1702014 (Refugee)

[2017] AATA 1609

1702014 (Refugee) [2017] AATA 1609 (5 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702014

COUNTRY OF REFERENCE:                  Libya

MEMBER:Jane Marquard

DATE:5 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa-holder’s Subclass 866 (Protection) visa.

Statement made on 05 September 2017 at 9:07am

CATCHWORDS

Refugee – Protection visa – Libya – Afro-Arabic ethnic group – Imputed political opinion – Fears harm due to ethnicity – Deemed pro-Gaddafi supporter – Credibility issues

LEGISLATION

Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Gido-Christian v MIAC [2007] FMCA 825
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

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

MIGRATION BACKGROUND

1. The visa-holder, who is a citizen of Libya, was born in [Town 1], Libya, in [year]. He is now [age] years old.

2. He first arrived in Australia [in] December 2008 as the holder of a [Student] Visa.

3. He lodged an application for a class XA Subclass 866 Protection Visa [in] March 2012.

4. He was granted a Subclass 866 (Protection) Visa [in] July 2013.

5. [In] July 2016 and [December] 2016 the Department of Immigration (the Department) notified the visa-holder that it intended to consider cancelling his Protection Visa. The visa-holder provided responses in letters dated [in] August 2016, [October] 2016, [December] 2016 and [January] 2017.

6. [In] February 2017 a delegate of the Department decided to cancel the Protection Visa under s.109(1) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the visa-holder did not comply with section 101(b) of the Act.

7. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

8. The visa-holder provided submissions to the Tribunal dated 4 July 2017, and appeared before the Tribunal on 12 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The visa-holder was represented in relation to the review by his registered migration agent.

9. For the reasons set out below the Tribunal has concluded that the decision to cancel the visa-holder’s visa should be set aside and a decision substituted not to cancel the visa.

   VISA-HOLDER’S BACKGROUND

10. The visa-holder claims that he belonged to the Afro-Arabic ethnic group. He worked as [an occupation] in Libya in [Town 2], before coming to Australia for [studies] in [a subject].

11. According to the Departmental decision record, his father passed away when he was [age] years old and the family moved from [Town 1] to [Town 2].

    OVERVIEW OF LAW

12. 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.

13. 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.

14. Extracts of the Act relevant to this case are attached to this decision.

    THE SECTION 107 NOTICE

15. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act. Section 101 provides that:

    A non-citizen must fill in or complete his or her application form in such a way that:

    b) no incorrect answers are given or provided.

16. The non-compliance referred to in the section 107 notice, referred to answers in form Part C of 866, “Application for a Protection (Class XA) Visa” (the application). In particular the following questions and answers are referred to:

    “5. In response to question 42 of the application which asks “Why did you leave that country?” the visa holder responded:

    “I originally left Libya to undergo [studies] in Australia. While in Australia the wildly publicised uprising unfolded in Libya. The subsactance(sic) removal of Gaddafi has now put me in a minority group. It appears my minority group is subject to persecusion and discrimination.”

    6. In response to question 43 of the application which asks “What do you fear may happen to you if you go back to that country?” the visa holder responded:

    “It has been revealed to me by reliable sources in Libya that my minority group is subject to ill treatment hence my reluctance to go back to Libya. Since the removal of Gaddafi there remaince (sic) an ideological divide between anti-Gaddafi and pro-Gaddafi supporters. However, my ethnicity is deemed pro-Gaddafi and belong to the minority. So, in all likelihood I will be the victim of perscusion upon returning to Libya. To compound the problem there exists an ethnic divide.”

    7. In response to question 44 of the application which asks “Who do you think may harm / mistreat you if you go back?” the visa holder responded:

    “The militias who considered themselves as “rebels”. There is no doubt some of them have relatives who were killed by Gaddafi forces but that does not given them right to abduct and kill people under this cover. Unfortunately my group is black and considered as Gaddafi marseners (sic) who came Africa to support him. Therefore, I will be targeted by anti-Gaddafi people.”

    8. In response to question 45 of the application which asks “Why do you think this will happen to you if you go back?” the visa holder responded:

    “It is widely publicised both nationally and internationally that the people who have assumed the authority have repeatedly shown contempt toward the perscusion and discrimination of my group or Gaddafi supporters especially in [Town 3] and down south where the largest Gaddafi supporters live. Personally I have [number] brothers were with Gaddafi’s forces who I haven’t heard any news about them and I believed they are dead. Also the militia who is running the area believes the Gaddafi regime sent me to here to educate me to work for them when I come back. Another fact that will put my life in danger if I go back, is that I am a member of an organisation [details deleted], this makes the militia put my name in their black list to find me and other members especially who fight with Gaddafi or have relatives who did so.”

    9. In response to question 46 of the application which asks “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the visa holder responded:

    “The authorities in Libya may not be able to protect me because there is no strong government in the country especially in the area where I am living. Also, the militia or who considered themselves as rebels refuse to give their weapons to the weak government and running the area under complete control. Because of my dark skin colour and accent I can be easily distinguished and targeted even if I would go and hide to big cities my documents such as ID and passport will the problem because of the place of issue them. The strongest evidence for this what is happening right now to the people from [Town 3] who have been forced to leave their city after destroying their houses and let them live in schools and others building in Tripoli and Benghazi and the government doesn’t and will not do anything because considered us as green families as Gaddafi named his regime and revolution the green revolution.”

