1621699 (Refugee)
[2018] AATA 726
•1 March 2018
1621699 (Refugee) [2018] AATA 726 (1 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621699
COUNTRY OF REFERENCE: Iran
MEMBER:Denis Dragovic
DATE:1 March 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 01 March 2018 at 9:24am
CATCHWORDS
Refugee – Cancellation – Protection visa – Iran – Claimed to be an undocumented Faili Kurd – Incorrect information – Held a genuinely issued Iranian passport – No mitigating factors – Acknowledges that the applicant will face hardship upon return – Social group – Returnee from a western country – May reapply for a visa offshoreLEGISLATION
Migration Act 1958, ss 5J, 46, 46A, 97, 101, 102, 103, 104, 105, 107, 109, 140, 189
Migration Regulations 1994 r 2.41 Schedule 2
CASES
Goundar v MIBP [2016] FCA 1203
MIAC v Khadgi (2010) 190 FCR 248
SZBQJv MIAC [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZWAP v Minister for Immigration [2015] FCCA 511
WZARV v MIBP [2015] HCA 22Any 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 delegate cancelled the visa on the basis that the applicant had informed the Department of Immigration (the Department) that he held a genuinely issued Iranian passport in his identity. As the visa application was granted based upon his original claim of being an undocumented Faili Kurd, and yet he was not stateless but a citizen of Iran, the delegate cancelled the 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 applicant appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).
Section 101: Visa 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
Section 101 refers to the incorrect information being given on the application form. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning, ‘in relation to a non-citizen, … 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’.
The applicant claimed in his application form that he was ‘stateless’ when asked his citizenship and that he had never held any citizenship. In his statutory declaration he stated that he was a stateless Faili Kurd, had lived in Iran illegally his whole life and that he has no rights for that reason. He claimed that he did not have the right to attend school, get a job or access health care for the reason of being stateless. He wrote that he feared to return to Iran for the reason that because he is Faili Kurd and stateless he will face imprisonment, torture and severe discrimination.
At his [April] 2016 Australian citizenship interview the applicant was asked whether he had an Iranian birth certificate, to which he said that he did, along with a genuinely acquired Iranian passport in his own name. At that interview he stated that his parents were born in Iraq but later moved to Iran and that they subsequently acquired Iranian citizenship.
At the Tribunal hearing the applicant reiterated his position that he was a citizen of Iran and had possessed national identity documents.
As the applicant has admitted to providing incorrect information as described in s.101(b) the Tribunal finds that there was non-compliance 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: ss.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. 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’s considerations
The correct information (related to what is in question)
The correct information was provided by the applicant and that is that he is a citizen of Iran. I place considerable weight in favour of exercising the discretion to cancel the visa.
The content of the genuine document (if any)
As no document was provided there is no genuine document to consider.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document
The argument was put to the Tribunal that even if the correct information had been provided by the applicant to the Department when it was considering his case, his protection claims would have been approved. In a substantial and very well prepared submission dated 22 January 2018 the representative presented arguments which I will summarise and consider herewith.
In considering the question of whether the decision to grant a visa or immigration clear the visa holder was based wholly or partly on the incorrect information, the representative argued that had the delegate had the correct information the outcome of the decision would have been the same, namely that a protection visa would have been granted anyway. This approach does not align with the current regulations and case law.
Regulation 2.41(c) was amended effective 12 December 2014. In its earlier form it read:
the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document.
Subsequent to the changes and as is applicable to this application, r.2.41(c) reads:
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document.
Justice Street noted in SZWAP v Minister for Immigration[1] at [10] that the change narrowed the scope of the decision making to whether the protection visa was based wholly or partly on incorrect information. The argument made by the representative that consideration should be given by the Tribunal to what the outcome of a protection review would have been had the correct information been available is an incorrect reading of the regulation and aligns with the relevant regulation as it was rather than as it is.
[1] SZWAP v Minister for Immigration [2015] FCCA 511
The role of the decision maker is to conclude whether the decision to grant the visa was based wholly or partly on the incorrect information. In this case I find that it was based wholly on the incorrect information and as such I place considerable weight in favour of exercising the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant has stated that he was ‘young and naïve’ (folio 136 [file number]) and ‘young and scared’ (folio 139 Tribunal file 1621699) so he did what everybody else was doing and saying. He also wrote that he was told when he had arrived at [Detention facility 1 in Australia] that people there had said that if he didn’t say the right things he’d be sent back. He claimed that he didn’t know what a refugee was at that time and so as he was ‘only’ [age] years old he did what they told him (folio 138b Tribunal file 1621699). He didn’t want to be sent back because he feared returning.
