applicant to a hearing scheduled for 20 May 2021. Initially she responded in writing that she and her Agent would attend the scheduled hearing.  However on 14 May 2021 the applicant wrote to the Tribunal waiving her right to a hearing and requesting a decision be made on the papers available to the Tribunal.

   Information request to the applicant.

2. On 17 May 2021 the Tribunal wrote to the applicant requesting her written responses to several specified questions.

3. On 31 May 2021 the applicant provided the following written response in a Statutory Declaration dated 31 May 2021:

   The staff of the office of UNHRC helped me with to complete my subclass [204] visa in Damascus. They filled out my application for me from start to finish. I was then required to sign the application. An interpreter was used. I don't recall the name of the person that completed the form on my behalf.

   I recall having approximately 4 registration interviews in total with UNHRC in Damascus. The interviews occurred every three months and each time I had a different staff member interviewing me. I don't recall the names of all the staff that interviewed me. The interviews took around 1 to 1 and a half hours each. I do recall having one of the interview via telecom with UNHCR where an interpreter was used. All the other interviews were conducted by staff from the UNHRC, Damascus who spoke Syrian, Arabic. However, I had some difficulty understanding the staff during the interviews as they didn't speak to me in my Iraqi, Arabic language.

   I recall having an RSD interview with a staff member from UNHRC in Damascus to discuss my refugee status in Syria. I don't recall having an interpreter as the staff member was Syrian, Arabic who conducted the interview with me in Syrian Arabic.

   I don't recall having resettlement interview with UNHCR in Damascus.

   While I waited to come to Australia I resided in a rental property in [Syria]. I was supported financially by both the UNHCR in Damascus and my mother. The UNHRC helped me with approximately 5000 to 6000 Lira (Syrian dollars) each month. The money was transferred into my personal bank account back in Syria. The UNHRC also assisted me with food necessities each month such as wheat, bread, rice, lentils, milk etc. I would receive a message each month to go down to the UNHCR in Damascus to collect my items. My mother helped with approximately $300 to $400 (US dollars) each month.

   [Mr E] resided in [City 1] in Syria. [Mr E] was living in Syria at the same time I was there because I believe he liked the work opportunities in Syria and felt more safer and comfortable in Syria than Iraq.

   In Syria, [Mr E] worked in a laundry place (responsible for dry cleaning clothes etc.). In Iraq, he worked as a as a taxi driver.

   I left Australia [in] October 2014. I was very fearful to return back home because of my brothers. I was afraid that they would kill me if they knew that I was in Iraq. I therefore had to no choice but to travel back to Iraq in secret as my mother was very ill and had a stroke on her left side (hand and leg). I lived in secret daily for the whole time I was in Iraq in order to protect myself from my brothers who lived approximately 6 hours from me at the time. However, I knew that living in fear permanently was not a viable option for me. When I returned to Iraq, I resided at my [Relative 1]'s residence at [Address 1] in Baghdad.

   For 3.5 months, I was responsible for looking after my mother. As the eldest daughter it was an religious/cultural expectation that the eldest sibling take the lead in caring for his or hers parents. I therefore was required and took it upon myself to carry the role as the main domestic carer which included showering my mother, cooking for her and feeding her, giving her daily medication and did all other house duties as required. I resided at my [Relative 1]'s residence at [Address 1] in Baghdad during this whole time as this is where my mother was also residing. I avoided my brothers during the 3.5 months. I never left my [Relative 1]'s residence only for when I was required to take her to the doctor. The remainder of the time I isolated myself in the home caring for my mother.

   During this time I also became engaged to [Mr E].

   I stayed at [Relative 1] house in Baghdad, Iraq where my mother was residing at the time. My [Relative 1] [lived] in Baghdad in [Address 1]. She now lives in [a named location] which is approximately 5 hours drive from Baghdad, Iraq. My [Relative 1] was unable to provide a statutory declaration because she is elderly ([age] years of age), on medications and has COVID-19.

