2012904 (Refugee)

2012904 (Refugee) [2021] AATA 2130 (21 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012904
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Michael Hawkins AM
DATE OF ORAL DECISION:  21 April 2021
TIME OF ORAL DECISION:   11:11am (QLD time)
DATE OF WRITTEN STATEMENT:         6 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 May 2021 at 1:40pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – Federal Circuit Court remittal – incorrect information in application – bogus document – core protection claims fabricated to obtain a protection visa – religion – Christian convert – Iranian citizenship by marriage – applicant ten years older than originally claimed – estranged husband – no family or male support – victim of domestic violence – risk of honour killing – contradictory and inconsistent evidence – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 438
Migration Regulations 1994 (Cth), r 2.41
CASES
MHA v CSH18 (2018) FCAFC80
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (“the Act”).
The delegate cancelled the visa on the basis that the visa holder did not comply with section 101(b) of the Act by stating she is an Afghan minor who would be persecuted in Afghanistan. The delegate found the visa holder was not a minor; that the incidents described regarding the Taliban commander are not true and that she is an Iranian citizen and was so at the time of arrival in Australia and at the time she applied for the Protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The delegate’s decision was affected by a principle subsequently upheld by the full Federal Court of Australia on 28 May 2019 in the matter of MHA v CSH18[1]. This related to whether the Tribunal had the power to affirm a decision of a delegate of the Minister who was not properly delegated to make the decision at hand.
[1] (2018) FCAFC80
In the decision of MHA v CSH18, the Court found that the Tribunal did have the power to affirm a decision to cancel a visa made by a person without delegation. The First Tribunal wrote to the applicant on 30 October 2019 putting to her the Court’s decision and seeking her response.
The applicant responded, through her adviser, that it was their view that the Tribunal has no power to do anything other than remit the decision back to the Department for a decision by a properly delegated decision maker.
The First Tribunal considered this submission and formed the view that, in line with the decision of the full Federal Court of Australia in MHA v CSH18, the decision made by the delegate was a decision that was reviewable by the Tribunal, which had the power to set aside or affirm the decision. As such the First Tribunal proceeded to review.
The applicant appeared before the First Tribunal on 31 January 2020 to give evidence and present arguments. The First Tribunal also received oral evidence from friends of the applicant.
The First Tribunal affirmed the delegate’s decision on 19 February 2020.
The decision of the First Tribunal was set aside by the Federal Circuit Court [in] August 2020. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 21 April 2021 to give evidence and present arguments. The Tribunal also received a written statement from [Ms A] prior to the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 21 April 2021. The following are the reasons for that decision.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation. 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?
What were the particulars of the non-compliance set out in the notice?
On 13 December 2016, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (“NOICC”) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:
I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:
·This provision relevantly provides that “a non-citizen must fill in his or her application form in such a way that…no incorrect answers are given.”
By operation of s99 of the Act, 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.
[In] May 2011 you arrived in Australia by boat as an Irregular Maritime Arrival and you stated you are [applicant name], born on [date] in Afghanistan. At time of arrival you claimed you were [age] years of age and therefore considered a minor.
As part of the Refugee Status Assessment (RSA) you lodged a Statement of claims dated 3 June 2011 in which you stated in part:
“I am a citizen of Afghanistan and I do not have a right to citizenship or a right to reside in any other country.
I am Qezelbash and my religion is Muslim Shi’a.
I was born on [date] in [Kabul] Afghanistan. I fear returning to Afghanistan.
When I left Afghanistan the first time I was only very young…the war and fighting was very severe and so my father took our family to Iran where we lived from 2002-2008. Whilst we were living there we were there illegally. We did not have any documents…we did not have the right to live there and many Afghans were being deported…my father decided it was better to leave before we were put into a refugee camp and deported. He decided it was better to leave Iran voluntarily. We went back to Afghanistan and lived in the same area as we were living before.
We lived there up until approximately 1 year ago. I was going to school and the Commander from the area noticed that I was attending school. That commander was a commander from Taliban…he came to my family and proposed to my father that he could provide whatever they wanted…but in return my father had to give my hand in marriage. They were Talib and Sunni and we are Shi’a so my father refused…they threatened to kill the whole family…”
In summary you stated as follows;
·The threats continued and were frequent
·One day two people kidnapped you and took you to a house where you were beaten by them
·The commander came and he raped you
·They kept you there for three nights and when you were released you were told that your father would now give you to the commander without hesitation as you are dishonoured.
·Once home your parents took you to hospital
·Your parents were still threatened but your father continued to refuse the commander.
·Your father feared that they would kidnap you again or even kidnap your brothers so he sold the house and you all fled to Pakistan
·While in Peshawar your father was told that the commander was still searching for you all and had threatened to find you wherever you were.
·Your father was still afraid for your safety and organised a person to take you to Karachi. You stay there for one week then the smuggler took you to [Country 1]. You eventually arrived by boat to Australia.
·You fear you will be killed if you go back to Afghanistan. You fear the commander. You also fear that you will be isolated and ostracised by the community in Afghanistan if they were to find out what happened to you. You would be unable to live a normal life.
·Going to Afghanistan from a western country is dangerous especially for a single young woman
·You believe you may be killed by the Taliban because you are Shi’a and also by the commander who threatened you
·The authorities in Afghanistan do not protect and they have no control over the Taliban. Your father did not go to the police when you were kidnapped and raped because of the dignity and honour of the family. He was also afraid of the commander finding out.
·You are unable to relocate to another area of Afghanistan because you would be found by the commander. The Taliban are everywhere and are powerful. You were afraid that they would find you in Pakistan and take you back to Afghanistan.
You completed Part C of Form 866 Application for a Protection (Class XA) visa. You answered the following questions in part;
At question 1 which asks What is your full name? you answered, “[applicant name]”.
At question 4 which asks, What other names have you been known by? (such as name before marriage, previous married name, alias) you answered, “NIL”.
At question 7 which asks, Date of birth you answered, “[date] – [age] years”
At question 14 which asks, Your relationship status you ticked the box Never married or been in a de facto relationship.
At question 20 which asks, Your current citizenship (if different to at birth) you answered
“N/A”.
At question 21 which asks, Do you hold any other citizenship or are you a national of any other country? You answered “No”.
At question 22 which asks, Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence? You answered “No”.
At question 41 which asks, I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries) you answered “Afghanistan”.
At question 42 which asks, Why did you leave that country? You answered “See statement attached to RSA application”.
At question 43 which asks, What do you fear may happen to you if you go back to that country? You answered “See statement attached to RSA application”.
At question 44 which asks, Who do you think may harm/mistreat you if you go back? You answered “See statement attached to RSA application”.
At question 45 which asks, Why do you think this will happen to you if you go back? You answered “See statement attached to RSA application”.
At question 46 which asks, Do you think the authorities of that country can and will protect you if you go back? If not, why not? You answered “See statement attached to RSA application”.