17. The delegate noted that [in] September 2013, two months after the visa-holder was granted the visa, he departed Australia. On his outgoing passenger card he stated that his intended length of stay overseas was [number] days and that he would be staying in [Country 1]. [In] April 2014 he arrived back in Australia and declared on his incoming passenger card that he had spent most of his time in [Country 2]. When interviewed by an officer from the Department at the airport he advised that he had travelled to [Town 2] (which is in Libya) to visit his mother.

18. [In] April 2015 the visa-holder travelled out of Australia and arrived back [in] May 2015. He stated that he had been in [Country 1]. Upon arrival he was interviewed by an officer from the Department and found to be in possession of a Libyan passport, which had been renewed [in] 2015. The passport contained stamps indicating that he had entered Libya [in] October 2013 and departed [in] October 2013. A further arrival stamp indicated that he had entered Libya [in] November 2013 and departed [in] April 2014.

19. The incorrect information identified by the Department was that in the answers specified he had claimed that he could not return to Libya as he feared persecution from the new regime and militia groups, as he was perceived to be sympathetic to the former Gaddafi regime. He also stated that he was easily identified and targeted due to his physical appearance and that the authorities could not protect him. The Department noted that he had voluntarily extended his Libyan passport and travelled back to Libya for approximately [number] months, shortly after he was granted his protection visa without any apparent issue, under his true identity. This led the Department to consider that he did not hold the claimed adverse profile as stated by him in his protection visa application.

20. The Department stated that the claim that he feared harm from the new regime and militia groups was fundamental to the determination that he was a person to whom Australia owed protection obligations. The Department concluded that, as it appeared he did not hold the adverse profile claimed, he had provided incorrect information in responses to questions 43 to 46 as follows:

    • In response to question 43 the visa holder stated that he feared he would be persecuted if he returned to Libya due to his ethnicity and the perception that his ethnic group was sympathetic to the Gaddafi regime. I consider this response to be incorrect as the visa holder has since returned to Libya for a [number] month period without any apparent issues which suggests he did not hold the claimed adverse political profile at time of his protection visa application.

    • In response to question 44 the visa holder stated that he would harmed by the anti-Gaddafi militias. This information is incorrect because he has since returned to Libya for [number] months without apparent harm. This suggests the visa holder did not hold the claimed adverse political profile at time of his protection visa application.

    • In response to question 45 the visa holder stated that he believed he would be persecuted as he is a member of an ethnic group that is perceived to be sympathetic to Gaddafi. I consider this information is incorrect because he is not at risk of persecution as is evidenced by him returning to Libya and staying for [number] months without apparent harm. This suggests the visa holder did not hold the claimed adverse political profile at time of his protection visa application

    • In response to question 46 he stated that he did not believe the authorities would protect him as he is perceived to be sympathetic to Gaddafi. This information appears to be incorrect as the visa holder has since returned to Libya for [number] months without apparent harm.

21. The Department therefore concluded that he had not complied with section 101(b) of the Act.

    RESPONSES OF VISA-HOLDER TO SECTION 107 NOTICE

22. In responding to the section 107 notice, the visa-holder challenged the validity of the section 107 Notice on the basis that it did not contain particulars about specific answers alleged to be incorrect. The visa-holder stated that no evidence was provided that he did not have a well-founded fear of persecution as at the date of application. He said that there was no condition 8559 attached requiring ministerial approval to return to a visa holder’s country. The visa-holder said that at the time of application he had a deep fear of severe persecutory treatment if he had to return to Libya. All his responses in his application of March 2012 were correct.

23. The visa-holder said that he left the country to visit [Country 1] to spend time with his brother for [a period of time]. They called his mother as they usually do every Friday at 9pm. She was crying and asked them to spend time with her before she died. She would not tell him more. He knew that seeing him would help her mentally and medically. He is very close to her. So he decided to go back to Libya even though it was dangerous. He made contact with a few friends to help him go to Libya without being caught. He was to arrive at a certain time and someone was going to meet him and put a stamp on his passport without going through customs. That is what happened. His mother had aged, and his visit had a positive impact. His grandfather passed away the day after he arrived. His mother and sisters went to his grandfather’s house, and he was able to hide in his family home. He then went to [Country 2] as it was safer. Two days after arriving, he heard from his sister that his mother had fallen over and had injured her lower back and hand, and had been taken to hospital in Tripoli. He contacted some men to help him get back into Libya. He was told to arrive after 8pm and he went up to the same officer who had helped him recently, who “did the rest”. He saw his mother for two days. He decided to leave but could not get hold of the officers who had helped him so got stuck in Tripoli and his life was in extreme danger. He did not know Tripoli well and had to pay his way to safe places. Another officer helped him use an aeroplane which was safer. It took him three months. It was more dangerous as Zentan militia had taken over the airport. There was a protest which meant the whole plan had to be cancelled so he ran away back to [a district]. Then he decided to risk travelling by car to reach [Country 2], which took another three months to arrange so he could find a driver he trusted. He moved around different [places], where he had some friends who helped him be safe. He arrived at a place in Tripoli [in] April 2014, with other people. They arrived at dawn at the border, and they pretended to be asleep. The driver took the passports as he knew an officer who worked there.  It was very stressful. In [city] one officer saw that his passport was issued in Australia and asked him who [name] is and he was afraid. Having an Australian passport helped him.

24. He went on to say that he had booked a ticket to [City 1 in Australia], but when he tried to check in to the [Country 2] customs they said that his passport was not recognised, as he had mistakenly put in his Libyan passport. So he had to wait for another flight three days later. He told the immigration officer in [City 1 in Australia], that he had been in [Country 2]. He was asked if he had been in Libya, and he said he had. He said he had decided to keep his Libyan passport valid in case anything happened. He just posted the passport to them, and waited. He is sure he told the officer in [City 1 in Australia], that he was in Libya twice and he saw his passport.

