1616481 (Refugee)

1616481 (Refugee) [2017] AATA 380 (28 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616481
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Magda Wysocka
DATE:28 February 2017
PLACE OF DECISION:  Melbourne
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 28 February 2017 at 3:08pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Incorrect answers in protection visa application – Iraqi citizenship – Essential and significant reasons – State protection unavailable – Incorrect answers provided to achieve favourable outcome – Owed non-refoulement obligations
LEGISLATION
Migration Act 1958, ss 5, 97-101,101(b), 107, 109(1), 109(1)(b) and (c), 109(2),
Migration Regulations 1994, Schedule 2 – r.2.41,
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant made an application for a protection visa [in] May 2010 and was granted the visa on the same day. [In] September 2016 the delegate cancelled the visa on the basis that there had been non-compliance under s.101(b) of the Act in that the applicant had given incorrect answers on his protection visa application form. The applicant provided a copy of that decision to the tribunal. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant’s spouse, [name], and son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.
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.
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 s.107 notice of intention to consider cancellation of the applicant’s visa (NOICC) was sent to the applicant on 13 November 2015.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects (as set out in the delegate’s decision provided by the applicant to the tribunal):
a.In response to various questions in the applicant’s protection visa application [in] May 2010, the applicant stated that his name is [Name 1] and that he had not been known by any other names.
b.In response to various questions in his protection visa application, the applicant also stated that he has been stateless from birth, is currently stateless and holds no other citizenship. He also stated that his wife and [number] children were stateless.
c.In his protection visa application, the applicant advised he was seeking protection in Australia so that he did not have to return to Iraq and in response to questions 42-46 of Form 866 Part C referred to his statement of claims submitted in the RSA process. In that statement, the applicant included the following:
I, [applicant]…
I am stateless and do not have the right to citizenship in any country or a legal right to reside in any country.
I was born on [date] in Baghdad, Iraq. At the time of my birth my parents were residing in Iraq but were stateless…Because my family were stateless Faili Kurds we had no right to identity documents necessary to function within society in Iraq…
Without ID we cannot access Iraqi hospitals except if taken there dead…
Myself, my siblings and my children have no right to access the education system provided by the Iraqi government ie no access to the public education system…
My children did not have access to education so I have to apy [sic] for a basic education at a private school which has only a few subjects to be taught…
I have no identity document, not the right to an identity documents…I could not legally marry in Iraq so had only a religious ceremony but no legally accepted document. Our children do not have a birth certificate…If I am forced to return to Iraq, I now fear for my physical safety and I fear for my family’s safety…
I believe if I returned to Iraq I would be at a real risk of facing serious harm…I cannot return to Iraq because I am stateless and the government has not given me even the most basic rights let alone any protection.
The NOICC states that on the basis of the above information, as well as meeting all other relevant criteria, the applicant was granted a protection visa [in] May 2010.
As set out in the delegate’s decision, the NOICC further states that the applicant’s spouse [name] lodged a [permanent] visa application [in] March 2013, including the couple’s [number] children as dependants and with the applicant as the visa sponsor. As part of that application, several documents were provided including Iraqi passports and identity cards for the applicant’s spouse and children. Also provided were the applicant’s Iraqi identity card (issued [in] June 2009) and residency card issued [in] April 2007. A marriage certificate for the applicant and his spouse was also provided. The applicant’s residency card and ration cards and his marriage certificate list his name as ‘[Name 2]’.
The NOICC advised the applicant that the department considered he had provided incorrect answers to various questions in Form 866:
·At question 1 of part B of the Form 866 where you stated that your name is [Name 1] as you have Iraqi identity documents that show your name is [Name 2].
·At question 9 of part B of the Form 866 where you stated that your wife and children are stateless, as they all hold Iraqi passports and Identity cards.
·At question 1 of part C of the Form 866 where you stated that your name is [Name 1] as you have Iraqi identity documents that show that your name is [Name 2].
·At question 4 of part C of the Form 866 where you stated that you have not been known by any other name than [Name 1] as you have Iraqi identity documents that show that your name is [Name 2].
·At question 19 of part C of the Form 866, where it states ‘Your citizenship at birth’ and you indicated ‘Stateless’, as it appears you are an Iraqi citizen.
·At question 20 of part C of the Form 86, where it states ‘Your current citizenship (if different to at birth)’ and you indicated ‘N/A’, as it appears you are an Iraqi citizen.
·At question 21 of part C of the Form 866, where it states ‘Do you hold any other citizenship or are you a national of any other country?’ and you indicated ‘No’, as it appears that you are an Iraqi citizen.
·At question 23 of part C of the Form 866, where it states ‘If you are stateless, how when and why did you lose your citizenship?’ and you indicated ‘Born stateless’, as it appears that you are an Iraqi citizen.