As part of the Protection visa process you completed a Form 80 Personal Particulars for character assessment in which you stated in part;
Question 1 which asks for name at birth details:
Family name:    [applicant family name]
Given names:    [applicant given name]
Question 3 which asks other names you are, or have been, known by: N/A
Question 5 which asks for date of birth: [date]
Question 6 which asks for your place of birth: [Kabul], Afghanistan
Question 7 which asks for relationship status: Never married or been in a de facto relationship Question 8 which asks for current citizenship?     Afghanistan Question 9 which asks how was your citizenship acquired? Birth
You answered “Nil” to the following questions on the form 80;
·Details of the applicant’s FAMILY LIVING IN AUSTRALIA but not included in this application (already living in community i.e. son/daughter)
·Details of the applicants OTHER FAMILY MEMBERS who arrived with you in Australia but not included in application (sister/brother)
You answered as follows for the question which asks for Details of the applicants OTHER FAMILY MEMBERS who are NOT in Australia (ie. Sister/brother/parents);
Family name:    [applicant family name]
Given names:    [Given Name 1]
Sex: M
DOB: [age] yrs
Place & Country of birth: Kabul Afghanistan
Citizenship: Afghani
Marital status:   M
Relationship to applicant: Father
Current residence:       Pakistan
Family name:    [applicant family name]
Given names:    [Given Name 2]
Sex: F
DOB: [age] yrs
Place & Country of birth: Kabul Afghanistan
Citizenship: Afghani
Marital status:   M
Relationship to applicant: Mother
Current residence: Pakistan
Family name:    [applicant family name]
Given names:    [Given Name 3]
Sex: M
DOB: [age] yrs
Place & Country of birth: Kabul Afghanistan
Citizenship: Afghani
Marital status:   M
Relationship to applicant: Brother
Current residence: Pakistan
Family name:    [applicant family name]
Given names:    [Given Name 4]
Sex: M
DOB: [age] yrs
Place & Country of birth: Kabul Afghanistan
Citizenship: Afghani
Marital status:   NM
Relationship to applicant: Brother
Current residence: Pakistan
The delegate assessing your claims for Protection stated in the Protection Obligations Evaluation Outcome dated 8 July 2011 stated as follows;
·I find that the claimant would not be subject to persecution due to her religious beliefs
·The claimant has previously been residing in Iran for an extended period of time and later Pakistan briefly where her family is residing. If the claimant was to return to Afghanistan I am not satisfied the claimant could be identified as having lived in a Western country.
·The claimant is fearful of returning to Afghanistan as she fears harm from the Taliban Commander who raped her and has attempted to marry her. I have already found that there is no Convention nexus for this claim
·The claimant is also fearful for returning to Afghanistan because she will be unable to survive in the Afghan community because she has been raped. She fears the Afghan community will ostracise her and she will be unable to work or marry. As country information suggests…the claimant may face serious discrimination due to being sexually assaulted. I find that there is a real chance that the claimant will face serious discrimination due to being raped.
·After considering the claimant’s evidence, I am satisfied that the essential and significant reason the claimant fears persecution for her membership of a particular social group.
The department found, based on the information you provided, that you are a refugee within the meaning of the Refugees Convention and relevant provisions of the Migration Act and you are a person to whom Australia owes protection obligations, you were granted a Protection visa on 3 August 2011.
On 2 September 2011 your parents [Mr B, comprising Given Name 1 and applicant family name] and [Ms B, comprising Given Name 2 and applicant family name] and youngest brother [Mr C, comprising Given Name 4 and applicant family name] lodged an application under the Refugee and Humanitarian visa program (under the Split Family provisions) with you as the proposer. You did not include your older brother who you said was married. You told the department at a later date that he had returned to live in Afghanistan with his family from March 2013. You then told the department that he went missing in Afghanistan in September 2013.
In October 2014 you told the department that your younger brother [Mr C] went missing while walking to the shops in Pakistan on 23 September 2014. You then reported your father had been murdered 14 October 2014 on a return trip to Afghanistan. You then requested that your mother be considered for a Woman at Risk visa given she was now living without any male authority figure.
You were interviewed by the Identity section of this department on 15 August 2015 with the assistance of a Dari speaking interpreter.
I consider there is evidence before me to indicate that your brother is [Mr D]. He provided the names of his family members in his Partner visa application including as follows;
·[Mr E] [DOB] – (brother) single and resident in IRAN
·[Ms F] [DOB] (sister) - Married and resident of IRAN
It was put to you at your Identity interview that [Mr D] had told the department for the purpose of applying for his Partner visa that his father is, [Mr G] living in Pakistan and that he is around [age] years old; his father is in good health and living in Islamabad with his mother [Ms G] who is born in [year]. He stated they are resident in Islamabad. He stated he had last spoken to them just two weeks prior to the interview which was around February 2015.
As part of the evidence of your brother’s relationship with his spouse, he provided photographs of his family. One photo includes a woman he identified as his mother, [Ms G].
At the Identity interview you were shown the photograph of [Ms G] and asked to identify the woman. You stated it was your mother. This indicates that [Ms G] (as named by your brother in his visa application) and [Ms B] (as named by you in your visa application and the Split Family Humanitarian visa application lodged on 2 September 2011) are the same person. This indicates that you and [Mr D] are siblings.
Further, your brother [Mr D] provided a photograph of family members where it appears your youngest brother [Mr C] is included. [Mr D] gave the name of his younger brother as [Mr H], born on [date].
At the Identity interview you were shown the photographs provided by [Mr D] in his visa application and you confirmed that the young man in the photograph identified as [Mr H] by [Mr D] is your brother [Mr C]. You also identified [Mr H] by his social media site photograph.
At this Identity interview you presented an Afghan Drivers licence stating the licence was yours and was issued when you were allegedly 14 years of age in Kabul. The department found a number of issues with this document leading the interviewer to find it was bogus. A further check was undertaken which showed that the licence was never registered and that it is a fraudulent document.
Also, photographs added to the social media site of your youngest brother [Mr C] (aka [Mr H]) indicate that your brother [Mr C] is in fact not missing as you claimed to the department in Refugee and Humanitarian visa application. It is considered likely that your youngest brother is [Mr H] and you have provided incorrect information in relation to your family members. This raises serious concerns in relation to your credibility.
Given you have identified that you share the same mother and younger brother in your Identity interview with [Mr D], it follows that information you provided in relation to your identity and your claims for protection on the basis of being a minor were incorrect. Your identity is disputed given your brother has stated you are [Ms F] born in [year].
At the identity interview you were asked about the claims made during the Refugee and Humanitarian visa application (with you as the proposer). You continued to claim that your brother had disappeared on 23 September 2014 in Pakistan and then your father was killed in Afghanistan on 14 October 2014.
Your brother [Mr D] told the department that your father and younger brother were alive and well. In fact, your younger brother has a social media account which contradicts your claim that he went missing as he posted items after September 2014 when he was according to you, missing.
I consider there is also evidence to suggest that prior to your arrival at Christmas Island, you were married to [Mr I, incorporating Given Name 5], an Iranian citizen who arrived on the same boat at Christmas Island [in] May 2011.
It appears that [Mr D] and [Mr I] are well known to each other. There are multiple photos bearing [Mr I] on [Mr D]’s social media site. Further to this, [Mr I] appears in some of the photos provided by your brother in his partner visa application. Further, [Mr D] was asked about his sister’s marriage. He stated that she was married in Iran to a person called ‘[Given Name 5]’. I consider there are strong indications that ‘[Given Name 5]’ is the person you travelled with to Australia and who you recognised in photographs shown to you. Given your brother appears to be [Mr D] and you confirmed that you share the same mother and younger brother, it is also highly likely you are married to [Mr I] and therefore misrepresented your identity to ensure a visa would be granted.
As I consider it highly likely you were married to [Mr I] before your arrival on Christmas Island, by operation of Iranian citizenship law (Article 976), you are considered to be an Iranian citizen by marriage to [Mr I].