25. The visa-holder provided a medical report dated  [October] 2013 from [a medical centre], for [the applicant’s mother], stating:

    “Fall that caused slip cartilage and tightness in the muscle of the right shoulder.

    The patient needs Medical Leave of 20 days from [date].11.2013

    Signed and stamped by: Doctor [name]”

    DELEGATE’S COMMENTS ON VISA-HOLDER’S RESPONSE

26. The delegate noted that the visa holder departed Australia on the evening of [September] 2013, a Sunday and therefore would have arrived in [Country 1] on the morning of [September], a Monday. The arrival stamp on his passport states that he entered Libya on [date] October, which is a Wednesday. As he was not present in [Country 1] on a Friday, he would not have been able to speak to his mother from [Country 1] on a Friday as claimed.

27. The delegate also noted that details had not been provided on how he was able to make arrangements to bypass security and customs at an international airport in such a short period of time. According to the Department, available country information states that government security forces and militias have been stationed at Tripoli and Benghazi International Airports and that anyone who may be a target for persecution is likely to encounter these forces at the airport.[1]

    1 UK Home Office, CIS2F827D92090, "Actual or perceived Gaddafi clan members-loyalists", UK Home Office, 19 August 2014,

28. The delegate also stated that the visa holder had not explained why he was carrying his Libyan passport when he only intended travelling to [Country 1].

29. The delegate also noted that he departed Libya [in] October 2013 which was a significant time after the one week he claimed he stayed there.

30. The delegate also noted that he said that he was told to arrive in Tripoli on [date] April 2014 to be driven over the border. However, the stamps on his Libyan passport indicate that he departed Libya [in] April 2014 and arrived back in Australia [in] April 2014.

    EVIDENCE PROVIDED BY VISA-HOLDER AT TRIBUNAL HEARING

31. The visa-holder provided the following evidence at hearing:

    ·    He confirmed that all the answers he gave in his application to the Department were true and correct;

    ·    He was born in [Town 1], but from the age of [age] lived in [Town 2], Southern Libya. His father has passed away. His father had [children] from his first wife, and [children] including the visa-holder from the second wife. The applicant has [brothers], but currently he does not know where they are. He has [married] sisters who live about [number] km from [Town 2]. His mother is living in [Town 2]. The last time he saw his brothers was [in] February 2011 when he visited his family. After this, his brothers were in Tripoli, fighting for Gaddafi’s forces. His mother’s health was adversely affected because of the lack of news. She tried to trace them a few times but no-one was able to find out any news about them. Some people say they are in prison, or dead, but these are rumours only;

    ·    His family supported Gaddafi because they are originally African, and all the African Libyans supported Gaddafi. Since he was born, the only leader was Gaddafi and they had only known him, so supported him. His brothers were in the Revolutionary Guards which supported the regime. There was some suggestion that the visa-holder join, but he did not want to do so because he wanted to study. His father and mother were born in Libya and he does not know where in Africa they came from originally.  His mother was [of a certain] ethnicity. He finished high school in [Town 2]. He then studied [a subject] at [an institute] for [number] years;

    ·    He had no political involvement in Libya, but was part of the student association which supported the ideology of Gaddafi. He was also involved in [Organisation 1]. This organisation [details deleted];

    ·    When he graduated he worked as [an occupation] [and] during this time he was getting the paperwork ready to come to Australia;

    ·    [Town 2] is currently under the control of militias. There is no authority. Most people from that area were supporters of Gaddafi. His mother and sisters are treated like second class citizens, they are not able to get services. The militias know the names of his brothers who were in the pro-Gaddafi forces. His family have suffered verbal mistreatment, but other people have been subject to physical mistreatment. People who are black and pro-Gaddafi in his area, do not move around, they stay home. The jails are full in [City 2], he himself knows someone in prison;

    ·    He was asked about Question 42 in his application to the Department. In that question he was asked why he left, and he said that he left to undertake [studies], however while in Australia, the uprising unfolded and the removal of Gaddafi put him in a minority group which is subject to persecution and discrimination. He confirmed that this answer was correct;

    ·    The visa-holder was asked about Question 43 in his application when he was asked “what do you fear may happen to you if you go back?” He had answered that in all likelihood he would be the victim of persecution upon returning to Libya, based on his ethnicity which was deemed to be pro-Gaddafi. He was asked why he thought at the time he answered the question that he would be the victim of persecution based on his ethnicity. He said that his town was under fire from militias. People in his town were told to go back to their countries of origin, that they were not Libyans;

    ·    The visa-holder was asked about Question 44 of the application. He was asked in that question who he thought would harm him, and he answered it would be the militias who considered themselves as rebels.  He said that he is black and they were considered as Gaddafi supporters. He was asked why at the time he answered the questions he thought that these militias would harm him. He said that, firstly, he was given the scholarship and students who had the opportunity to study overseas were regarded as pro-Gaddafi. Secondly, his colour made people think that he was pro-Gaddafi, particularly because of the area he came from;

    ·    The visa-holder was asked about Question 45 of the application.  He answered in that question, that it had been widely publicised that those who assumed the authority had shown contempt towards Gaddafi supporters. He had [brothers] who were with Gaddafi forces who he believed are dead. When he answered the question, it was his view that these factors would contribute to his persecution. Every person who had anything to do with the previous regime could be affected. People lost their jobs if it was proved that you were a supporter;