   … [Mr E] lived in Baghdad, "[specified location]". He currently still lives there now and returned to working as a Taxi Driver.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. The Tribunal notes that for cancellation cases, the existence of facts grounds the exercise of the statutory power. The onus of establishing those facts is therefore on the Minister, or on review, the Tribunal.[1] Although the applicant must be invited to show that the ground does not exist, or if it does, to show cause why the discretion to cancel should not be exercised, this does not place an onus on the applicant to establish that the visa should not be cancelled.[2]  Furthermore, in the context of s.109, in deciding whether the ground for cancellation is made out it would be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[3]

   [1] See e.g. Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].

   [2] See e.g. Zhao v MIMA [2000] FCA 1235 at [25] and [32].

   [3] See e.g. Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16].

6. 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.

7. 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?

8. 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 by the applicant with s.101(b) of the Act in the following respects:

   -Her responses to question 2 of the subclass 204 visa application in which she stated ‘no’ as to whether she then had more than one partner and ‘no’ to being in any form of relationship.

   -Her response to question 8 of the subclass 204 visa application in which she stated ‘no’ as to whether she had been previously legally married, in a de facto relationship or in a customary/traditional/ religious marriage that is not legally recognised.

   -Her response to question 25 of the subclass 204 visa application in which she stated ‘Iraq’ as the name of the country she had a fear of returning to.

   -Her response to question 29 of the subclass 204 visa application in which she stated she was threatened to be killed by her family because she was forced to get married to an old man but refused, so that she was beaten and threatened by killing and ran away to her [Relative 1] in Baghdad then to Syria.

   -Her response to question 30 of the subclass 204 visa application in which she stated her family will kill her because she refused to marry an old man.

   -Her response to question 31 of the subclass 204 visa application in which she stated the authorities are unable to protect her against her family and she could be slaughtered by her family.

9. The Tribunal notes that the applicant’s response to question 8 of the subclass 204 visa application, in which she ticked ‘no’ as to whether she had been previously legally married, in a de facto relationship or in a customary/traditional/ religious marriage that is not legally recognised, is obviously a typographical error in that the applicant had clearly stated in the visa application form that she was divorced and had also provided details of the place and time of her divorce.  Given the applicant provided correct information that she had been previously married then divorced the Tribunal is not satisfied she has provided incorrect information regarding this issue in her visa application

   Mental Health and Capacity

10. The applicant has presented numerous medical reports regarding her poor mental health.  She has been diagnosed with chronic Major Depressive Disorder and is taking a number of medications for her mental health.  The reports reference the chronic nature of the applicant’s illness and her difficulties with interpersonal skills.

11. The applicant’s close friends and associates have provided evidence that the applicant has difficulty with comprehension and that she has a tendency to agree to things put to her without actually understanding them.  She also struggles with language in that she is accustomed to Arabic in her particular dialect and cannot fully understand it otherwise.  She also received less than four years of primary education and is illiterate.  The Tribunal accepts this evidence as it is borne out by the information provided in her visa and UNHCR applications as well as the expert evidence submitted by the applicant’s agent.

12. The Tribunal therefore accepts that the applicant has reduced capacity to comprehend and to provide meaningful responses.

    Inconsistent Information in the applicant’s subclass 204 Visa application and her husband’s Sponsored Partner visa application.

13. As acknowledged by the applicant the information provided in her husband’s Sponsored Partner visa application was significantly inconsistent with the information she provided in her subclass 204 visa application, with regard to the development of her relationship with her husband, and her family dynamics.

14. The applicant argues that the information in the Sponsored Partner visa application, detailing the development of her relationship with her husband, was false and fabricated without her knowledge or permission by her then Agent.  The applicant maintains that the relevant information she provided in her subclass 204 visa was correct.  The applicant also argues that her former Agent incorrectly set out details of her half-siblings.