At your Identity interview you admitted to having arrived on the same boat as [Mr I] yet on arrival at Christmas Island you stated you travelled alone. You identified him as ‘[Given Name 5]’ when shown a photograph of him. Information before the department suggests you are married to [Given Name 5]. It follows that you are an Iranian national by your marriage to an Iranian citizen and were so at time of your protection visa application.
The contrary information before the department raises serious concerns regarding your claimed identity for the purpose of obtaining a Protection visa. I consider that you misled the department in relation to your name and birth date. Further, I consider you are highly likely an Iranian national by marriage to [Mr I] and was so at time of your protection visa application. I consider you have provided incorrect information in relation to your nationality/citizenship and this raises serious concerns regarding your claims for protection.
You arrived in Australia with no documents and stated you could not obtain identity documents yet prior to your interview with the Identity section of this department, you offered an Afghan drivers licence as evidence of your identity. This document is assessed as bogus.There are serious concerns as to your identity given the one document you provided as evidence of your identity and citizenship is bogus. I consider it is highly likely that you are an Iranian citizen and therefore you have provided incorrect information about your identity and nationality.
By providing incorrect information to the department in your Protection visa application, I consider you have not complied with section 101(b) of the Act. The following answers are considered incorrect;
·Questions 1, 4 and 7 of Part C of form 866 in which you were asked for your name, date of birth and other names you are known by. I consider the responses in relation to these questions you provided are incorrect because there is information before me to indicate your name is [Ms F] and you were born on [date] which means you were [age] years old on arrival at Christmas Island.
·Question 14 which asks about your relationship status where you said you were never married or in a de facto relationship. I consider the response in relation to this question your provided is incorrect because information before the department indicates you were married prior to your arrival at Christmas Island
·Questions 20, 21 and 22 where you denied having Citizenship of any country. I consider the responses in relation to these questions you provided are incorrect because information before the department indicates you may be married to an Iranian citizen and therefore eligible for Iranian identity documents.
·Questions 41-46 where you have claimed to fear returning to Afghanistan because you were kidnapped and raped by the commander and you fear the Taliban as well. I consider the responses in relation to these questions you provided are incorrect because information before me suggests that you were an adult and married therefore there is a strong possibility that incident never occurred and was construed for the purpose of claiming protection in Australia as a single female who is a minor.
Further, in your Form 80, you stated you did not have family in Australia, yet there is evidence that your brother was already living in Australia. Information you provided in the Form 80 about your identity, citizenship, family members in Australia are all considered to be incorrect answers which raises serious doubts as to your protection claims.
You travelled to Iran for two months after the grant of the protection visa. I consider in all likelihood you are an Iranian citizen and were so at time of your protection visa application.

The delegate notes in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 1, 4, 7, 14, 20, 21, 22, 41, 42, 43, 44, 45 and 46 of the form 866C in her application for a protection visa. If the applicant has failed to fill in her application form in such a way that no incorrect answers are given or provided her visa may be cancelled.
The NOICC notes that by failing to comply with section 101(b) of the Act, the applicant’s Class XA, Subclass 866 Protection visa is liable for cancellation under section 109 of the Act.
Response to the NOICC
The applicant responded to the NOICC through her representative on 27 December 2016. The delegate summarised the applicant’s response as follows:
“The PA was the only female child of her family having four brothers. As a Shia Muslim female she had no voice and was required to, without hesitation, obey the father of her household and her brothers. The father of the household subjected PA to discipline that in Australia would be regarded as domestic violence.
As Shias the family was threatened by the Taliban and in particular, the father was targeted. The father decided to flee Afghanistan by changing the family name and escape to Iran. The father decided to flee Afghanistan by changing the family name and escape to Iran. He did this as the only way he could reconcile to save the family from death or torture or both from the Taliban. After approximately three years in Iran because the family were unlawful and had bought the visas, the family fled to Pakistan.
The PA was never informed by her father or the remainder of her family that he had changed the PA’s birth name or her date of birth. It was only when the father was murdered in October 2014 that her mother had informed her that the father had engineered papers in Afghanistan to save the family from the Taliban and escape to Iran. It was her mother that told her that the younger brother was missing presumably killed in Pakistan. The PA had no independent means to verify her mother’s information as she was in Australia and had been traumatised for most of her life due to the danger she was experiencing living in Afghanistan, Iran and Pakistan. Her mother told her that her father had arranged for the Afghanistan driver’s licence because in Afghanistan you could obtain such a licence by paying the ‘right’ people.
Given the PA’s knowledge at the time she fled Afghanistan she answered her application to the best of her knowledge. There was no deliberate attempt or intention to provide incorrect answers to the Department. She provided answers that she knew in 2011.
Her father used to go to Iran on business trips every one-two months before the PA was born. The father when he fled from Afghanistan had arranged visas in Iran for all of the family by payment to officials. However, because the brothers were Afghanis they could not obtain work in Iran and the elder three brothers entered [Country 2] on refugee visas.
The PA was born in [Kabul] with the name [Ms F]. It appears her birth date is [date] and that next month she will be [age] years of age. Her mother’s name is [Ms J] residing in Pakistan and her father is deceased.
In one accepts that the PA was born in [year] she was [age] years of age when she arrived in Australia. At that time she was aware that she had four brothers but was not sure where they were and if all/or any of them were alive except for the youngest, [Given Name 4]. The brothers are:
·[Mr K, incorporating Given Name 3] (residing in [Country 3]);
·[Mr L] (residing in [Country 2]);
·[Mr D] (residing in Australia); and
·[Mr M, incorporating Given Name 4] (residing in [Country 3]).
There appears to be some affinity between the youngest brother and PA. As has been stated above, the PA had no knowledge of her birth name or date of birth until after her mother told her when the father died. It was well after her father’s demise that the PA found out that her younger brother, [Given Name 4] was alive and had moved to [Country 3]. The PA was forced into marriage by her father when she was 14 years of age. She married [Mr I] and the marriage solemnised on [date]. The ex-husband is a Pashtun and the PA is a Dari. The marriage was fraught with domestic violence and the couple have been separated since 2009. The PA cannot divorce the husband as any steps in this direction have to be initiated by the husband which he will not do. Prior to 2009 the PA fled her husband because of the beatings and went to see her parents in Pakistan. Her father would have none of it and sent her straight back to Iran to be with her husband. The PA went back to Iran but not to the company of her husband. She was a stranger in a country that despised Afghanis.
The PA by virtue of her marriage was an Iranian citizen. To depart Iran she needed her passport which was held by her abusive husband. It is correct to say that the PA and her ex-husband arrived on the same boat at Christmas Island [in] May 2011. However, the PA was at that time separated from [Mr I] and was intimidated by him with threats of violence including death if she did not keep her mouth shut.”
The applicant submitted the following reasons why the visa should not be cancelled:
“Since arriving in Australia, the PA has been a model resident. Given her abuse and stress prior to arriving in Australia, the PA tried to normalise her life. She began receiving counselling when she became a student at [School 1] after being referred by the school to QPASTT (see attached).
As a single person with no one to turn to, the PA developed a strong support network over the last five and a half years and has excelled in everything she has done.
The PA was chosen by [School 1] to represent unaccompanied refugees in [the Organisation 1] Program to the Board of Directors in NSW. She was also chosen to represent her school’s UN program at a [convention]. In high school she was awarded a number of scholarships for her academic and leadership qualities and on completion of Grade 12 was awarded a place to complete a Bachelor of [Field 1] at [University 1].