At the hearing he explained that there are two circumstances for why people come to Australia: those who choose to come or those whose circumstances force them into coming. He decided to come to Australia when his life situation had become very hard for him and his family. He was scared when he arrived at [Detention facility 1] because his father had borrowed money, equivalent to three years’ work ($[amount]) to facilitate his trip. He didn’t know anyone and was told by other Iranians that if he told the truth they would send him back. So he lied. It is claimed that he was particularly vulnerable at that time.
While I accept that the applicant was relatively young and naïve as claimed I do not accept that this is a mitigating factor that goes to partially explaining why the non-compliance occurred. He entered Australia through the help of people smugglers for the purpose of circumventing Australia’s border controls. He was an adult at the time. Choosing to follow what others told him to deceive the government is the direction the applicant chose to take when he left Iran regardless of his claimed immaturity. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
The present circumstances of the visa holder (children, medical treatment …)
The applicant explained that he has had to work to be able to repay the loan that paid for his passage and support his brother who had lost his job. I place no weight in favour of exercising the discretion to cancel the visa.
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 Tribunal is not aware of any breaches. I place no weight in favour of exercising the discretion to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
No other instances of non-compliance by the visa holder are known to the Tribunal. I place little weight against exercising the discretion to cancel the visa.
The time that has elapsed since the non-compliance
The applicant came to Australia in [October] 2009. The applicant was granted a protection visa on [date] December 2009. I place considerable weight against exercising the discretion to cancel the visa for the reason of his lengthy stay in Australia and integration into society by way of his employment.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has not been involved in any breaches of the law known to the Tribunal. I place little weight against exercising the discretion to cancel the visa.
Any contribution made by the holder to the community
The applicant could not reference any contribution to the community other than that he hasn’t broken any laws, is working and paying taxes. A letter of support was received from the applicant’s [employer]. He noted the applicant’s skills and abilities as well as being a reliable and honest person. I place no weight in favour of exercising the discretion to cancel the visa.
Other considerations
The prescribed circumstances as listed under r.2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under r.2.41.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations
Once the correct information is considered alongside other claims the applicant fears returning to Iran for the reason of being an Iranian Faili Kurd and someone who has sought asylum in Australia.
Serious harm for being an Iranian Faili Kurd
The applicant claims that the harm he faces arising from being an Iranian Faili Kurd is such that it meets the threshold of serious harm. He argued that there is entrenched and intergenerational poverty for people such as him, irrespective of whether he has documentation. He claimed that his family were forced into a particular level of the labour market and have remained at that level and that these circumstances are unique to Faili Kurds. He said that everyone has a right not to live under a bridge.
The representative has submitted arguments that can be summarised as follows. Breaches of rights encapsulated in the International Covenant on Economic, Social and Cultural Rights (the Covenant) may form persecution. The basis of this argument lies with academic scholarship on refugee law, particularly from the view presented by Professors Hathaway and Foster. This view divides human rights into three tiers: those rights which are fundamental or non-derogable, those that are derogable under extreme circumstances and the third tier being those expressed in the Covenant. The argument put by the representative, which is based upon the work of Hathaway and Foster, is that the third tier rights are no less a basis upon which to recognize serious harm. The representative then argued that the High Court in MIBP v WZAPN; WZARV v MIBP [2015] HCA 22 did not reject the ‘Hathaway’ approach.
Based upon this foundation the case was put that the applicant’s socio-economic and cultural rights will be threatened such that it amounts to serious harm. In a submission to the Tribunal the representative specifically referenced three articles from the Covenant – Article 6: right to work, Article 7: right to non-discrimination and Article 11: right to a decent standard of living – as those which will be breached such that he will face serious harm.
I have read the referenced cases and reviewed the writings of Hathaway and Foster. While the construction of the argument adopted by the scholars can be compelling when looked at from a particular perspective, the position of the Tribunal ultimately is one that is guided by the law and its interpretation by the courts.
As such the basis upon which I begin my consideration of the argument put forward by the representative is with the Act. Sections 5J(5)(d), (e) and (f) provide a non-exhaustive list of the type and level of harm that will need to be met to amount to serious harm. I reproduce them here:
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Common to each of the three is the term, ‘threatens the person’s capacity to subsist’. Case law has provided guidance on this. Subsistence, according to Tamberlin J, denotes ‘the ability to continue to exist or remain in being’ (SZBQJv MIAC [2005] FCA 143). Furthermore, Greenwood J added, ‘the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being’ (SZIGC v MIAC [2007] FCA 1725).
In considering whether being an Iranian Faili Kurd threatens a person’s capacity to subsist I turn to country information to establish the conditions into which the applicant would be returning to and whether they amount to what Tamberlin and Greenwood JJ defined as the meaning of the term in ss.5J(5)(d), (e) and (f).