15. The applicant explains [Mr E]’s movements to Syria, largely matching her own, by reference to his occupation as a taxi driver, whose services were routinely used by her mother and her so that he became a frequent driver for them both. The Tribunal further notes that the use of taxis to take people across borders in the Middle East, such as in Iraq and Syria, was likely not uncommon given the low cost of taxis and their availability.[4]

    [4] See e.g. Taxis. Middle East - Lonely Planet

16. In the Tribunal’s view the details of the applicant and her husband’s relationship, as put forward in the Sponsored Partner visa application, contained highly doubtful statements.  For example the statement that she and [Mr E] fell in love instantly during a taxi ride, while not impossible, has a relatively low degree of likelihood.  The Tribunal has also not sighted photographic support or any other evidentiary support for the statements in that application that all the applicant’s family, beyond her mother and a maternal half-brother, were very supportive of the relationship and attended the applicant’s engagement.

17. If the information in the Sponsored Partner visa application is taken to be correct, it would mean that the applicant and [Mr E] were in an intimate relationship and traveling and or living together in Syria without being married or even engaged.  Given the pervasive cultural norms in both Syria and Iraq at the time this would seem close to impossible to do, or at least to maintain, without encountering substantial adverse notoriety and societal antagonism, in circumstances where they would be highly reliant upon their community for their survival.  The Tribunal therefore considers it highly unlikely that the couple were a couple prior to their engagement in 2014.

18. The evidence regarding the malpractice by the Agent who helped prepare the applicant’s information in the Sponsored Partner visa application is persuasive that the information is not reliable. The unreliability of the information is further compounded by the accepted evidence of the applicant’s language difficulties and reduced capacity for comprehension.

19. Therefore, with respect to the information in the Sponsored Partner visa application, regarding the development of the applicant’s relationship with [Mr E], the Tribunal is of the view that it is very unlikely to be correct.  The Tribunal is therefore not satisfied that the information is correct. 

20. The applicant has explained that she and [Mr E] met through his work as a taxi driver and her family’s retention of his driving services leading to him driving her to and from Syria.  She stated that that their relationship developed after she returned to Iraq for her mother’s illness in 2014.  The Tribunal notes that these statements are not directly controverted by other available accepted evidence.  Her explanations are readily plausible and coherent.  The Tribunal therefore accepts that at the time the applicant applied for the subclass 204 visa she was not in a relationship with [Mr E].

21. In view of the above the Tribunal is not satisfied that the applicant provided incorrect information regarding being a single woman and not in a relationship, in her subclass 204 visa application.

    The applicant’s returns to Iraq

22. The applicant has confirmed that she returned to Iraq in 2014 for approximately 2.5 months and in 2017 for almost 5 months.  She has stated that she did so on the first occasion because of her mother’s serious illness and on the second occasion for her mother’s funeral and associated rituals.  She has submitted a copy of her mother’s Death Certificate.

23. The Tribunal notes that the family members the applicant feared were half-siblings on her father’s side. The Tribunal accepts they were and are part of a household separate from the applicant’s mother and are located in a different city. The Tribunal notes that Samawah, the city in which the applicant’s paternal half-brothers live, is in Muthanna province, not Thi Qar or Baghdad province.  As such they would not necessarily know of or be interested in the applicant’s mother’s health and events or developments concerning the applicant’s mother.

24. If the applicant’s mother was based in Baghdad to receive treatment while she was seriously ill in 2014 the Tribunal accepts that this would be where the applicant would stay on her first return to Iraq, and that she would be preoccupied with the care of her mother.  The Tribunal notes that the applicant’s now husband is based in Baghdad and that in 2014 the couple became engaged.  This lends further support to the applicant’s statement she remained in Baghdad during this visit.  The Tribunal therefore accepts the likelihood that the applicant remained in Baghdad and did not return to Thi Qar province during her 2014 visit to Iraq.  The Tribunal accepts that the nature of this visit was exceptionally compelling given her mother’s illness and that the applicant’s intentions and the reason for the visit were disclosed to the Department beforehand.  The Tribunal accepts that the circumstances of the visit, namely a relatively brief one with the applicant remaining in Baghdad with her mother and [Relative 1], were such as to significantly minimise the risk her paternal half-siblings would be aware of her return and take steps to harm her.