Unfortunately, because of her financial situation the PA deferred her studies for one year to save some funds to complete her education and has intentions of commencing tertiary studies in early 2017.
It is our view that the PA’s visa not be cancelled because cancellation is discretionary and not mandatory. One needs to put oneself in the position of the PA who because of her gender and immaturity was subject to the dictates of her father and older brother. In her family she had no rights. On arrival in Australia the PA as best she could answered questions on application forms or interviews to the best of her knowledge at the time. She was threatened by her ex-husband not to disclose that she was married. Her stress and trauma is well documented in the letter from her counsellor.
It was only after her father’s death that her mother was able to fill in some of the pieces about her family and details such as her name at birth, siblings’ names and dates of birth etc. Since being granted the visa the PA has made in difficult circumstances contribution to the Australian community, has been a model student, and if allowed to complete her studies would be a great asset to the Australian community [in Field 1], an occupation which is in demand in Australia.
It is submitted that on compelling and compassionate grounds that the visa not be cancelled.”
The applicant had submitted the following documents:
·Counsellor report from the Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT);
·Her father’s death certificate;
·Missing persons police report for her younger brother;
·Letters showing that the applicant achieved a place at [University 1] to study a Bachelor of [Field 1] degree;
·Awards and bursaries achieved by the applicant; and
·Her educational qualifications.
Departmental decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant’s Class XA, Subclass 866 Protection visa in a decision made on 23 May 2017. The Department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to give correct information in her XA 866 vis application.
The visa holder has provided incorrect information in her form 866C Application for a Protection Visa regarding her identity and protection claims. The Department has found:
The visa holder’s Protection visa was granted on the basis that she satisfied the Minister that she engaged Australia’s protection obligations under the Refugees Convention. The visa holder claimed throughout her visa application that she is fearful of returning to Afghanistan because as an Afghan minor who has been raped she will face discrimination and will be ostracised by the Afghan community. I find on the evidence before me that the events she described never occurred. It is also a possibility she was not in Afghanistan at the time of the alleged incidents given she has admitted to having married an Iranian citizen.
I find that the correct information is the visa holder was an adult at the time of making her visa application. Further, her claimed name, date of birth and current Citizenship status were all incorrect at the time she applied for the Protection visa. In the absence of evidence such as identity documents, the Department relied upon the information provided by the visa holder and relevant country information in relation to the claimed country of persecution, in this case Afghanistan. The provision of incorrect information in relation to her identifying information such as her name, date of birth and current Citizenship status resulted in the grant of the Protection visa where she may otherwise have not been entitled to the visa.
Further, her claims in relation to the Taliban commander and relevant events which she claimed took place in Afghanistan have been found to be fabricated and therefore the basis for meeting the definition of a refugee was based wholly on incorrect information. As the incorrect information provided by the visa holder was material to the grant of the visa, I find that the visa holder may not have engaged Australia’s protection obligations as a member of a particular social group.
The visa holder has admitted she is married to an Iranian citizen and was so prior to arriving in Australia. The visa holder was an Iranian citizen by virtue of her marriage and she did not provide that information to the Department on arrival in Australia.
The visa holder has admitted that her older brother [Mr D] was in Australia at the time of her arrival and she did not give this information to the Department. She also admits she has another two brothers, [Mr L] who is residing in [Country 2] and [Mr K] residing in [Country 3]. The visa holder claims in her reply to the Notice that she omitted this information because she had no idea where the three brothers were apart from her youngest brother, [Mr M] who she claimed was missing since September 2014. I find that the visa holder was aware she had a brother in Australia and that her younger brother was actually alive and living in [Country 3]. This raises serious concerns about the visa holder’s claims and family composition which are essential to establishing a person’s identity and whether she engaged Australia’s protection obligations.
Pre-hearing submission dated 28 January 2020
The First Tribunal received a pre-hearing submission from the representative dated 28 January 2020.
The First Tribunal received a submission contained in the affidavit of [Ms A] sworn on 29 January 2020.
The First Tribunal upheld the decision of the delegate on 19 February 2020.
The Federal Circuit Court quashed the decision of the First Tribunal [in] August 2020.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.    The applicant’s protection visa application forms (“visa application”). The relevant protection visa was granted to the applicant on 3 August 2011;
b.    The applicant’s identity documents being a copy of her Titre de Voyage, Australian driver licence and passport photograph;
c. The Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act 1958 dated 13 December 2016 (“NOICC”);
d. The Notification of Cancellation Under Section 109 of the Migration Act 1958 dated 23 May 2017 (“delegate’s decision record”);
e.    The review application form, which did include a copy of the delegate’s decision record;
f.   All documents submitted to the Department of Immigration and Border Protection (“the Department”) in support of the applicant’s protection visa application, including her statement of claims dated 3 June 2011; response to the NOICC, which included a submission dated 27 December 2016 from the representative, a psychologist report from QPASTT, her father’s death certificate, a police missing persons report for the applicant’s younger brother, tertiary offers and confirmation of current enrolment from [University 1], copies of the applicant’s qualifications, and copies of awards and bursaries awarded to the applicant; and a statutory declaration of the applicant sworn on 2 June 2015;
g.    The applicant’s application for Australian citizenship form, which was completed on 2 June 2015;
h.    All documents submitted to the Tribunal in support of the applicant’s application for review, including a submission from the representative dated 11 November 2019 in response to an invitation to comment from the Tribunal; copies of the applicant’s identity documents, including a copy of her driver licence, marriage certificate, Titre de Voyage and baptism certificate; an affidavit of the applicant sworn on 23 January 2020; pre-hearing submission dated 28 January 2020 from the representative; an affidavit of [Ms A] sworn on 29 January 2020 and an affidavit of [Mr N] sworn on 30 January 2020; a psychologist report dated 5 February 2021 from [Ms O] of [a named psychology service]; an outline of submissions from the representative dated 14 February 2020; support letters from [Mr P], [Ms A], [Mr Q], [Ms R], [Ms S], [Ms T] and [Mr N]; a statement of the applicant dated 26 November 2020; and a statutory declaration of the applicant sworn on 16 April 2021 from the representative; and
i.   Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 21 April 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (“DFAT”) most recent Country Information Report on Iran, published on 14 April 2020 (“DFAT Report on Iran”) and DFAT’s most recent Country Information Report on Afghanistan, published on 27 June 2019 (“DFAT Report on Afghanistan”).
Review Hearing
The Tribunal conducted an in-person hearing on 21 April 2021. The applicant attended the hearing with her representative. She was also supported by a friend who had provided a statement in support and who had offered himself as a witness to the Tribunal.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration and Border Protection to cancel her protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in her application for a protection visa. As a result of this, the applicant was served with a NOICC of her visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Act, referring amongst other things to the answers the applicant had provided in her application for a protection visa regarding her protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided at review, evidence provided at the First Tribunal hearing and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 3 August 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and her representative that the Tribunal might take the applicant's claims for protection in her protection visa application provided to the Department of Immigration on 22 January 2010 as having been read. The applicant and representative agreed.
Section 438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that the material in documents identified as documents [file numbers deleted] in the department file should not be disclosed to the applicant or the applicant’s representative because it contains information that would reveal confidential investigative methods used to detect breaches of the law. In addition, it states that the material in documents [file numbers deleted] in the Department file have been partially redacted for privacy reasons.
The Tribunal noted that it had provided to the applicant and representative a copy of the Notice prior to the hearing and they both confirmed having received it.