    ·    The visa-holder was asked about Question 46 of the application. He had been asked why he thought that the authorities of that country could and would not protect him if he went back. He said that at the time there was not a strong government. During that time they could not protect even ministers of state. There were many kidnappings and he did not feel he would be protected;

    ·    The Tribunal asked him what he meant when he answered the questions by saying that he would be persecuted. He said that supporters had been attacked and kicked out of their homes as they were scared to go home. He said that he feared being killed, imprisoned with hard conditions and torture, being insulted, and that anything could happen;

    ·    [In] September 2013 he returned to Libya, two months after he was granted the protection visa in Australia, and he stayed for [number] months. The Tribunal put to him that it is not consistent with genuine fear of serious harm that a person would return to the place where the source of the fear of death or serious harm is. He responded that his sister told him that his mother had [an illness], and she was crying on the phone, when she was telling him about his mother. Two months after he was granted the visa he wanted to visit his brother who was studying in [Country 1]. He was planning to surprise his mother by calling her by phone from [Country 1]. His mother answered when he phoned. He spoke to his sister. He said that his sister told him that his mother was not feeling well. Asked what his sister said was wrong, she just said she is between life and death. His mother tried to speak to him, but was crying. She said that she would like to see him before she died. He thought he just had to go to Libya because this was his mother. Asked when his sister told him that his mother had [an illness], he said that it was in this same discussion when she said she was between life and death. Then afterwards, when he travelled to Libya, he found out that she had [an illness];

    ·    The Tribunal asked him why, if he had a great fear of returning to Libya, he would not have questioned his sister about the nature of his mother’s illness before returning to Libya.  He said that he would risk anything to go and see his mother. The Tribunal put to him that he had been out of Libya for a long time before he risked returning, so would he have not tried to find out if it was a serious or minor illness. He said that his mother would not tell the truth, but she said that she would like to see him before she died, so he knew it was serious. Asked if he could not question his sister about the nature of the illness, he said that she was crying. He returned because of his mother, who means everything to him. His father had passed away when he was [age] years old, and he had no photograph of his father. He was asked why he did not mention to the Department in his Response to the Notice of Application, that he had spoken to his sister, or that his mother had [an illness], important matters relevant to his return. He said that he was shocked at the decision to cancel his visa, and tried to write the statement six times and could not write everything as he wished. He also had no proof of the [illness]. Asked why there was no medical evidence of the [illness], he said that he has tried to get medical reports but the telephones and internet are not working properly. No-one has been able to help him get the records from the hospital;

    ·    He was asked how, if he suggested in Question 43 of the application that he would be persecuted if he returned, he was not persecuted when he did actually return. In fact, he was able to live in Libya for [number] months. He had defined persecuted as being killed, harmed or imprisoned or otherwise harmed but this did not happen to him. He said that he did not enjoy being in Libya. He did not stay with his mother. He was hiding most of the time and did not go to areas where the rebels were present. He tried to leave three months earlier than he actually did, but he could not leave the country because the rebels had overrun the airport, so he had to leave by paying money to a smuggler to leave by land;

    ·    He was asked about discrepancies in his accounts of the logistics about his return which indicate that he did not intend to go to [Country 1] but really intended to go to Libya. He said to the Department that he travelled to [Country 1] to spend a month with his brother, then impulsively decided to travel to Libya after they jointly spoke to his mother on a Friday while she was home for Friday prayer. They called from his brother’s number and she was very emotional. He then arranged his entry to Libya so that he would arrive at a certain time and meet a certain individual who would be able to allow him to bypass customs. The Tribunal asked him how he was able to make these detailed arrangements when only in [Country 1] for two days. He said that at university he knew students from all over Libya. At Tripoli airport there were militia from the Zentan tribe. He had had students from Zentan boarding with him in the past. So he spoke to a Zentan friend whom he knew, and he told him that he wanted to enter and depart Libya, without being known. His friend knew a high ranking official at the airport. When he arrived at the airport, this friend was there along with the official. He was in the last line, and the friend and an officer took his Libyan passport and had it stamped. There were no official government personnel there, everything was controlled by militias. He used a Libyan passport because he would have been in trouble if they had seen his Australian travel documents, as he would have been questioned about having a foreign passport;

    ·    He was asked why he took his Libyan passport with him when he went to [Country 1] if he was only intending to go to [Country 1]. He said that, when he was given his Australian travel document, he was told to take his Libyan passport with him when travelling, as some countries did not accept his Australian travel document. In fact, he said, this happened to him in [Country 2]. He also went through Tripoli airport when he first travelled to [Country 2], and his friends helped him again in the same way;

    ·    He was asked why this friend and official helped him, especially considering the information he had provided was that there was discrimination against black Libyans who were assumed to be pro-Gaddafi. He said the friend and he were like brothers and had spent four years together, so his friend wanted to support him. Social relations play an important role in their society;

    ·    He received the same assistance when he was departing Libya. He departed twice and returned once. The second time he left he was in contact with the officer directly. The reason he stayed [number] months in the country was because he could not leave safely through the airport, so had to take a risky journey by road through [Country 2];

    ·    He departed Australia on a Sunday, [September] 2013. He would have arrived in [Country 1] on Monday [September]. He entered Libya on [date] October which is a Wednesday. Considering that he was not in [Country 1] on a Friday he was asked why he said they called her on a Friday as usual. He said that this interpretation was the result of a language issue, as he was writing in Arabic. He said that he tried to call his mother at the same time he usually called, which is 9pm, but not necessarily a Friday. At that time it is 1 o’ clock lunchtime which is prayer time for the ladies; and

    ·    While in Libya he was in [a district], which has [number] areas, and he moved from one place to another, and stayed with friends.

1. The representative submitted that at the moment Libya is divided between three areas of power, and no-one can live in peace. The situation is worse now than it was when the applicant left. Returning did not mean that the visa-holder did not have the fears expressed in his application. He has not returned since then, because the situation is too bad. The airports are closed or run by militia. People have to travel through Turkey. There are more than 62 armed militia groups. The visa-holder was chosen to study through the Gaddafi program. Gaddafi used the black Libyans, and now the militia assume they are collaborators.  There is no law, order or police. The US Ambassador was killed, and foreign embassies have left. He also submitted that for a Middle Eastern person, a mother is so important. He thought she was dying and went back without thinking. The fact that he went back did not mean he did not suffer fear. He will be a good member of the society and has always complied with the law and immigration requirements. His partner is [of a certain nationality] and a Christian so could not return. He will be a good Australian and he appreciates the Australian multicultural society very much.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Validity of Section 107 Notice

2. The visa-holder’s representative submitted that the Department did not comply with section 107. It was submitted the section 107 Notice did not contain particulars about specific answers alleged to be incorrect.

3. The Tribunal is satisfied that the Department has complied with the requirements for a section 107 notice. The notification provided in the section 107 notice was sufficient to fairly inform the applicant of the basis upon which cancellation was being considered so that the applicant was adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. Although the delegate referred to answers in the application, which is an extensive document, the delegate did particularise which parts of the application it considered to be incorrect by providing specific question numbers and the information in the questions and answers. The delegate also provided the parts of the answers which it found to be incorrect, and, in relation to each answer, why it considered the answers to be incorrect.

4. The Tribunal is satisfied that particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision have been provided, when reading the Notice in a common sense way (Gido-Christian v MIAC [2007] FMCA 825).

5. 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 in the way described in the Section 107 Notice?

6. The next 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.

7. The visa-holder applied for a protection visa [in] March 2012, was granted the visa [in] July 2013 and departed for Libya two months later, where he remained for [number] months prior to returning to Australia.

8. Given these circumstances, it is understandable that the Department concluded that the visa-holder did not have a genuine fear of returning to Libya on the basis of being of adverse interest to authorities. The Tribunal shares concerns as to why the visa-holder would return to Libya if he had a genuine fear of persecution.

9. There have been different views expressed as to whether a decision by an applicant (or in this case a visa-holder) to return to the country where he or she claims to fear being persecuted is inconsistent with that claimed fear at the time of application.[2] The fact that the visa-holder returned to Libya in itself does not indicate that he made incorrect answers at the time of application. Much depends on the individual facts.

   [2] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

10. In this case, a closer examination of the specific questions and answers referred to in the section 107 notice reveals that the fact that he returned, and for a [number]-month period, does not indicate that the specific answers given were incorrect at the time when made, March 2012.

11. The assessment of the visa-holder’s credibility was of central importance in the Tribunal’s consideration and determination of this matter, thus detailed evidence was taken from him as set out above. Overall, with some exceptions, the Tribunal is satisfied that the applicant’s evidence about the situation in Libya and his fears was internally coherent, consistent with previous evidence and credible when country information is taken into account.

12. Further, in order to examine whether the visa-holder has complied with section 101(b), the Tribunal has carefully considered the submissions made by the visa-holder in regard to his visit to Libya in 2013 and whether this visit indicates that his answers to the questions specified in the section 107 notice, were incorrect.

    Reasons for returning to Libya

13. The visa-holder has submitted that he returned to Libya [in] September 2013 because he was concerned that his mother was seriously ill. He has stated that he is very close to his mother as his father had died when he was young, and that as soon as he heard that she was ill, he felt that he had to return, notwithstanding that this would put him in danger. The representative submitted that under Libyan culture, care of parents is a fundamental value.

14. The evidence about the circumstances of his return has been somewhat unconvincing. He told the Tribunal that, while he was in [Country 1], he spoke to his sister on the telephone, and she was crying and told him that his mother was between life and death. He said that his mother tried to speak to him, but was crying and she said that she would like to see him before she died. Afterwards, when he travelled to Libya, he found out that she had had [an illness]. The Tribunal found it unusual that, if he had a genuine fear of returning to Libya, he would not have found out more about the nature of her illness, before deciding to return there at risk to himself. The Tribunal also questioned the visa-holder about why he had not told the Department that he had spoken to his sister, or that his mother had had [an illness]. He said that he had been devastated at the cancellation of his visa and found it difficult to write the statement, but this does not explain why these matters were not raised. The Tribunal also questioned the visa-holder about why there was no medical evidence of the [illness]. He claimed that he has been unable to get medical reports as the telephones and internet have not been working properly and while this is possible, the Tribunal notes that he was able to locate medical evidence of his mother’s fall.

15. Another discrepancy about the circumstances of his return to Libya, was that he claimed to the Department that he called his mother on a Friday, but when put to him that he was not in [Country 1] on a Friday, he said that this was a problem of interpretation and that he meant that he called his mother at the usual time. This is unconvincing given that he expressly stated that he called on a Friday.

16. His evidence suggests that he intended to leave Australia for Libya, and not [Country 1] as he claimed. He told the Department and Tribunal that he intended visiting his brother in [Country 1] for a month, but that, after speaking to his mother on the telephone while in [Country 1], he spontaneously decided to go to Libya. He claimed that he was able to arrive at the airport at a certain time and meet a friend who knew a high-ranking official, who allowed him through the airport. The Tribunal is not convinced that he would have been able to arrange this in only two days in [Country 1]. According to the Department, available country information states that government security forces and militias have been stationed at Tripoli and Benghazi International Airports and that anyone who may be a target for persecution is likely to encounter these forces at the airport.[3] While it may have been possible to arrange entry unofficially, it does seem unfeasible that he could have arranged this in two days.

