2442123 (Refugee) - [2025] ARTA 2257

2442123 (REFUGEE) [2025] ARTA 2257 (5 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2442123

Tribunal:Senior Member G Cranwell
Place:Brisbane
Date: 5 September 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 05 September 2025 at 1:01pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – Federal Court remittal – incorrect information in the visa application – Tamil woman without male protection – fear of sexual assault – husband not missing – discretionary power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 97-105, 107-109, 140
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to cancel the first named applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The Tribunal (differently constituted) affirmed the decision to cancel the applicant’s visa on 14 July 2020.
A judge of the Federal Court of Australia set aside the Tribunal’s decision [in] October 2024, and remitted the delegate’s decision for review by the Tribunal.
The applicants were represented in relation to the review.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Non-disclosure certificates
The Tribunal notes that the Departmental file contains non-disclosure certificates made under s 375A and the former s 438 of the Act. Without determining the validity of the non-disclosure certificates, the Tribunal in this decision will confine itself to disclosing only information previously disclosed in the s 107 notice, the decision of the delegate and the decision of the Tribunal (differently constituted) dated 14 July 2020.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) as follows:
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed that you could not return to Sri Lanka due to being a vulnerable woman whose husband was missing and so no longer had the protection of being in a traditional family unit. You claimed that without your husband's presence within the family unit you were at risk of being persecuted by the Sri Lankan authorities and non-state actors for your imputed political opinion. You further claimed that without the protective influence of your husband you were at risk of being sexually assaulted. These claims were fundamental to the determination that you are a person to whom Australia has protection obligations.
However the information available to the department suggests that your husband was never missing and that he continues to reside in the same residence that you resided in prior to leaving Australia. Furthermore, your two other children continue to live with him.
Particulars of the possible non-compliance
On the material presently before me, I consider that you have not complied with Section 101(b) of the Migration Act in relation to answers provided in your statement of claims declaration dated 03 May 2011 and to the following answers you provided in your Protection visa application:
·At question 43 of Part C of the Form 866, which states: 'Why did you leave that country?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that you left Sri Lanka because you feared being persecuted because you are a Tamil woman whose husband is missing and that this also put you at risk of sexual assault; whereas in actual fact your husband was never missing and that you continued to have the protection of being in a family unit until you decided to depart Sri Lanka.
·At question 44 of Part C of the Form 866, which states: 'Have you experienced harm in that country?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that you were harassed by the police and the· CID after you made enquiries about your missing husband; whereas your husband was not actually missing but rather he was residing with you, suggesting that your claims regarding the circumstances of the claimed harm and harassment did not happen and are incorrect.
·At question 45 of Part C of the Form 866, which states: 'What do you fear may happen to you if you go back to that country?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that you feared being persecuted because you are a Tamil woman whose husband is missing and that this also put you at risk of sexual assault; this is incorrect as in actual fact your husband was never missing and that you continued to have the protection of being in a family unit until you decided to depart Sri Lanka.
·At question 46 of Part C of the Form 866, which states: 'Who do you think may harm/mistreat you if you go back?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that you would be at a real risk of facing serious harm by the people who abducted your husband. This answer is incorrect because your husband was not abducted by anyone.
·At question 47 of Part C of the Form 866, which states: 'Why do you think this will happen to you if you go back?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that the Kamna group and the army believe that you were supporting the L TIE and that you :believed that you would be persecuted for this and also because you were a Tamil woman whose husband was missing; whereas your husband was not actually abducted by anyone, suggesting that the circumstances on which you based your claims were incorrect.
·At question 48 of Part C of the Form 866, which states: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered: 'Please see Statutory Declaration attached'. In the statement of claims to which you refer you stated that the Sri Lankan government cannot protect you because they are the ones who are persecuting you for you and your husband's imputed political opinion; whereas your husband was never abducted and continued to reside safely in his residence with you and your children, suggesting that he did not have an adverse profile in Sri Lanka. This suggests that the circumstances on which you based your claims were incorrect.
I consider that you have not complied with Section l0l(b) of the Migration Act in relation to the answers you provided in your Protection visa application, in particular to questions 43, 44, 45, 46, 47 and 48 of Form 866C and to answers provided in your statement of claims declaration dated 20 June 2012 in which you declared that you were Tamil woman who was being persecuted for your imputed political opinion, and was vulnerable because you did not have the protection of your husband who you claimed was missing; because at the time of your Protection visa application your husband was not missing and you were residing at his address until you departed Australia. Your protection claims were based on your husband being missing, however as the department has received information that this was not the case, I consider that this suggests that you do not hold an adverse profile for Sri Lanka as claimed by you in your protection visa application.