The Tribunal considered the validity of the Certificate. It determined that to declare the Certificate invalid would have the effect to deter people coming forward to the Department with confidential information. It would also have the effect of revealing confidential investigative methods. Accordingly, it held the certificate to be valid.
The Tribunal discussed its determination with the applicant and representative. The representative did not object to the Tribunal’s determination.
Conclusion on non-compliance
The Tribunal had a general discussion with the applicant about her present family situation.
The applicant advised the Tribunal that her mother was in Pakistan.
The applicant confirmed that her father passed away in 2014. The Tribunal asked the applicant whether she was certain of that date. She stated that she was. The Tribunal noted that her brother had advised the department that their father was alive in 2015. The applicant stated quite adamantly that she could not explain why her brother would say that and referred to his death certificate. The Tribunal noted the finding of the First Tribunal.
The Tribunal asked the applicant about the location of her four brothers. The applicant responded that two brothers were in [Country 3], another in [Country 2], and one in Sydney.
The Tribunal asked the status of her brother’s (one in Sydney) visa. She stated she had no contact with him.
The Tribunal asked the applicant about the status of her husband’s visa. She advised that she was separated from him and had been virtually since arrival in Australia. She said she had no contact with him. She didn’t know where he was now or whether his visa had been cancelled. She stated that she was not divorced from him.

The applicant stated that her place of birth was Afghanistan.
The applicant accepted that her nationality was Iranian by reason of her marriage in Iran to an Iranian national.
The Tribunal discussed with the applicant the findings of the delegate and the First Tribunal in relation to their respective findings that there had been incorrect statements made in her Protection Visa application.
The applicant confirmed that she accepted their findings and agreed that there were many incorrect statements made in her Protection Visa application. She agreed with the Tribunal that her core claims made in her Protection Visa application were false. She expressed her remorse by a sincere apology.
The Tribunal has considered the NOICC, the response to the NOICC, previous submissions by her various representatives, the decisions of the delegate and First Tribunal, and most significantly the admission made by the applicant to this Tribunal that her core claims made in her Protection Visa application were false.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal considered the submissions made by her representatives to the Tribunal and to the First Tribunal. It considered the applicant’s statutory declaration submitted to the Tribunal before the hearing.
The Tribunal confirmed that the applicant had copies of those submissions and statutory declaration in her possession. The Tribunal asked the applicant whether the statements made in each of them were accurate and complete. The applicant stated they were.
The Tribunal noted the statements of support received from friends and support people. The Tribunal noted how many such statements there were and the depth of support expressed in each of them. The Tribunal commented to the applicant that she was very fortunate to have so many people supporting her and so obviously caring for her.
The correct information
The information before the Tribunal indicates that throughout numerous contacts with the Department, other authorities and the First Tribunal the applicant has provided inconsistent and contradictory information in relation to her name, date of birth, circumstances and whereabouts of her immediate family and marital status and her identity documents. The applicant has subsequently told the Tribunal that none of her core claims on her protection visa application were true and that she was merely told by others what to say. She claims she was not raped by the Taliban and she does not fear persecution for the reasons claimed.
The applicant was a minor when she arrived in Australia and her date of birth is not [date] as she claimed in her Protection Visa application.
The applicant was and remains a married woman. In her Protection Visa application, she claims not to ever have been married or in a de facto relationship. However, she travelled to [Country 4] and subsequently to Australia with her husband.
The applicant is a citizen of Iran and travelled to Australia with her Iranian husband on a validly issued and genuine Iranian passport. In her Protection Visa application she claimed to be single, a minor and a citizen only of Afghanistan.
The applicant provided incorrect information on every important indices.
The Tribunal notes that the applicant would not have received a protection visa but for the claims she made.
The Tribunal gives this aspect considerable negative weight
The content of the genuine document (if any)
The Afghan driver’s licence provided by the applicant was a bogus document.
The applicant claimed not to have known that it was bogus but asked her mother to send it to her when she decided she wanted to get an Australian driver’s licence. The Tribunal agrees with the finding of the First Tribunal that it would not be possible for someone not to know she has a bogus drivers licence since such a document must have been obtained by her as a result of an application or test or some other action.
The Tribunal is satisfied that the applicant knowingly presented a bogus document to support her claims.
The Tribunal gives this aspect considerable negative weight.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document.
All of the core information provided by the applicant to support her claims is incorrect and she has admitted that she fabricated her core protection claims, in particular her claims to be a minor Afghan citizen who was raped by the Taliban, solely in order to seek a protection visa. She states that she was told by others to make this claim. She was neither a minor nor a single woman when she arrived in Australia. Instead, she was actually ten years older than she claimed to be, was married and also an Iranian citizen.
Had the applicant not provided this incorrect information she would not have been granted a protection visa.
The Tribunal gives this aspect considerable negative weight.
The circumstances in which the non-compliance occurred
The applicant stated to the First Tribunal that she was told by others, including her brother and father, to make the claims that she made and that she did not know her true date of birth until after her father died. The First Tribunal accepted that the applicant may have complied with requests to provide false information.
The Tribunal has noted that explanation and also noted that the applicant was in fact ten years older than she claimed to be, was actually married and travelling with her husband.
The Tribunal does not accept that the applicant made these claims unknowingly. The applicant was old enough and mature enough to know that she was being untruthful and was presenting incorrect information deliberately and knowingly in order to obtain a Protection Visa.
Furthermore, the applicant continued to provide misinformation and bogus documents to the Department as recently as 2015, either directly or through her representative at the time deliberately and knowingly.
The Tribunal gives this aspect considerable negative weight.
The present circumstances of the visa holder
The applicant is currently supported by a family in Brisbane. She was, until her visa was cancelled, studying [Field 1].
The applicant has a brother and her husband living in Australia but she has stated to the Tribunal that she has no contact with either.
The Tribunal noted the letters and statements of supported presented to the Tribunal.
On the strength of those statements, the Tribunal is satisfied that the applicant has no contact with her family.
The Tribunal had regard to Country Information that it had obtained from DFAT’s most recent Country Information Report on Iran, published on 14 April 2020:
Christians
3.38 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
3.39 Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination, and felt comfortable practising their faith.
3.40 DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.
Conditions for Returnees
5.29 Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
The Tribunal considered Country Information that it had obtained from DFAT’s most recent Country Information Report on Afghanistan, published on 27 June 2019:
Religion
3.17 Virtually all Afghans (approximately 99 per cent) identify as Muslim. Around 85 per cent of the Muslim community is Sunni, and around 14 per cent Shi’a. The remaining one per cent of the population consists of residual communities of other faiths, including Christians, Sikhs, Hindus and Baha’i. The populations of these non-Muslim communities have shrunk considerably in recent decades, with most leaving Afghanistan. Those who remain face considerable societal discrimination, which may include violence, in addition to the economic and security challenges experienced by other Afghans.
3.18 The Constitution identifies Islam as the country’s official religion. It stipulates that ‘no law can be contrary to the beliefs and provisions of the sacred religion of Islam’, and that the ‘provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended’. It requires that presidential and vice-presidential candidates be Muslim, and that all government ministers and members of parliament swear an oath of allegiance and obedience to the principles of Islam. The Constitution also declares that believers of other religions should be free within the law to exercise and perform their religious rites. However, non-Muslims have reported that they are generally unable to practise such rites openly, particularly traditional cremations for Hindus and Sikhs.