    1 UK Home Office, CIS2F827D92090, "Actual or perceived Gaddafi clan members-loyalists", 19 August 2014, accessed 20 August 2017

17. Given the unconvincing nature of this evidence considered cumulatively, the Tribunal is not satisfied that he spontaneously made a trip to Libya, but rather that he planned to do so prior to leaving Australia.

18. As has been discussed in the context of protection visa claims, it is by no means unusual for an applicant to embellish (or in this case, conceal) aspects of evidence in support of their claims. As Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia (1999) 197 CLR 510, “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”.

19. In this case, the Tribunal accepts that the applicant has embroidered aspects of his submissions in order to demonstrate that he returned to Libya only because his mother was sick and as a spontaneous decision, rather than as a planned trip, perhaps to demonstrate that he did not think the decision through. The Tribunal does not take this as an indication that he has provided generally untruthful evidence however. In fact, in relation to his protection visa claims and evidence about what has taken place, the Tribunal is satisfied that he is a credible and consistent witness, and that his evidence is supported by country information. In light of this, the Tribunal is satisfied that he returned to Libya with the purpose of visiting his mother, to whom he is clearly close, although this trip was planned rather than a spontaneous decision. The Tribunal notes that he said that he would “risk anything to see her”, which does suggest that no matter how dangerous Libya was, he would have taken the risk of travelling to see her.

    Length of time in Libya, and remaining undetected by authorities in Libya while passing through borders

20. The applicant remained in Libya for [number] months, a length of time which suggests, prima facie, that he did not have a genuine fear of persecution in Libya, and that authorities were not looking for him as he was able to remain there without being arrested or harmed in any other way.

21. The Tribunal is satisfied however, on the basis of the very detailed evidence provided about his movements and arrangements, that he was able to remain in Libya undetected because he took steps to hide and avoid areas where militias were present, and because he paid officials to assist him move through borders. The Tribunal is also satisfied that he was unable to leave earlier because the militia controlled the airport.

    Were the answers in the application incorrect taking into account the above findings?

22. As set out above, the Tribunal is not satisfied that the applicant was entirely straightforward about the circumstances for leaving Australia to travel to Libya. However the Tribunal is satisfied that he went to Libya to visit his mother, and took steps to enter the country secretly, and remained in Libya for [number] months only because he was unable to find a safe means of departure. The Tribunal is satisfied that he remained hidden in houses and avoided areas where militia were present, and also used contacts to travel and leave the country. The Tribunal is satisfied that in this way he was able to remain undetected by authorities.

23. The Tribunal notes that the fact that he was able to remain undetected by militia, does not in itself indicate that the answers to his questions in his application were incorrect. The fact that he was not located by militia does not indicate that he was not of adverse interest to them. The important consideration here is the state of mind of the applicant when answering these questions in March 2012, and the veracity of the answers provided.

24. As set out in the Section 107 notice, the relevant answers to Questions 43, 44, 45 and 46 were found in the application to the Department and are set out in detail earlier in this decision.

25. In Question 43 the applicant was asked what he feared if he returned to Libya. The answer provided by the visa-holder was that his minority group was subject to ill-treatment and that his ethnicity was deemed pro-Gaddafi so that in all likelihood he would be the victim of persecution. The Department was satisfied that he provided an incorrect answer as he returned to Libya for a [number] month period without any apparent issues which suggests that he did not hold the claimed adverse political profile claimed. The Department of Foreign Affairs and Trade has described black Libyans as Libyans of sub-Saharan African appearance, who may or may not hold Libyan citizenship. The black Libyan category includes [Town 3] and Saharan peoples such as Tuareg and Tebu, as well as up to a million foreign workers and undocumented migrants present in Libya before the commencement of the 2011 conflict.[4] The visa-holder has given evidence that his mother was [of a certain ethnicity], and that he associated himself with Afro-Arabic ethnicity.

    [4] DFAT, Country Information Report: Libya, 4 April 2016

26. The country information indicates that, at the time when the applicant provided this answer in March 2012, dark-skinned Libyans from his region were being attacked and arrested by anti-Gaddafi fighters. One Human Rights Watch Report indicated that anti-Gaddafi fighters from [City 2] had threatened, attacked, and arrested people from the nearby town of [Town 3], and that dark-skinned Libyans were particularly vulnerable to abuse by anti-Gaddafi forces, suffering arrests, attacks and some killings that forced thousands to flee over land and by sea.[5] A February 2012 Reuters Report stated that black Libyans were being persecuted due to their links with the Gaddafi regime, with many mistakenly being identified as sub-Saharan mercenaries who fought for Gaddafi during the war.[6] In May 2012 Amnesty International reported that opposition militias had taken captive thousands of suspected Al-Gaddafi loyalists, soldiers and alleged African mercenaries, many of whom were beaten and abused in custody and remained held without trial. [7]

    [5] Human Rights Watch, “Lagging effort to build justice system”,  22 January 2012

    [6] Reuters, “Gunmen kill five in Libyan refugee camp-hospital staff”,  6 February 2012

    [7] Amnesty International, Annual Report Libya, 4 May 2012

27. The Tribunal is unable to be satisfied therefore that the applicant gave an incorrect answer to Question 43, when he said that it had been revealed to him by reliable sources that his minority group was subject to ill-treatment and that his ethnicity was deemed pro-Gaddafi. The visa-holder indicated, in the answer provided to Question 42, that he had left Libya to undergo [studies], but while in Australia the uprising unfolded, leading to his fear. Given the country information referred to above, the Tribunal is satisfied that the applicant did not give an incorrect answer when he said that he feared in all likelihood being the victim of persecution, given that information was that dark-skinned Libyans from his regions were being assumed to be pro-Gaddafi and were being attacked and arrested. He also stated that his particular town was under fire from militias at the time which was why he gave this answer. The fact that he was not persecuted when he returned does not mean that, at the time when he provided this answer, he did not have a “fear” of persecution, particularly as the Tribunal accepts that he hid and moved around secretly while in Libya.