I consider that you have not complied with section 101(b) of the Act as you have provided the following incorrect information in the statement of claims provided with the RSA, which you referred to at questions 42, 43, 44, 45, and 46 of your Protection visa application.
·That you are stateless and do not have a right to citizenship as it appears that you are an Iraqi citizen.
·That you do not have identity documents as you have provided an Iraqi Identity card issued [in] June 2009, an Iraqi residency card issued [in] April 2007 and an Iraqi ration card issued [in] March 2012.
·That you could not legally marry as you have provided a Marriage certificate issued by the Civil Status Court of Iraq.
·That you will face serious harm if you returned to Iraq as you voluntarily returned to Iraq from [date] August 2012 to [date] November 2012.
[In] August 2016 the applicant provided a combined response to the NOICC as well as to the International Treaties Obligations Assessment (ITOA) procedural fairness letter he was sent [in] July 2016 including a statutory declaration.
According to that response, in relation to his name, the applicant stated that in his entry interview he initially gave his full name according to Iraqi norms and traditions but that he was told the name was too long and to shorten it. He also stated that when he came to Australia by boat, the smuggler took passengers’ passports and the applicant did not have any Iraqi identification documents on him. He obtained his Iraqi ID card after visiting Iraq in 2012. He never intended to lie about his identity but he was persecuted in Iraq (and in Iran, to where he escaped) as a Kurdish Faili and his feeling was a Kurdish Faili was the feeling of a stateless person. Other detainees on [location] from similar backgrounds told him to say he is stateless and he did this because it confirmed his feelings and actual situation at the time.
The applicant also provided information about his return trip to see his family in 2012. According to his statement, the applicant returned to visit his family because he and his family were suffering emotionally at being apart, which was affecting the applicant’s mental health. His son had also been approached to join a Shia militia fighting against ISIS and his wife needed his support. The applicant and his family stayed with his wife’s relatives in [Town 1], an area close to the Iranian border, and he also travelled to Iran before returning to Australia.
[In] September 2016 the applicant was notified that his ITOA was finalised [in] September 2016 with a finding that non-refoulement obligations are engaged in his case and that the department will not make arrangements to remove him from Australia while he continues to engage non-refoulement obligations.
The delegate accepted the applicant’s explanation in relation to inconsistencies regarding his name and found that he had not provided incorrect information to various questions (Questions 1 of Parts B and C of Form 866 respectively and Question 4 of Part C, Form 866). The delegate found that the applicant and his family were Iraqi citizens and were not stateless at the time of the applicant’s protection visa application. The delegate therefore found the applicant had not complied with s.101 of the Act and had provided incorrect answers to Questions 9 of Part B of Form 866, Questions 19, 20, 21 and 23 of Part C of Form 866 and incorrect information in support of his visa application.
Information provided in relation to the applicant’s name
The tribunal has considered the applicant’s response to differences between his name on identity documents and information provided to the department in his protection visa application. On the country information set out in the delegate’s decision (and the ITOA) regarding Arabic naming practices adopted by Faili Kurds in Iraq, the tribunal accepts the applicant’s response and finds that the applicant did not provide incorrect answers regarding his name and that there was no non-compliance by the applicant in the way described in the s.107 notice in relation to the applicant’s name.
Information provided in relation to the applicant’s citizenship
The applicant did not dispute that he was an Iraqi citizen in his response to the NOICC.
The applicant’s evidence at his hearing before the tribunal regarding his citizenship was unclear, inconsistent and at times evasive. He initially stated that he was stateless from birth and ‘all the time’ and that he was not a citizen of any country. However, he then stated he was an Iraqi citizen at birth but that from 1980 (the start of the Iran-Iraq war) all Faili Kurds’ citizenship was ‘suspended’ for nine years. He referred to there being two procedures to Iraqi citizenship, the first being the grant of a birth certificate and the second being citizenship papers when an individual turns 18. As put to him at hearing, the tribunal does not accept that obtaining an Iraqi citizenship card at the age of 18 is a second form or stage of citizenship as the applicant indicated; rather, it is merely evidence of citizenship already held.
Furthermore, the applicant confirmed at hearing that he currently has Iraqi citizenship and that he had to renew his citizenship card every five years. He thinks he renewed his card in 2008. He confirmed that he was an Iraqi citizen at the time of his PV application and that his wife and children also had Iraqi citizenship at the time of his application and continue to hold such citizenship.
The applicant provided several documents as evidence of his own and his family’s Iraqi citizenship. He has not claimed that those documents are not genuine and there is no evidence before the tribunal that the documents are not genuine. Furthermore, while the applicant has referred to having to renew his citizenship card every five years, the tribunal finds that this is merely an administrative procedure in relation to renewal of identity documents and does not accept that the applicant was required to renew his actual citizenship status every five years. Despite the applicant’s evidence that Faili Kurds’ Iraqi citizenship was ‘suspended’ during the war, he did not indicate that he went through any specific procedure or formality to re-obtain Iraqi citizenship. This strongly suggests that the applicant never lost his Iraqi citizenship.