As the incorrect information provided was material to this determination it appears· you may not have engaged Australia's protection obligations.
The Tribunal (differently constituted) set out the following additional particulars at [20]-[22] of its decision:
On 2 January 2015, the Department received a telephone call from an informant who advised that she was a friend of the applicant’s husband, [named] and that [he] was living in Sri Lanka and wish to make contact with his son in Australia. The informant further advised that the visa holder had made false claims in her protection visa application about her husband’s disappearance and her imputed political opinion. On 7 January 2015, the Department received documents from the informant said to have been forwarded to her by the applicant’s husband.
The department’s inquiries indicated that the applicant husband was alive and living in Sri Lanka at the same address at which the applicant claimed to have been living prior to leaving Sri Lanka, and that the applicant’s two other children were also living at that address. Documentation held by the department includes a certificate of residence and character issued in 2014, a householder’s list issued in 2014, certified copies of identity documents validated in 2012, and medical records for the husband dating from 2011.
The applicant’s husband died [in] October 2016.
The applicant provided the Tribunal with a statement dated 5 June 2017. Relevantly, the applicant stated:
I arrived in Australia [in] May 2012 with my youngest son. Soon after my arrival at Christmas Island I made contact with my parents and my [remaining children].
My parents told me that [Mr A] had travelled to Australia. I had asked my parents to ring me back to inform [Mr A’s] phone number in Australia. When I received it I contacted [Mr A] by telephone. I think he was living at [Suburb 1] in Brisbane at that time. I told him that [my husband] had gone missing in Sri Lanka.
…
Soon after I had settled I met [Mr A] at the [named] community service in [Suburb 2], Queensland. Soon after we had me we visited his friends and had visited [Location 1] and had attended [Church 1]. I also knew [Mr A’s] sister’s husband named [Mr B] who had travelled on the same boat as myself and my son. He was subsequently deported to Sri Lanka.
At the time I met [Mr A] he had informed me that his wife named [Ms A] was still living in [City 1, in Sri Lanka]. He informed me that he wanted to bring her to Australia but that he would seek a divorce in Australia after her arrival. [Mr A] wanted to commence a relationship with me. I had initially protested but he had been very persistent, persuasive and obsessive and told me that he wanted to eventually marry me as he was not happy in his marriage.
After I secured permanent residence I ended this relationship when I had lived at a rented property in [Suburb 3]. I did not approve of maintaining a permanent relationship with [Mr A] in the presence of his wife in Australia.
Before the arrival of his wife I moved to [Suburb 4]. [Mr A] used to frequent my house at [Suburb 3] but not at [Suburb 4] except to harass and threaten me. [Mr A] had been employed at [Employer 1].
After I moved to a unit in [Suburb 4] I experienced continual harassment and theft and vandalism and threats by [Mr A] and later by his nephew named [name] and his brothers named [names]. These three relatives of [Mr A variant] are believed to be waiting on protection visa status in Brisbane. One of [Mr A’s] “cousins” had already been deported from Australia.
At [Suburb 4] my car was damaged. My front door was damaged. [An object 1] and my Immigration files were stolen and I was threatened with more unexpected visits and with harm. I have made official complaints to the [three named] police stations in regard to all of these.
Due to the terror I had felt whenever unexpected violent visits occurred to the [Suburb 4] unit when I was present together with being alerted to a series of lewd concocted photo shopped pictures on public display on [social media 1] and enduring resulting unwanted visits by unknown men I was compelled to leave this property and went into virtual hiding with my son at a safe house. I can provide a written letter to attest to this fact.
In [specified month] when I discovered I was pregnant, [Mr A] had insisted that I attend an abortion clinic. [Mr A] had arranged and had taken me to the [named abortion clinic]. I subsequently received medical follow up regarding bleeding issues at the [Hospital 1] in Brisbane.
…
I was a genuine asylum seeker when I came to Australia. When I arrived in Australia I had no understanding that my ex husband was not missing. Before travelling to [Country 1] and during the whole time that I was in [Country 1] I never heard that my husband had lived in our former marital home. I was in touch regularly with my father who had told me that he had not seen [my husband] anywhere nor had heard that he had been discovered anywhere prior to the chance meeting my son had with him. My mother informed me she was managing the marital house and that on all of her visits there she had never seen [my husband].