28. In Question 44 the applicant was asked who he thought would harm or mistreat him if he returned. He answered that it would be the militias, and that black people would be targeted as pro-Gaddafi mercenaries. The Department concluded that the information was incorrect because he had since returned to Libya for [number] months without apparent harm which suggested he did not hold the adverse political profile at the time of the application.

29. Amnesty International in 2012 reported that militias had taken captive thousands of suspected Gaddafi supporters and alleged African mercenaries, many of whom were beaten and abused in custody.[8] The Reuters Report suggested that black Libyans were mistakenly being identified as sub-Saharan mercenaries who fought for Gaddafi during the war.[9] Given these and other similar sources, the Tribunal is unable to be satisfied that the applicant gave an incorrect answer in that he was asked who he “thought” would harm or mistreat him. The Tribunal is satisfied, based on the attacks on black Libyans at the time, that he thought that he would be harmed by the militias.

    [8] Amnesty International, Annual Report Libya, 4 May 2012

    [9] Reuters, “Gunmen kill five in Libyan refugee camp-hospital staff”,  6 February 2012

30. In Question 45 the applicant was asked why he thought that “this” would happen to him if he returned. Presumably Question 45, in stating “this”, referred back to the answers provided in Question 44. The applicant answered that it had been widely publicised that people in authority had shown contempt towards his group, especially in [Town 3] and down south. He also said that he had not heard any news of his [brothers] and thought they may be dead, and that the militia would think that the Gaddafi regime sent him to Australia to educate him to work for them when he returned. He also said that he would be in danger because he was a member of [Organisation 1] and the militia would put him on their black list. The Department concluded that the information was incorrect as he returned to Libya for [number] months without apparent harm, which suggests he did not hold the adverse political profile claimed. As set out above country sources indicate that at the time he provided the answers there was evidence that people in authority were showing contempt towards dark-skinned Libyans, particularly in [Town 3]. The Tribunal also accepts his evidence that he had had not heard any news of his [brothers], as this evidence has been consistently provided to the Department and Tribunal. He has said that his brothers were soldiers fighting for Gaddafi for the Revolutionary Guards and that his family supported Gaddafi because there was no other choice. Militia in his area may well have associated the visa-holder with his brothers, particularly as he would have been returning from the West on a scholarship. Sources including the Department of Foreign Affairs and Trade have indicated that recipients of scholarships faced a low risk of societal or official discrimination or violence upon return. However the applicant was a member of [Organisation 1], and it is feasible that this would have made him particularly concerned that he would be harmed if he returned. On 29 July 2015, a mass trial of 28 former senior regime figures resulted in 24 being convicted of crimes relating to the Gaddafi regime’s conduct during the 2011 conflict. Nine of the defendants, including Gaddafi’s son Saif al-Islam Gaddafi, were sentenced to death in a trial widely criticised by international observers.[10] Human Rights Watch has indicated that on 24 January 2014 the Libyan parliament passed a decree discontinuing scholarships for students studying abroad for “taking part in activities inimical to the February 17 revolution”. This decree, according to Human Rights Watch also “calls on Libyan embassies abroad and others to draw up lists of names and refer them to the Prosecutor-General for prosecution”.[11] The fact that he returned without harm does not indicate that he did not have the adverse profile, but rather that he was able to avoid detection.

    [10] DFAT, Country Information Report: Libya, 4 April 2016

    [11] Human Rights Watch, “Libya : Critical TV Bans Setback for Speech”,  26 January 2014, - accessed 20 August 2017

1. In Question 46 the applicant stated that he did not believe the authorities would protect him as he was perceived to be sympathetic to Gaddafi. The Department concluded that the information was incorrect as the visa holder had since returned to Libya for [number] months without apparent harm. The Tribunal notes that the applicant stated that “he did not believe” the authorities would protect him. Therefore the Tribunal must be satisfied that he did not hold such a state of belief. The fact that he returned to Libya may suggest that he did not hold a significant fear of returning, however, it does not indicate that he believed that the authorities would protect him.

2. In summary the Tribunal is unable to be satisfied that the applicant provided incorrect answers to Questions 43 to 46 at the time when they were made.

3. For these reasons the Tribunal is not satisfied that there was non-compliance by the visa-holder in the way described in the section 107 notice. It follows that the discretionary power to cancel his visa does not arise.

   Conclusions on non-compliance

4. 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.

   Non-refoulment obligations

5. The Tribunal notes that, had it found there was non-compliance, it would have found that the cancellation would lead to the visa-holder’s removal in breach of Australia’s non-refoulment obligations under relevant international agreements. In this regard the Tribunal notes that the Department had not carried out an International Treaties Obligations Assessment (ITOA) at the time of review.