I read to the applicant at the hearing from the DFAT thematic report:
3.6 Following discussions with a range of credible non-government sources, DFAT is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity.
I put to the applicant that country information suggests that Iranian citizens of Faili Kurd ethnicity are entitled to access all of the services that are available to any other Iranian citizen.[2] I asked how his situation was different to the wider Faili Kurd population. He said that his situation is the same and because of restrictions in Iran there is no opportunity for people to find governmental or administrative jobs.
[2] Department of Foreign Affairs and Trade, DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 at [3.53].
Country information provided by the representative within their submission to the tribunal from Amnesty International offers an alternative view. Relevant to the applicant’s claims the information within the report provided said that rights have been curtailed, economic neglect has entrenched poverty and that dozens of Kurds were arrested without warrant for a real or perceived affiliation with the Kurdish Democratic Party.
Other country information submitted by the representative was not relevant to the applicant’s circumstances. For example, information was provided on the disproportionate number of killings but I find that none of those categories listed (Kurdish prisoner, a border courier or to be killed by landmines) apply to the circumstances that the applicant would find himself in in the reasonably foreseeable future.
Further information was provided on the most recent protests which noted that the Iranian government had used the protests to militarise the Kurdish areas with some confrontations occurring. I put to the applicant that there is no evidence to suggest that he would be politically involved were he to return and as such no evidence to suggest that he may find himself in protests that may lead to him facing such harm. He responded that he hasn’t been in Iran for eight years and that many things have changed and as such he doesn’t know. I find that in the reasonably foreseeable future were the applicant to return to Iran he would not become politically involved.
At the hearing we discussed specific harm that he claims to face, namely, an inability to earn a subsistence living, physical harm on the account of unprotected physical work and untreated medical issues for which treatment is unaffordable.
Inability to earn a subsistence living: The applicant said that he could find a job eventually. He is [age] years old now; if he returned to Iran he said that he would have to start from scratch looking for work. It would take him another 10 years to get to where he is today. I put to him that he said that it would take three years to repay his father’s loan of $[amount] were he to return; that means that he could save $[amount] per year which seems more than a subsistence living. He responded that it was upon the presumption that he and his brother and father would also be working.
The applicant has claimed that he can’t find work in the public sector or administrative work in general. As far as an ability to maintain a subsistence living is concerned I find that the type of work is not relevant. The relevant matter is whether he can find employment such that he does not face economic hardship such that it threatens his capacity to subsist.
I have considered these claims along with country information, including Amnesty International’s view of economic neglect leading to entrenched poverty, and find that the circumstances the applicant will face are not dissimilar to those prior to his departure which saw both him and his father finding employment. As such I find that he will be able to find work and that the work he finds will allow him to earn a subsistence living. As such he does not face a real chance of serious harm or a real risk of significant harm for reasons of being unable to find adequate work.
Physical harm on the account of unprotected physical work: The applicant has claimed through submissions that the type of work he has undertaken in factories is inherently risky and undertaken through the informal economy. The current economic situation has led to a further undercutting of employment opportunities that in turn reduces levels of protection.
At the hearing he stated that he can’t work as a [occupation] because there isn’t a demand for such work. He claims that his level of English isn’t sufficient to be able to find employment based upon it. While I accept that there is a real chance of the applicant needing to find physical work to subsist, I do not accept that there is a real chance that the type of physical work he will undertake will be such that it will lead to him facing serious harm.
Untreated medical issues for which treatment is unaffordable: The applicant told the tribunal that his sister’s husband [has a medical condition] and argued that in the reasonably foreseeable future if he develops a condition treatment will be unaffordable. I read to him the following country information:
[I]n 2014, the Iranian government announced a new program to extend health insurance coverage to all Iranians, in the fashion of “Obamacare” in the United States. Under the new Tarh-e Salaamat health plan, the state pays for 90% of patients’ medical bills in hospitals.[3]
[3] >
He responded that it is true that progress has been made in establishing more accessible health care, but politicians say things that don’t always eventuate. Until he finds himself in that situation it is hard to comment on the veracity of the information.
I find that the Iranian government provides sufficient health care to all Iranians such that the applicant would not face a real chance of serious harm were he to fall ill.
I have also considered whether the applicant could face harm by being associated with the Kurdish Democratic Party. While the applicant’s Kurdish ethnicity does expose him to the possibility of having the political opinions of the Kurdish Democratic Party imputed onto him I find that him not being politically active reduces that risk to a remote chance such that I find he will not face a real chance of serious harm or a real risk of significant harm.