Blasphemy and Apostasy
3.24 Articles 323-325 of the 2017 Penal Code prohibit the acts of insulting religion, disturbing rites or ceremonies, and attacking the followers of any religion through words or actions. Disturbing religious rites or ceremonies, or destroying or damaging permitted places of worship or religious symbols is punishable by between six months and one year’s imprisonment, or a fine of between AFN30,000 (AUD554) and AFN60,000 (AUD1,108). Insulting or distorting the beliefs or provisions of Islam is punishable by between one and five years’ imprisonment. Attacking a follower of any religion through words, act, writing, and other public means is punishable by between six months and one year’s imprisonment.
3.26 Prosecutions and convictions for apostasy or blasphemy have been relatively uncommon since 2001. The last arrests or prosecutions in relation to apostasy or blasphemy of which DFAT is aware occurred in 2014. Those accused of blasphemy or apostasy are, however, highly vulnerable to societal discrimination, which may take the form of extreme violence. In one notorious case in March 2015, a large group of people in central Kabul beat a woman to death, set her body on fire, and dumped it on a riverbank after a mullah had (falsely) accused her of burning a copy of the Koran. Several perpetrators, including serving police officers who failed to prevent the killing, were subsequently convicted and given sentences ranging from death by hanging (later commuted) to one year in prison.
3.27 Individuals converting from Islam have reported that they risked the annulment of their marriages, rejection by their families and communities, loss of employment, and possibly the death penalty. DFAT does not have any additional information in relation to these assertions, or in relation to the number of individuals attempting to convert.
3.28 In its November 2018 submission to the UPR, ADF International alleged that blasphemy allegations are often exploited and deliberately misused against Christians. According to the submission, individuals accused of blasphemy are often subject to vigilantism in the form of harassment and physical attacks; many go into hiding or leave the country for the sake of their privacy and personal safety (and that of their families). DFAT does not have any information as to the veracity of this allegation.
The applicant claims to have converted to Christianity in [Church 1]. The Tribunal noted that she committed to the church after her Protection visa was cancelled. Her Protection Visa was cancelled in December 2017 and she accepted baptism into the church in January 2018.
A letter of support indicates that she attended the church prior to that time however.
The Tribunal questioned the applicant about her alleged conversion to Christianity. The Tribunal expressed its concerns to the applicant about the timing of her commitment to convert to Christianity. The Tribunal told the applicant that it had strong concerns about the fact that she converted only after her Protection Visa had been cancelled, which might permit the Tribunal to conclude that she converted to Christianity for the purpose of making a case for her cancellation of visa to be set aside.
The Tribunal asked the applicant why she had decided to convert to Christianity and at that moment in time. She replied that Christianity was close to her heart and that the timing had more to do with the fact that it was Christmas.
The Tribunal asked the applicant whether she still attended church. She advised that she attended [Church 1] regularly, on Friday night or Sunday.
The Tribunal noted that of all her letters of support, she appeared not to have any letter of support from the church itself. She replied that thousands of people attend the church, and that the church does not, as a matter of practice, provide letters of support.
The Tribunal noted that she had returned to Iran in 2014 and that she had told the First Tribunal and delegate that she returned for the purpose of attending a Muslim religious pilgrimage. The Tribunal, like the First Tribunal, put to her that it seemed strange that she would convert to Christianity less than 12 months after she travelled to Iran to go on a Muslim religious pilgrimage. The applicant replied that she had always wanted to attend the Shi’a pilgrimage.
The Tribunal considered the country information referenced above.
The Tribunal noted the Iranian position that it would not likely be interested in the fact that the applicant had converted whilst abroad.
The Tribunal noted the Afghani position that suggested the applicant would be at risk of societal discrimination if accused of blasphemy or apostacy. However, the Tribunal noted that DFAT was aware that the last reported case of an arrest or prosecution for blasphemy or apostacy was in 2014. DFAT was not aware of the possibility of the death penalty or discrimination in employment for converting from Islam or the misuse or exploitation of blasphemy charges against Christians.

The Tribunal has concerns about the depth of the applicant’s commitment to Christianity. Whilst it doubts that the applicant would seek to practice Christianity in Iran or Afghanistan, it is certain that the applicant will not proselytise or seek to convert others from Islam if she returned to either Iran or Afghanistan.
The Tribunal is not satisfied that the authorities or anyone in Afghanistan or Iran would persecute or prosecute her because she practiced Christianity or converted from Islam.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence that this applies to the applicant.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal that there have been any other instances of non- compliance.
The time that has elapsed since the non-compliance

100. The applicant has been in Australia since May 2011. The Tribunal acknowledges that is a considerable period of time.
101. The Tribunal gives some weight in favour of the applicant on this consideration.
102. The applicant has a brother and husband in Australia however she claims not to have any contact, nor does she have a partner or any children.
103. The Tribunal puts no weight in favour of the applicant on this consideration.
Any breaches of the law since the non-compliance and the seriousness of those breaches
104. There is no evidence before the Tribunal to indicate that the applicant has breached any laws.
Any contribution made by the holder to the community.
105. There is no evidence before the Tribunal that she has made a contribution to the community. The applicant admits that she has not performed any voluntary community work. The Tribunal puts no weight in favour of the applicant on this consideration.
106. The applicant states that she has made many friends and has integrated into the community. The Tribunal acknowledges the many statements of support tendered on her behalf. The Tribunal gives some weight in favour of the applicant on this consideration.
107. The applicant is not currently working or studying. However, the Tribunal notes that the applicant was studying [Field 1] at a university prior to the cancellation of her visa. The applicant also stated that she worked whilst she was at school and was studying full time. Tribunal gives some weight in favour of the applicant on this consideration.
Additional considerations
108. The Tribunal is mindful that a decision to cancel the applicant’s visa may result in her indefinite detention if the applicant refuses to return to either Iran or Afghanistan. However, the question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention. In this case it does not. The applicant is both an Afghani and Iranian citizen and whether the applicant faces indefinite detention in Australia is dependent upon a choice she makes whether to return to one of those countries, rather than the outcome of this decision.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
109. The applicant also claims that she is terrified of returning to Iran or Afghanistan because she is a single divorced woman.
110. The Tribunal had regard to Country Information that it had obtained from DFAT’s most recent Country Information Report on Iran, published on 14 April 2020:
Women
111.3.120 The constitution commits the government to ensuring the rights of women in all respects, in conformity with Islamic criteria. Women enjoy considerable legal protections in many areas, including personal safety, participation in the workforce and mandatory schooling for girls. Women can drive, work and attend university (there are more female university graduates than men). Although not a signatory to the Convention on the Elimination of All Forms of Discrimination against Women or its Optional Protocol, Iran has committed itself to the 2030 Agenda for Sustainable Development, including Goal 5 on achieving gender equality and empowering women and girls. President Rouhani has identified gender equality as a government priority. While there are no female ministers in the current cabinet, women occupy several senior political positions, including as two of Rouhani’s 10 vice-presidents (for Women and Family Affairs and Legal Affairs), while several women have served as deputy ministers. Four women currently serve as provincial governors, 13 as deputy governors, 300 as village mayors and, for the first time since the Islamic Revolution, women were recently appointed ambassadors to foreign countries. In September 2018, the Special Rapporteur on the situation of human rights in Iran welcomed the current government’s efforts to promote and protect women’s rights. Following domestic and international pressure, in October 2019 women were allowed to attend a live football match for the first time since immediately after the Islamic Revolution (more than 3,000 attended). This decision followed the death of 29 year-old Sahar Khodayari (nicknamed ‘Blue Girl’), who died after setting herself on fire during her trial for attempting to enter a football stadium disguised as a man.