6. According to the most recent Department of Foreign Affairs and Trade Report on Libya, the current security situation in Libya is “dire”. The Report sets out the background to the current situation as follows. The removal of the Gaddafi state apparatus left a major power vacuum that no single group or personality has thus far been able to fill. Free parliamentary elections held in July 2012 resulted in a political deadlock between two rival blocs, loosely described as ‘Islamists’ and ‘nationalists’ but more accurately representing a broader complex mix of regional, tribal and familial loyalties. Further parliamentary elections in June 2014 resulted in a victory for the ‘nationalists’. However, the ‘Islamists’ refused to recognise the results and occupied much of Tripoli, leading to the ‘nationalists’ leaving the capital and basing themselves in the eastern city of Tobruk. Both sides declared themselves to be the legitimate government of Libya, and, in July 2014, large-scale fighting broke out between the rival administrations, drawing in additional tribal factions and militias. The breakdown of security across the country has also enabled extremist groups, particularly Islamic State in Iraq and the Levant (ISIL, aka Daesh), to consolidate their presence in Libya. The Tobruk-based administration, known as the House of Representatives (HoR), has been Libya’s internationally recognised government, although the Tripoli-based entity, the General National Congress (GNC), continues to occupy the capital. In December 2015, the UN-backed Presidential Council announced the creation of a third entity, the Government of National Accord (GNA), aimed at ending the political division. On 31 March 2016, seven senior GNA members arrived in Tripoli, including its Prime Minister-designate. However, while the GNA has secured strong international backing, neither administration have committed to cooperating with or supporting it, and it is too early to tell whether its creation will lead to significant political change in Libya. The lack of political stability since the outbreak of civil conflict in 2011, compounded by the resumption of conflict in 2014, has contributed to a situation where the rule of law as provided by a national government does not exist for the majority of Libyans.[12]

   [12] DFAT Country Information Report: Libya, 4 April 2016

7. DFAT, in its 2016 report, assesses that ‘black Libyans’ of all categories face a high risk of societal discrimination and violence due to their perceived association with the Gaddafi regime. This may include being illegally detained, beaten or tortured; having death threats made against them or their families; or being killed.[13]

   [13] DFAT Country Information Report: Libya, 4 April 2016

8. A recent United Nations Security Council Report[14] has stated that over a year after signing the Libyan Political Agreement, and following months of a political stalemate, efforts continue to facilitate its implementation. The Report states that the overall security situation has deteriorated significantly with escalating clashes in Tripoli, fighting in the oil crescent region and rising tensions in the Sabha area.  Potential for further military escalation remains, according to the Report, due to largely unaddressed structural political issues and the multiplicity of armed actors on the ground with conflicting agendas. The Report states that Libya is at risk of a return to widespread conflict.

   [14] United Nations Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya,  4 April 2017

9. There are also difficulties getting into Libya safely. Tripoli airport was seized by Islamist forces in 2014[15] and efforts to re-open it have been either unsuccessful or short-lived.[16]  DFAT advice has indicated that Benghazi and its airport have frequently been targeted by forces hostile to the interim government.[17] Misrata airport, meanwhile, has evidently been under the control of Islamist factions traditionally opposed to the tribal confederacy that supported Gaddafi but it too has been attacked and suffered periods of shutdown, and the last foreign airline operating in Libya discontinued all flights there earlier in 2014.[18]

   [15] BBC, “Libya crisis: Tensions rise as Tripoli airport seized”, 24 August 2014, - accessed 20 August 2017

   [16] Reuters, “Armed clashes in Libya's Tripoli, airport shutdown”, 16 November 2014 – accessed 20 August 2017

   [17] DFAT Travel Advice: Libya, 9 July 2015, accessed 20 August 2017

   [18] BBC, “Turkish Airlines stops Libya flights to Misrata”, 6 January 2015, - accessed 20 August 2017

10. Meanwhile, there is evident ongoing conflict between tribes and power structures in the east and tribes and power structures in the west, such as those in control of Tripoli, making the prospect of passage by returnees to home regions through Tripoli highly dangerous[19].

    [19] Libya Prospect, “Interesting chapter in the absurdity of the Libyan scene”, 28 June 2016, - accessed 20 August 2017

11. The latest DFAT Travel advice, January 2017, states “do not travel to Libya”, and that Tripoli airport is closed. According to DFAT, the political situation in Libya remains volatile, as work towards the establishment of a Libyan Government of National Accord (GNA) continues. The arrival of the Presidency Council of the GNA in Tripoli on 30 March 2016 was an important step towards political stability, but intense fighting is still continuing in a number of areas, including Tripoli.[20]

    [20] DFAT, Travel Advice, Libya, 23 January 2017, - accessed 7 July 2017

12. UNHCR in its most recent Position on Returns to Libya, states that:

    UNHCR commends any  measure taken by States to support forcible returns of nationals..of Libya..UNHCR urges all States to suspend forcible returns ..until the security and human rights situation has improved considerably.[21]

    [21] UNHCR, Position on Returns to Libya- Update 1, October 2015, available at - accessed 20 August 2017

13. On the basis of this country information, considering the “dire” security situation, the insecurity of travel, and the fact that the applicant may be targeted as a pro-Gaddafi supporter who was awarded a scholarship, has lived in the West, had brothers who fought for Gaddafi, and is a dark-skinned Libyan from a region assumed to have been pro-Gaddafi, the Tribunal is satisfied that removal of the visa-holder would lead to possible persecution, death, torture, cruel, inhuman or degrading treatment or punishment in breach of Australia’s non-refoulment obligations.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Jane Marquard
    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.