25. The applicant has stated that it was her maternal half-brother, [Brother C], who was present at her engagement not any of her paternal half-brothers. The applicant’s marriage contract confirms her evidence that her maternal half-brother was involved in her marriage arrangements with her husband.  The Tribunal accepts the engagement took place in Baghdad where [Mr E] lives. The Tribunal is not satisfied that the applicant’s engagement in Baghdad, attended by her maternal half-brother, mother, and [Mr E]’s family establishes that she did not hold a fear of her paternal half-brothers as claimed.

26. The Tribunal is therefore not satisfied that the applicant’s return to Iraq in 2014 means she provided incorrect information in her Protection visa application regarding her fears of her paternal half-brothers.

27. The applicant’s return to Iraq in 2017 was for her mother’s funeral and 40 day rituals and to spend some time with her husband in Baghdad. The applicant has not stated where her mother’s burial took place.  The applicant’s mother’s death certificate records her place of death as Nasiriya in Thi Qar.  The applicant’s mother’s home was also in Nasiriya in the [specified] district.  The Tribunal therefore assumes that the applicant’s mother’s burial took place in Nasiriya and that this would be where the applicant was for a week or so, for the burial. The Tribunal accepts that she otherwise stayed in Baghdad with her [Relative 1] and husband given they both lived in Baghdad and were the closest people to her.

28. According to available maps Nasiriya is about 120 kilometres from Samawah where the applicant’s paternal half-brothers live.  The Tribunal accepts that a brief stay in Nasiriya for the burial of her mother offered little chance for her paternal half-brothers to learn of her presence and take action against her.  Further, there was a highly compelling personal reason for the applicant to return to Iraq in 2017.  In the circumstances the Tribunal is not satisfied that the applicant’s return to Iraq in 2017 establishes that she did not posses the claimed fear of her half-brothers as described to the UNHCR and in her subclass 204 visa application.

29. The Tribunal notes that following her mother’s death the applicant has not again travelled to Iraq.

    Half-Siblings

30. The department delegate considered that the inconsistencies in the names and number of the applicant’s half siblings also indicated she provide incorrect information in her visa application regarding her claimed fear of her paternal half-brothers.

31. The applicant has stated that she believed she provided the names of all her half-siblings during her UNHCR registration, however for reasons she does not know some of them were not included in her visa application.

32. The Tribunal considers there is a likelihood the omissions in the visa application are attributable to the person who completed the application for the applicant, in view of her lack of any English and given there is no perceivable advantage to the applicant in omitting the names of some of her half-siblings.  The applicant has stated that a UNHCR officer filled in the visa application form for her.  The applicant’s UNHCR Resettlement form lists six of the applicant’s half siblings and notes that they are from both her father’s and mother’s side.  Despite the UNHCR holding this information it was not transferred completely to the visa application by the UNHCR, for reasons unknown.  The Tribunal notes that the UNHCR Damascus operation was dealing with huge numbers of Iraqi refugees, in the hundreds of thousands, in the period the applicant fled Iraq to Syria,[5] plus the start of the uprising in Syria.  The Tribunal considers that the accuracy of the data recording and transferring processes in the UNHCR Damascus office could readily have been compromised by these factors outside of the UNHCR’s control, and compounded further by the applicant’s dialect difficulties. The Tribunal accepts that the applicant’s lack of any English language skills would impact her ability to be aware that some details in her visa application may not have been transcribed accurately. 

    [5] See e.g. UNHCR Syria, Background, August 2010,

1. With appropriate interpreting and time to give instructions the applicant has maintained that she has five half-siblings on her father’s side and three on her mother’s side.  She has named each of them and given estimates for their years of birth.

2. The applicant’s subclass 204 visa application includes the names of just three half-siblings. However these are from her father’s side and include the two paternal half-brothers she claimed to fear harm from. It is also noted on the form that they are ‘half-siblings’. 

3. In view of the above the Tribunal does not consider that the omission of some of her other half-siblings in her visa application establishes that the applicant did not hold the claimed fear of her paternal half-brothers.

   Conclusion on non-compliance

4. On the basis of the above findings, reasons and evidence the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Melissa McAdam
   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.