3.121 Notwithstanding the government’s official commitment to women’s equality, hard-line sharia interpretations and conservative cultural and societal norms continue to limit the extent to which women are able to participate in Iranian society. According to the Guardian Council’s interpretation, the constitution prohibits women from serving as Supreme Leader or president, as members of the Assembly of Experts, the Guardian Council or the Expediency Council, or as certain types of judges. The Guardian Council excluded female candidates from running in the 2017 presidential election, and only 6.3 per cent of the candidates in the 2017 city and village council elections were female. Women held 6.5 per cent of seats in parliament as at March 2020. While women are active in the economy, they are significantly under-represented in the labour force. Iran has one of the world’s lowest labour force participation rates for women — according to UNDP figures, only 16.8 per cent of women are in paid employment (compared to 71.2 per cent of men). The World Economic Forum ranks Iran 148th out of 153 countries in its 2020 Global Gender Gap report, including 147th for economic participation and opportunity and 145th for political empowerment.
3.122 Women from more religiously-minded families generally require the permission of a male guardian to travel alone and can face societal harassment for doing so, particularly in more conservative areas. Married women require the written permission of their husbands, and non-married women under the age of 40 the permission of their fathers or other male relatives, to obtain a passport and travel abroad (see Exit and Entry Procedures). Under Article 1117 of the Civil Code, a husband may prevent his wife from working in occupations deemed incompatible with family interests, or the dignity of himself or his wife. Women are not supposed to mix openly with unmarried or unrelated men. Those caught doing so can be sentenced to up to 99 lashes. Article 550 of the Penal Code stipulates that the value of a woman’s life is half that of a man’s. Likewise, a woman’s testimony in court is half the weight of a man’s.
3.123 The legal minimum age of marriage for girls is 13 years, although girls as young as nine years can be married with the permission of a court and their fathers. Parliament has been considering for several years increasing the legal age of marriage for girls to 16, but this has met resistance from conservatives and failed to gain meaningful traction. According to the UNFPA, 17 per cent of Iranian girls are married before the age of 18. This practice is most common in rural areas. Forced marriage is prohibited by law.
3.124 Iranian women have gained greater rights to divorce in recent years, and divorce is more common today, particularly in the major cities. Nevertheless, laws pertaining to marriage and divorce are tilted heavily in the favour of men. Article 1133 of the Civil Code stipulates that a man ‘can divorce his wife whenever he wishes to do so’. A woman can obtain a divorce from her husband only with the husband’s permission or if a court determines the husband: cannot provide for his family; has violated the terms of their marriage contract; or is a drug addict, insane or impotent. Men are legally permitted to marry up to two permanent wives in polygamous marriages and an unlimited number in ‘temporary marriages’. Women do not enjoy this right. If a wife refuses to obey her husband without a ‘reasonable excuse’, she can lose certain rights, including the right to maintenance and spousal support. Regardless of age, a woman cannot marry without the permission of her male guardian. In September 2018, authorities arrested two women’s rights defenders who delivered workshops for women on realising equal rights in marriage.
3.125 In May 2019, parliament passed an amendment to the Nationality Law to allow Iranian women married to foreign men to pass their Iranian citizenship to their children. The Guardian Council approved the amendment in October 2019. Previously, Iranian women married to foreign men did not have the right to pass citizenship to their children. Under the amended law, Iranian women married to foreign men can apply for Iranian citizenship for their children (citizenship will not be granted to the child automatically, unlike in the case of a child born to an Iranian father). The granting of Iranian citizenship is dependent on the completion of security checks by the Intelligence Ministry and the intelligence wing of the IRGC, and certification that granting citizenship would not constitute a ‘security problem’. Human Rights Watch has expressed concern that this provision could be used to arbitrarily disqualify applicants, including where the parent/s of an applicant have expressed anti-regime views.
3.126 While the law prescribes severe penalties (including the death penalty) for rape, it does not recognise rape within marriage as a crime. Likewise, there is no specific law penalising domestic violence which, according to domestic interlocutors, occurs frequently across Iranian society (efforts to adopt legislation to protect women against violence have been ongoing since 2013, and remained so at the time of publication). Victims wishing to report domestic violence must file a complaint for bodily assault. As part of the complaint, the victim must present two adult male witnesses to the assault. This high evidentiary bar can prove difficult for women to meet. Police and judges often consider cases of domestic violence to be internal family matters, and can be reluctant to intervene. Where a complaint is made, police typically encourage the parties to reconcile and the victim to return to her abuser. According to official sources, there are 400 ‘social emergency shelters’ countywide that provide services to domestic violence victims. These are generally located in the major cities, are poorly resourced and advertised, and tend to focus on reconciling women with their abusive husbands. A domestic violence hotline offers social and medical support to women in need.

112. The Tribunal considered Country Information that it had obtained from DFAT’s most recent Country Information Report on Afghanistan, published on 27 June 2019:
3.60 The Constitution provides a number of guarantees in relation to women’s rights, including equality before the law, the right to an education, and the right to work. There are also constitutional provisions for ensuring women’s political representation, including through presidential appointment (see ‘Political System’). In June 2015, the government launched a National Action Plan to implement UN Security Council Resolution 1325 on Women, Peace and Security, although implementation was not complete as of August 2017. Despite various laws providing for the participation of women in public and social life, discrimination against women remains systemic and pervasive and flows through to the administration of the entire public sector. For example, only 2,500 out of 150,000 police are women. For cultural and customary reasons, male family relatives generally accompany female police officers when they undertake their training.
3.61 Women’s rights have improved significantly since the end of the Taliban regime, which comprehensively and unequivocally excluded women from public life. However, women’s place in society remains deeply contentious. Parliament rejected the first female nominee to the Supreme Court in July 2015 following objections from conservative groups, including female MPs. Societal, cultural and religious barriers continue to limit considerably the extent to which women are able to participate fully in Afghan society, as does socio-economic status and geographic location. Women in conservative rural areas are highly unlikely to be able to access education or employment opportunities. AGEs have also targeted women active in public life and women employed in non-traditional sectors such as policing and security, limiting their ability to participate in these areas for fear of reprisal.
3.62 Gender-based information is not yet available in relation to the October 2018 parliamentary elections. However, women accounted for approximately 40 per cent of registered voters and 16 per cent of candidates in the 2010 parliamentary elections, and 69 female candidates were elected, representing more than a quarter of the parliament. There are currently four female ministers (and one acting minister), and seven female deputy ministers. There is one female provincial governor (Daykundi Province) and four female Afghan Ambassadors serving overseas. A number of women occupy positions in both the Presidential and CEO’s offices. The government has made conscious efforts to increase female representation in the police and armed services, although cultural customs and discrimination have hampered recruitment and retention efforts.
3.63 Hazara girls are far more likely to be able to access education than girls of other ethnicities see Education), and Hazara women and girls are far more likely to be able to participate in sport, the community, and the workforce than women and girls of other ethnicities. Because of their educational qualifications and the support of their community, Hazara women are more likely than women of other ethnicities to be able to pursue employment opportunities with the international community, or with the government, police and army. The current governor of Daykundi province is a Hazara woman, and Bamiyan has previously had a female Hazara governor. The Independent Election Commission also includes a female Hazara commissioner. Despite their relatively strong position within their own community, however, Hazara women – like all women in Afghanistan – experience high levels of societal discrimination and gender-based violence, including sexual assault and domestic violence. Hazara women and girls living outside the Hazarajat are subject to the same societal restrictions as other Afghan women. All Afghan girls attending school face a risk of violent attack, although this risk is likely to be lower for Hazara girls attending schools in the Hazarajat.