The applicant provided the following supporting documents:
·witness statement of the applicant provided to the Queensland Police Service (QPS) dated [in] July 2015;
·witness statement of the applicant provided to the QPS dated [in] August 2015;
·QPS investigative records;
·admission notes from [Health Service 1] dated [in] January 2014;
·discharge summary from [Hospital 1] dated [date];
·[social media 1] posts depicting sexual acts.
Submissions by the applicant’s representative dated 11 August 2017 relevantly stated:
[The applicant] fears that [Mr A] may be behind the dob-in information trying to take revenge by providing false information. The telephone informant was probably a proxy of [Mr A].
The Tribunal (differently constituted) stated at [27] of its decision that “[t]he applicant has surmised the identity of the informant and made submissions based on that surmise”.
The Tribunal places no weight on the information provided by the informant. The Tribunal considers the information provided to be highly unreliable.
The applicant provided a number of documents in relation to the residential address of her [children] in Sri Lanka. These documents included:
·certificates of residence and character in respect of the applicant’s [children];
·confirmation of residency;
·national identity cards of the children;
·application for admission to school;
·passport applications of the children.
On the basis of the documents listed above, the Tribunal accepts that the applicant’s [children] in Sri Lanka resided with their maternal grandparents in [Town 1], [City 1]. The Tribunal does not accept that the children resided with the applicant’s husband at [Address 1] [in City 1].
Further, the applicant provided sworn statement from one of her children in Sri Lanka dated 19 November 2019. The child relevantly stated:
In 2008, my father suddenly disappeared. After that, I grew up under the responsibility and protection of my grandmother. My mother had gone to a foreign country. As I was very small, I did not really understand what was going on around me.
From early 2008 until 2014, I never met my father. This is the absolute truth. I ment him however by chance in 2014 in [City 1]. I was very surprised by this meeting. I immediately informed my mother of the meeting that day. I also told her about the content of my conversation with my father. Even after that, my father never came to live with me! In addition, he is not at all interested in this idea. My father has never been a good father to me. I hate him!
The applicant also provided a statement of John Campbell [Solicitor A], solicitor, dated 17 August 2017. [Solicitor A] relevantly stated:
On or about 9 August 2014 [the applicant] called on my wife and I at our residence and informed us that she had received a phone call from another son of hers who was still living in Sri Lanka in which he informed [the applicant] that his father, her husband had returned “home”. He reported to her and she to us that his father had said to him, “I need money. I hear your mother is in Australia. Will she help me”.
I asked [the applicant] if she was going to bring him to Australia. She replied in the negative saying, “he is a bad person”. [The applicant] asked me if she should inform Immigration and I told her I could see no point in doing so as her husband was still a fugitive.
Not long after this she informed us that she had learned of his death.
The Tribunal accepts that the applicant was unaware of her husband’s whereabouts from early 2008 until August 2014, when she received a telephone call from her son.
As noted by the Tribunal (differently constituted) at [21] of its decision, documentation held by the Department included:
·a certificate of residence and character issued in 2014;
·a householder’s list issued in 2014;
·certified copies of identity documents validated in 2012; and
·medical records for the husband dating from 2011.
While these documents indicate that the applicant’s husband was still alive at the relevant times, none of the documents indicate that the applicant was aware of his whereabouts.
Further, the only document held by the Department which listed the address of the applicant’s husband as being [at Address 1] [in City 1] was the householder list, which is dated after his reappearance in August 2014. There is no evidence as to where the applicant’s husband was living from 2008 until 2014.
For completeness, as noted by the Tribunal (differently constituted) at [28] of its decision, the Department provided the Tribunal with a further series of documents on 20 January 2020. The Department did not explain its delay in providing these documents to the Tribunal in circumstances where several of the documents are stamped as having been received on 28 December 2017. The Tribunal notes that the signature appearing on a document which originated in Sri Lanka does not match the signature of an identity document in respect of that person held by the Department. In these circumstances, the Tribunal places no weight on any these documents.

For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Representative for the Applicant:           Mr Peter Berg

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 ART, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a [written]# notice:
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
[(1C)The notice under subsection (1) must be given in the prescribed way. ]#
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
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