Based on the applicant’s evidence to the tribunal and the identity documents provided in relation to himself and his family members as listed in the NOICC, the tribunal finds that the applicant and his family are Iraqi citizens and that they were citizens of Iraq at the time of the applicant’s protection visa application. It therefore finds that the applicant has not complied with s.101(b) of the Act because he provided incorrect answers to questions in his protection visa application in relation to his and his family member’s citizenship, their ability to obtain identity documents and various rights and services.
The applicant’s departure from Australia
The tribunal notes that the departmental delegate also found that the applicant’s voluntary return to Iraq for approximately three months in 2012 indicated that the applicant gave incorrect information in his statement of claims, which was adopted in Questions 42, 43, 44, 45, and 46 of Part C to his Form 866, by claiming that he believes he will face serious harm if he returned to Iraq.
The tribunal took evidence from the applicant and his wife regarding the details of the applicant’s return trip to Iraq. It found their evidence consistent with each other and, with the exception of one aspect (in relation to claims that the applicant’s son had been approached to join a Shia militia), consistent with evidence provided by the applicant to the department regarding his travels.
While the tribunal found the applicant’s evidence regarding his wife depression and/or psychological illness to be vague, on the basis of that combined evidence, it accepts that the applicant returned to Iraq to see his family and particularly due to fears regarding the family’s safety in Baghdad given the general security situation in Iraq. The tribunal further accepts on the basis of the consistent evidence provided that after arriving at Baghdad airport travelled with his family to [Town 1], a border town with Iran where the applicant’s maternal relatives live. The tribunal accepts that the applicant remained in [Town 1] with his family for [number] weeks and that he went to Kermanshah Iran with his mother afterwards for approximately [number] weeks, as evidenced in his Australian travel document. The applicant indicated that he and his family returned to Baghdad for two days prior to his departure, to say goodbye to his wife’s family.
Having considered the evidence before it, the tribunal does not accept that the applicant’s decision to return to Iraq for a period in 2012, in circumstances where he spent minimal time in Baghdad, is evidence that information provided by him in 2010 that he has a subjective belief that he would face serious harm if he returned to Iraq is incorrect.
For these reasons, the tribunal is not satisfied that there was non-compliance in the way described in the s.107 notice resulting from the applicant’s voluntary return to Iraq from [date] August 2012 to [date] November 2012. The tribunal also finds that there was no non-compliance by the applicant in the way described in the s.107 notice in relation to information provided about the applicant’s name. The tribunal does find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice in relation to the applicant’s claims regarding his and his family members’ citizenship and claims to be unable to obtain identity documents and other rights and services resulting from their statelessness.
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.

Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
The correct information
The correct information is that the applicant, his spouse and children, are Iraqi citizens and are not stateless.
The content of the genuine document (if any)
This prescribed circumstance is not relevant in the present case.
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
In his RSA statement of claims (which was adopted in his protection visa), the applicant claimed that he was denied access to identity documents and various rights due to being stateless, that he and his family experienced ongoing and persistent discrimination amounting to persecution as Faili Kurds, and that the applicant’s [sibling] and [relative] were abducted by local Sunni Wahabis who had asked about the applicant.
There are two decisions before the tribunal, both made by the same departmental delegate, one being the RSA decision record ([in] May 2010) and the second being the protection visa decision record (‘PV decision record’, undated).
In the RSA decision record, the delegate accepted that the applicant was stateless and therefore disadvantaged due to his inability to obtain Iraqi citizenship and that he was unable to access services and was restricted in his movements as a result but did not accept that the applicant’s inability to obtain citizenship was for any Convention reason. The delegate found that any disadvantage to which the applicant was subject to directly attributable to the non-discriminatory implementation of Iraqi citizenship laws.
The delegate found, however, that the applicant’s claims regarding his [sibling] and [relative]’s kidnapping in 2009 to be plausible on the applicant’s evidence and country information and accepted that it had occurred. The delegate found it plausible that the applicant’s family have been targeted by non-state agents in Baghdad, that it is more likely than not that the [sibling]’s kidnapping was motivated by race (Faili Kurd), religion (Shia Islam) or both. The delegate found that the information before it indicated that the applicant would be unable to avail himself of state protection and that it would be unreasonable to relocate.
The PV decision record, which contains a significant deal less discussion of the applicant’s claims, lists the applicant’s race and religion as the essential and significant reasons, as opposed to his citizenship (or lack thereof).