I have also turned my mind to other forms of serious harm including but not limited to those listed in ss.5J(5)(a), (b) and (c) and find that it does not arise from the evidence that the applicant faces a real chance of serious harm in the reasonably foreseeable future.
I have also considered whether there is a real risk of significant harm. The statutory list of the different forms of significant harm is exhaustive. I have also turned my mind to considering whether the act or omission by the state of the provision of services and support as claimed by the applicant amounts to significant harm. In reviewing each of them and bearing in mind the act or omission I find that the applicant does not face a real risk of significant harm.
Serious harm for being a returnee
The applicant may belong to a particular social group, which in turn could lead to the applicant having a well-founded fear of persecution. The social group is Iranians who have sought and/or been granted asylum in western countries.
The applicant confirmed that there is no reason why he wouldn’t be able to get another Iranian passport as his current one had expired.
Country information states that ‘Iranians who return with their passports will not face any problem at the airport when they return after a longer stay abroad.’[4] The applicant responded that what happens is very different to what is said.
[4] Department of Immigration and Border Protection, Issues Paper: Iran: Returnees, April 2015 at p 20.
I have also considered the situation of the applicant returning with the assistance of the International Organization for Migration (IOM) as a voluntary returnee. I read to the applicant the following country information:
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians.
The applicant had no comment.
The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[5] Based upon the Iranian government’s position when turning my mind to considering his claims, I do so upon the basis that if he were to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.
[5] ‘Iran would welcome back asylum seekers 'with pride', Iranian Foreign Minister says’, 16 March 2016 available at
Based upon country information available on the circumstances of returnees[6] I find that were the applicant to return to Iran voluntarily he would not face a real chance of serious harm or a real risk of significant harm for the reason of being a failed asylum seeker from a western country.
Cumulative
[6] Department of Foreign Affairs, DFAT Country Information Report: Iran, 2016 p 28.
I have also turned my mind to considering his circumstances cumulatively, namely whether being a returnee from a western country along with being a Faili Kurd would compound the harm he faces. I find that it does not increase the chance of serious harm or the severity of the harm and similarly does not increase the risk of significant harm or the severity. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
For the reason that the applicant does not face a risk of refoulement and in turn a breach of Australia’s international obligations were he to return to Iran. I place no weight against cancelling his visa.
Additional considerations
The Department’s guidelines set out other additional matters that should be taken into account where relevant. This includes whether there are other persons whose visas may be cancelled because they are family members, mandatory legal consequences to a cancellation decision, for example detention, as well as whether indefinite detention is a likely consequence of the cancellation decision.
I have considered whether there are other persons in Australia whose visas would, or may, be cancelled because they are members of the same family unit. In this situation, the applicant does not have any family members in Australia and as such the cancellation of his visa will not directly lead to the cancellation of others’ visas. I place no weight in this regard.
I now turn my mind to consider whether there are provisions in the Act which prevent the applicant from making a valid application for any visa without the Minister personally intervening. In this applicant’s case these are ss. 46(1), 46A(1) and 48A. When exercising these provisions the applicant will not be able to make any further lawful applications, nor be issued any further visas other than those prescribed or with Ministerial intervention and due to s.189 he may be detained. Although the applicant is subject to a bar preventing further applications while onshore I place little weight against cancelling the visa in this regard as the applicant has not identified additional claims that would put him at risk were he to return to Iran. As such the applicant can return to Iran and then subsequently return to Australia and reapply for a protection visa.
Were he to be detained the applicant will have the option of returning to Iran. If he chooses not to, involuntary return becomes a possibility. The fact that the Iranian regime does not accept involuntary returns is a matter at the forefront of my mind. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention due to the Iranian regime’s refusal to accept involuntary returnees. In this case it does not. The applicant is an Iranian citizen, and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm, whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes in deciding whether to return voluntarily rather than the outcome of this decision.
I have also considered the submission of the representative at the hearing, namely to consider Justice Robertson’s reasoning in Goundar v MIBP [2016] FCA 1203 with regard to considering harm that does not amount to serious or significant harm.
In having considered whether the applicant’s return to Iran would breach Australia’s international obligations I concluded that it would not. Nevertheless, I accept that the applicant will face hardship upon return as described at the hearing and compiled in his statutory declaration dated [January] 2018 in which he recanted earlier claims and provided a detailed submission on the life he would return to. Based upon the information provided I accept that the circumstances to which he would return would be challenging. I accept that he would have to start afresh and would face hardship. It will not be an easy life to return to after eight years in Australia. But it is not such that substantial weight should be given relative to the other aspects of this case which have been considered above. For this reason I give little weight against cancelling the visa for the reason of the hardship that the applicant will be returning to.
There are no other matters that I deem relevant to consider.
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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Denis Dragovic
Senior MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
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