3.64 Violence against women, particularly domestic violence, is endemic in Afghanistan. A 2010 survey by UN Women found that nearly 90 per cent of Afghan women had experienced physical, sexual or psychological violence in their lifetime, with 62 per cent experiencing multiple forms. DFAT assesses that the findings of this report remain valid. Violence may take the form of kicking, slapping, and beating with weapons such as wire, sticks, and gun butts. Acid attacks occur frequently, with many attributed to armed groups opposed to girls’ education and others committed by rejected suitors. Most violent attacks go unreported. Women who seek help to escape sexual or physical violence often face indifference or criminal sanctions for committing ‘moral crimes’ such as adultery or running away from home (see also ‘Detention and Prison’). Women who walk outside unaccompanied by a man often experience abuse or harassment, including physical groping, and are likely to be blamed for the assault.
3.65 The Law on Ending Violence Against Women (2009) (‘the EVAW law’) criminalised forced, underage, and ‘bad’ marriages (the practice of settling disputes in which the culprit’s family trades a girl to the victim’s family to settle a dispute); made rape punishable by prison sentences of 16-20 years, or by death should the rape result in the death of the victim; and banned the humiliation and intimidation of women. International observers report, however, that implementation, awareness, and enforcement of the EVAW law remains uneven. In its national report to the UPR third cycle, the government advised that it had taken a number of measures to better implement the EVAW law. These included: establishing special units in Provincial Offices of Attorneys in all provinces and special EVAW units at the Supreme Court in Kabul and 15 provinces; establishing legal assistance centres and family dispute resolution units nationwide; establishing a telephone hotline for women and children encountering violence; and implementing training for judges, prosecutors, police and other relevant employees, as well as legal awareness campaigns for citizens.
3.66 So-called ‘honour killings’ occur frequently in Afghanistan. The AIHRC conducted a National Inquiry on Rape and Honour Killing from 2011-13, and reported in June 2013 that it had recorded 243 cases of honour killing and 163 cases of sexual assault within the two-year study period. A much larger number of cases went unreported and included cases reported as suicide and self-immolation. Under the Penal Code, a man convicted of honour killing after finding his wife committing adultery cannot receive a sentence of more than two years’ imprisonment.
3.67 The continuing conflict has a particular impact on women and girls, who are not only killed and injured in high numbers but suffer restricted access to education and healthcare and freedom of movement. Women face additional difficulties when displaced by conflict, or when widowhood makes them the primary breadwinners in their families. In 2018, UNAMA reported that women comprised ten per cent of all conflict-related civilian casualties, with 350 deaths and 802 injuries. Ground engagements between anti- government elements and pro-government forces accounted for half of all casualties, followed by suicide and complex attacks (16 per cent), aerial operations (13 per cent), and non-suicide IEDs (12 per cent). The number of women casualties in 2018 remained commensurate with previous years.
3.68 Women in areas where AGEs have a greater level of control tend to face greater difficulties in terms of access to justice, due to parallel justice systems that routinely discriminate against women. For example, DFAT is aware of cases whereby a tribal court may respond to an incident of domestic violence by ordering a mediation session, which excludes the female victim. UNAMA documented several incidents in 2018 of AGEs carrying out punishments against women based on a parallel justice system, resulting in one death and four injuries. In one case, in October in Darzab district, Jawzjan province, the Taliban lashed two women on the accusation that they had committed ‘immoral activities’, such as speaking to men to whom they were not related over the telephone and being outside of their homes without a male relative to act as a guardian. Before lashing the women, the Taliban reportedly announced to bystanders that the punishment was based on sharia and a Taliban court decision to set an example for others.

3.69 DFAT assesses that the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Long-standing traditional values and gender roles continue to restrict significantly the participation of women in the community and workforce, in both the public and private sectors. DFAT assesses that Afghan women face a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage. Afghan women working outside the home, in non-traditional areas such as policing or security, or in areas advocating women’s rights, face a high risk of violence, including targeted killings. Afghan women are particularly vulnerable to the effects of the continuing armed conflict, and face an elevated risk of conflict-related death or injury.

113. The Tribunal notes that she has in fact returned to Iran in the past without any claimed concerns. The applicant stated that she did that before she converted to Christianity and it was only for a short period. She claimed she would have been regarded as a visitor.
114. The applicant stated with some emotion that she has no family whatsoever in Afghanistan. She stated that she left Afghanistan when she was [a minor], when the family fled the Taliban in 1995. She says she would have nowhere to live in Afghanistan. She has no money, she is no longer a Muslim, and no family support. Importantly, she states that she has no male support.
115. The applicant then stated the risks for her are even greater in Iran. She said that in Iran, men control women, that she can’t remarry as she has not been able to obtain a divorce, that she risked an honour killing either by her husband or his family, and that her husband, if he has been returned to Iran, would be resume violence towards her, and that if her husband was not in Iran, then her father-in-law would be her guardian.
116. The Tribunal had some sympathy for her concern that if her husband had been deported from Australia, then he may hold the applicant responsible, as it was her brother, and her actions in seeking visas for her family, that tripped off the inquiry into her identity, and no doubt, that of her husband and brother.
117. The applicant went on to state that in her view, the Iranian authorities would consider her less than a second-class citizen, as they would regard her as Afghani, as an ethnic minority. She believes she would be required to hide her identity, and in any event, has no identification documents from Iran.
118. The Tribunal is troubled by the position the applicant might find herself in in either Afghan or Iran. The potential risk to the applicant is a weighty consideration in her favour. Deportation to either of Afghanistan or Iran are both very problematic. The Tribunal has grave concerns about the applicant’s safety in circumstances where the applicant’s estranged husband has been deported to Iran. The Tribunal would consider the risk of the estranged husband being deported to Iran as a real risk, and the risks of harm to her from him or his family in the circumstances contemplated, as just as real a risk.
119. The Tribunal notes the country information cited above and is particularly mindful that the applicant has no family connections at all in either of Afghanistan or Iran – both countries that country information suggests are important for the protection of women.
Conclusion
120. The Tribunal acknowledges that finding the right balance in this case has been a complex one. On the one hand, and as openly discussed with the applicant, it is mindful of the policy considerations of rewarding an applicant who has knowingly falsified (lied about) her claims for advantage. It is mindful that her “new” claim as to being a Christian has failed to persuade the Tribunal, either individually or cumulatively, that she will be persecuted now, or in the reasonably foreseeable future, if she returns to Afghanistan or Iran.
121. But the Tribunal is concerned for the safety of the applicant as a single and separated woman returning to either of Afghanistan or Iran, both countries in which she has no family connections, indeed any connections at all. She would have connections with her former husband’s family but as the Tribunal has highlighted, such connections would carry real risk to her.
122. She has been in Australia for a significant period of time and has endeavoured to better herself by undertaking a [Field 1] degree for the benefit of humanity. She has “sponsors” in Australia who have been, and are prepared to continue, looking out for her.
123. It is for these reasons only that the Tribunal is swayed to exercise its discretion in the favour of the applicant.
124. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
125. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins AM
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.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.

[2021] AATA 2130

6 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Abuse of Process