Given this information regarding the basis of the applicant’s protection visa grant, the tribunal is not satisfied that the decision to grant the applicant a protection visa was based, wholly or partly, on incorrect information provided by the applicant regarding his and/or his family’s statelessness. The tribunal is therefore not satisfied on the evidence before it that, had the correct information been provided by the applicant to the department, this would have resulted in the applicant being found not to be owed protection obligations and not being granted a protection visa. It gives weight to this factor in support of not cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
In his written response to the NOICC, the applicant advised that he never intended to lie to the department but that, as a Kurdish Faili, he felt that he was a stateless person. However, at the hearing the applicant advised that when he was detained on [location], he (the only Faili Kurd from Iraq) and Faili Kurds from Iran got together and decided to say that they were stateless to get their matters dealt with quickly and avoid being kept in detention for too long. The tribunal finds the applicant provided incorrect answers in the belief that he would achieve a quicker and favourable migration outcome.
The present circumstances of the visa holder
The applicant worked as a [occupation] for [number] years but had to stop due to his [medical condition]. He has been working for a company, [name], for over a year and provided a letter of support from his employer indicating that the applicant has been working as a [occupation] since [in] February 2016 and that he is honest, trustworthy and reliable.
The applicant also advised that his psychological status is not good and that he has been prescribed anti-depressants but he has not taken them. He is living on his own in a small unit.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant applied for Australian citizenship, which was approved [in] July 2014 ad his citizenship ceremony was due to take place [in] December 2014 before the department advised him that cancellation of his protection visa was being considered. There is no evidence before the tribunal regarding whether the applicant made any reference to being stateless in his citizenship application.
As noted in the NOICC, the applicant provided correct information and documentation in relation to his citizenship and his family’s in his wife’s [permanent] visa application [in] March 2013.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The applicant provided incorrect answers in his protection visa application [in] May 2010 (and in the RSA statement [in] April 2010 that was adopted in the applicant’s protection visa application). A period of almost seven years has elapsed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant advised that he has not breached the law or done anything wrong since arriving in Australia. Information obtained from departmental records show, however, that the applicant appears to be currently unlawful and has not applied for a bridging visa since the cancellation of his protection visa. The applicant did not appear to be aware of this at hearing.
Any contribution made by the holder to the community.
The applicant advised that in his work as a [occupation], he [details deleted]. He also worked for a voluntary organisation in [suburb] for one week in 2012 as a [occupation].
Other relevant considerations
The tribunal has considered Australia’s international obligations, specifically whether the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.
The tribunal notes that the ITOA undertaken by the department (dated [in] September 2016 did not accept that the applicant fled Iraqi in 2009 because he had been discriminatorily targeted by Sunni Wahabis, nor did it accept that the applicant faced either a real chance of persecution or real risk of significant harm due to the applicant’s Faili Kurdish ethnicity. The ITOA decision maker did, however, find that the applicant was owed non-refoulement obligations by Australia under the complementary protection provisions because he faced a real risk of significant harm from Sunni extremists, in particular the so-called Islamic State, as a Shia Muslim, would not be able to reasonably relocate and would not be able to obtain protection from Iraqi authorities such that a real risk of significant harm would not arise.
Having considered the country information before it and contained in the ITOA decision, the tribunal agrees with this assessment. It places great weight on the department’s own assessment that the applicant is owed non-refoulement obligations by Australia and that the applicant’s removal from Australia, which would be a consequence of his visa cancellation, would be in breach of those obligations.
The tribunal further notes that the [date] September 2016 letter received by the applicant from the department regarding his ITOA (provided by the applicant to the tribunal) advises that the applicant will not be asked to leave Australia and that the department will not make arrangements to remove him while he continues to engage Australia’s non-refoulement obligations. It appears from departmental records that the applicant does not currently hold a bridging visa after his protection visa was cancelled. The applicant will then be subject to detention, subject to any arrangements made by the department. As the holder of a visa that has been cancelled, the applicant will be barred from applying for any further visas onshore, apart from a very limited range of visas, by operation of s.48 of the Act. Given that the department has stated it will not make arrangements to remove him while he continues to engage Australia’s international obligations, there is a real possibility that the applicant may be subject to detention and that it may be indefinite. The tribunal gives this consideration appropriate weight.
While the tribunal acknowledges that the applicant knowingly provided incorrect answers in relation to his citizenship status and that of his family members as well as in relation to claims of being unable to obtain identity documents and other rights/services resulting from their statelessness, the decision records before it indicate that the decision to grant the applicant a protection visa was not based wholly or in part on the incorrect information. Moreover, the tribunal places significant weight on the department’s own assessment that the applicant is owed non-refoulement obligations, which his removal from Australia would breach, and on the mandatory legal consequences of potentially indefinite detention if his visa was cancelled. While the tribunal also holds concerns regarding the applicant’s current unlawful status since the cancellation of his visa, given the above factors, the tribunal finds that the applicant’s visa should not be cancelled.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Magda Wysocka
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)     stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)     visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2017] AATA 380

28 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies