1707132 (Refugee)

[2017] AATA 2809

1707132 (Refugee) [2017] AATA 2809 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707132

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Shahyar Roushan

DATE:3 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2017 at 3:34pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Iraq – Irregular Maritime Arrival – Religion – Sunni Muslim – Social group – Worker for foreign company – Fear of Jaish Al Mehdi – Voluntary returnee

LEGISLATION
Administrative Appeals Tribunal 1975, s 33
Migration Act 1958, ss 101, 107, 109,

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

   Background and Evidence

   The Information

2. The applicant arrived in Australia [in] December 2011 as an Irregular Maritime Arrival (IMA). [In]January 2012, a Protection Obligations Determination was commenced and the applicant provided a statement of claim, dated [in] January 2012, in association with that process. In his statement, the applicant provided the following information:

   1.I was born [in]  Al Basra, Iraq on [date],  however, for as long as I can remember, my family have lived at [a location], Al Zubair, Al Basra, Iraq.

   2.My father was employed as [an occupation], however, he no longer works because he is an elderly man and he is unwell. My mother passed away in approximately 2005 following [a disease].

   3.As a consequence of my family's financial situation, my family was unable to afford the expense of sending me to school -for example, the costs of the transport and the clothes.

   4.At approximately the beginning of 2011, I commenced employment at [Company 1] as [Occupation 1]. My understanding of this company is that it is a foreign company that [provides a service for vehicles] from one province of Iraq to another. My brother, [Mr A], assisted me in obtaining this employment.

   5.My brother, [Mr A], owned a[vehicle] that he used to transport the [workers] that were employed by [Company 1] to and from work. My brother,  [also] transported employees to and from [a location] which I understood to be a foreign company. My brother, [Mr A] also sold [goods] to the people who used to travel on his [vehicle]. When I was not working, I assisted my [brother] in selling the [goods] on his [vehicle]. My brother, [Mr A], obtained the [goods] from my brother, [Mr B] - my brother[Mr B] used to sell [the goods] in our area.

   6.At approximately the beginning of the 10th month of 2011, my father was threatened by men whom he suspected where (sic) members of Jaish Al Mehdi - your children are Sunnis, your children work for foreign companies, your children deserve to have their heads cut off. My father was very unwell. Following this, my brother, [Mr A], and I began to sleep at night in his [vehicle].

   7.On approximately the  [date] of the 10^th month of 2011, the police informed us that my brother, [Mr A], had been killed. My father went to the hospital, identified my brother, and when he returned he was not very well at all.

   8.As my family was concerned for my safety, it was decided that I would stay at my Uncle's house, and, subsequently, it was decided that I would leave Iraq.

   9.Following my departure from Iraq, I learnt that [Mr B’s] brother-in-law [Mr C], [Mr C’s] sisters and [Mr C’s] grandmother had been killed. [Mr C] sold [goods] with my brother, [Mr B], and they were also Sunni Muslims.

   10.Following my departure from Iraq, I learnt that my brother [Mr B] and his family have also fled. My father has told me that he has not had any news from my brother and his family — my father is very unwell and he wants some news about my brother.

   11.If I return to Iraq, I will be killed. I will be killed because they killed my brother [Mr A] — they will kill me to. When they threatened my father, they said our  [names] . I fear that I will be killed because of my own employment with [Company 1], because I assisted my brother in selling [goods], and because I am-Sunni Muslim.

   12.I do not believe that the authorities of Iraq will protect me. The government of Iraq is not good, The Iraqi government does not fulfil the needs of citizens — in my opinion, it is against the citizens. I am scared of the Iraqi government — it is a Shi'ite government.

   13.For all of the above reasons, I ask the Australian government to protect me and not send me back to Iraq.

3. [In] March 2012, a delegate of the Minister determined that the applicant is someone to whom Australia owes protection obligations.

4. [In] May 2012, the applicant applied for a Protection (Class XA) visa. In Form 866C, in response to questions in relation to his reasons for claiming protection, the applicant stated that he is seeking protection in Australia so that he does not have to go back to Iraq. In response to questions 43 to 48, the applicant stated ‘see attachment’, referring to the statement [in] January 2012.

5. [In] May 2012, the applicant was granted a protection visa.

   The Notice

6. [In] August 2016, in accordance with s.107 of the Act, the applicant was issued with a Notification of Intention to Consider Cancellation under Section 109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

7. The NOICC set out the applicant’s statement [in] January 2012 and reproduced his responses to questions 42-48 of his Form 886C. The NOICC stated:

   Following the grant of your Protection Visa you have made the following movements from Australia:

   Depart  Arrive
    [January] 2013                     [May] 2013
    [March] 2015              [June] 2015
    [June] 2016                [June] 2016

   On each of these occasions you declared on your outgoing passenger card that your intended destination was Iraq…

   You have declared that you have voluntarily travelled back to Iraq on three occasions and have spent up to 8 months residing there without any apparent harm. This is confirmed by your boarding pass and the titre de voyage that was sighted by the Department. This appears to demonstrate that your life is not at risk from militia groups as you have claimed and that you do not appear to hold the adverse profile that you have claimed in your application for a class XA subclass 866 Protection Visa.

   Your Protection Visa was granted on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You have claimed that you feared harm in Iraq from militia groups due to your religion and that the authorities were not able to provide protection for yourself. You claimed that because of this, you could not reside in Iraq and you required Australia's protection. These claims were fundamental to the determination that you are a person to whom Australia had protection obligations….

   You have stated that you feared returning to Iraq, however, you have since returned there voluntarily on three occasions. As this information was material to the determination that you were owed protection, if appears that you do not hold the adverse profile as you have claimed and you may not have engaged Australia's protection obligations.

   I therefore consider that you have not complied with section 101(b) of the Act because you have provided incorrect answers in your application for a class XA subclass 866 Protection visa.

   The Applicant’s Response

8. In response to the NOICC, the applicant’s representative provided a submission, dated 7 September 2016, essentially asserting that the applicant had provided correct information to the Department.  Under the cover of the submission, the applicant provided a statutory declaration, dated [in] September 2016. In his statutory declaration, the applicant stated that he had always provided correct information in connection with his application for a protection visa. He also provided the following additional information:

9. In January 2013, his sister contacted him and told him that their father has been diagnosed with [a disease[, he is in a critical condition and he wishes to see the applicant before he dies. Although he was scared, he had to see his father. He contacted his uncle, [and] arranged with him to go to Iraq. He stayed in places where no one knew him and asked his uncle not to tell anyone he was going to be in Iraq. In Iraq, he stayed at his uncle’s house and was very cautious as his life was in danger. The applicant’s father was brought to the uncle’s house so the applicant could see him. The applicant stayed in Iraq for four months. Three weeks after he arrived in Iraq, his father passed away. He did not attend his father’s funeral, but visited his father’s grave on three occasions at night time.

10. He travelled to Iraq again in March 2015 as his sister was ill. His sister also [has] children and it was hard for her to attend to their needs. It was his duty to care for his sister as his father had asked him to look after her. During his stay in Iraq, he stayed in hiding. He was only there to see his sister and assess what he could do to help her.

11. In May or June 2016, his uncle contacted him and informed him that his sister was very ill with [a disease] and that he needed to assist in selling the family house in order to pay for her medication. As in the previous occasions, he stayed in hiding at his uncle’s house and sold the family house to help his sister.

12. He is currently married to [Ms A]. His wife is pregnant and she is due to give [birth]

    ·Copy and translation of a death certificate in the name of [the applicant’s sister], dated [in] February 2016. The certificate identifies the date of death [in] February 2013.

    ·Medical evidence relating to his sister.

    ·Copy and translation of a contract of sale between the applicant (‘seller’) and [(‘buyer’)]. According to the translation, the contract was registered [in] March 2013 in Basra.

    ·Copy of the applicant’s Certificate of Marriage.

    ·A letter from [a medical centre] stating that [Ms A] is his patient and she is [number of] months pregnant. She is also suffering from [a medical condition] and she is reliant on her husband for support.

    ITOA

13. The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant and, [in] January 2017, found that Australia does not owe him non-refoulement obligations.

14. [in] December 2016, in response to a request by the ITOA officer, the applicant stated that his father’s death certificate was not dated [in] February 2016 and that this was a ‘typo’ in the translation. The applicant submitted a new translation of the death certificate, indicating that the certificate was issued [in] February 2013. He also submitted a new translation of the contract of sale, dated [in] June 2016. The new translation did not state that the contract was registered [in] March 2013 in Basra.

15. Subsequently, the ITOA officer asked the applicant to provide the original copies of his father's death certificate and the contract  of sale. Following the provision of these documents to the Department [in] January 2017, the ITOA officer observed that the original death certificate had been ‘altered’ by blue pen. The applicant subsequently advised that he had been told by the translator to trace over the document which was a carbon copy.

16. In a submission dated 14 February 2017, the applicant’s representative stated [that], the applicant became a father to a baby girl. Most of [Ms A’s] family reside in Australia and a move to Iraq would place her and her daughter at risk of harm. If the applicant were to return to Iraq, he would be facing ‘extremely vulnerable conditions’ and would be subjected to persecution due to his Sunni faith and his association to ‘[a goods] company’.

    The Delegate’s Decision

17. [In] March 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information in his application for a protection visa. 

    Application for Review

18. The applicant applied for a review of the delegate’s decision.

19. On 24 July 2017, the applicant’s representative provided a further submission in support of the application for review. The submission, essentially, reiterated the applicant’s explanations for returning to Iraq on three occasions. It was submitted that the applicant is married to [Ms A]. He and his wife have a child together and his wife is currently expecting their second child. [Ms A] suffers from [a medical condition] and she relies on the applicant for assistance and support. The submission referred to a decision of this Tribunal, differently constituted, involving a similar factual scenario. In that case, the Tribunal decided that the applicant’s voluntary return to his country of nationality itself is not evidence of factual incorrectness underpinning the asserted fear in the application for a protection visa.

    Under the cover of the submission, the applicant’s representative submitted a statutory declaration by the applicant, reiterating that he had provided correct information to the Department. He referred to the reasons behind his three trips to Iraq and stressed his family ties in Australia.

20. The applicant appeared before the Tribunal on 25 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and the applicant’s [brother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

21. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The Certificate

22. The Department’s file relating to the cancellation of the applicant’s protection visa  [contained] a s.375A certificate in respect of certain folios in the file. The certificate prevented the disclosure (except to the Tribunal) of anything contained in the relevant folios for the reason that it would be contrary to the public interest because the folios contained ‘personal information about a third party [and] release of this information would be a breach of this person’s privacy’. The Tribunal formed the view that the reason provided sufficient basis for public interest immunity and that the certificate was valid. The Tribunal explained to the applicant at the hearing that it considered the certificate to be valid. The Tribunal also explained to the applicant that the particulars of the information covered by the certificate were in relation to third parties and that, in the Tribunal's view, were not relevant to the issues under consideration in the matter under review. The applicant did not specifically comment on this issue and the Tribunal has placed no weight on the information covered by the certificate.

    Was there non-compliance as described in the s.107 notice?

23. 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.

24. 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.

25. Having regard to the terms of the NOICC and the information referred to in the notice, 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. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

26. 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) referred to in the s.107 notice as set out in the NOICC.

27. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

28. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

29. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120]

30. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures at it sees fit in undertaking its fact-finding role.[6]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

1. As the contents of the NOICC, set out above, demonstrate, the delegate considered the applicant’s statement of 29 January 2012 to provide the relevant answers to Questions 42, 43, 44, 45, 46, 47 and 48 of Form 866C. The delegate then referred to the applicant’s trips to Iraq on three separate occasions.

2. In her decision record, the delegate referred to a translation of a death certificate, relating to the applicant’s father, submitted by him in response to the NOICC. The translation indicates that it was issued [in] February 2016. The delegate did not accept the applicant’s explanation that the date in the translation was a typo and that he had gone over the text of the original with a blue pen at the request of the translator. Similarly, the delegate did not accept the applicant’s explanation that the first translation of the contract of sale was not correct. The delegate accepted that the applicant’s father had passed away in 2013. However, she expressed concerns in relation to the ‘alterations’ to the death certificate. The delegate also expressed concern in relation to the contract of sale. She noted that the first translation indicated that the sale had occurred [in] March 2013, which coincided with the period of time the applicant was in Iraq following his father’s death. She concluded that the property was sold in 2013 and the contract of sale has been altered to support the applicant’s version of events. She formed the view that the information in both documents had been fabricated to justify the applicant’s return to Iraq. She considered it implausible that that an individual who claimed to be in fear of his life would make multiple trips to Iraq. She considered that the applicant did not hold the claimed adverse profile at the time of his application for a protection visa.

3. At the hearing, the Tribunal asked the applicant to produce the original Arabic copies of his father’s death certificate and the contract of sale. The Tribunal is proficient in reading Arabic. Having examined the death certificate, it was apparent to the Tribunal that the document was dated [in] February 2013 and not[in] February 2016. The Tribunal asked the interpreter at the hearing to render an oral translation of the document. The interpreter confirmed that the date of issue, as stated on the document, is  [February] 2013. The Tribunal also carefully examined the original contract of sale. The document did not contain any references to the contract being registered in Basra [in] March 2013. Again, the Tribunal asked the interpreter at the hearing to provide an oral translation of the document. The interpreter confirmed that nowhere in the document were any references to the contract being registered in Basra [in] March 2013. It was also evident to the Tribunal that the segments in both documents marked with a blue pen contained no alteration of the original text, which is not a carbon copy. Rather, it appeared that someone had gone over some apparently faint words with a blue pen without altering any entries or contents. The Tribunal did not share the delegate’s concerns in relation to the two documents. The Tribunal is satisfied that the initial translations of the two documents provided by the applicant contained translation errors and did not reflect the actual contents of original documents submitted by the applicant to the Department. The Tribunal is satisfied that the documents have not been ‘altered’ as to change their content or purpose. The Tribunal is satisfied that the documents are not fabrications.  

4. Whilst the Tribunal shared the delegate’s concerns in relation to the applicant’s return trips to Iraq, for the following reasons, the Tribunal was no satisfied that the applicant had provided incorrect information in his application for a protection visa and the accompanying statement.

5. As already noted, the delegate stated in her decision that the applicant’s return to Iraq on three occasions, staying for periods of 4 months, three months and two weeks respectively, indicated that he did not hold the claimed adverse profile at the time of his application for a protection visa. Whilst the delegate identified specific answers provided by the applicant in his Form 866 and the applicant’s return trips to Iraq raise questions in relation to his subjective fear of harm, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being killed by Shi'a militias.

6. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of each case and the precise claims which were made must be carefully examined. 

7. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a protection visa.  For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Iraq or that he would be arrested if he returned to that country. The applicant claimed that he feared members of Jaish Al Mehdi and that the authorities could not protect him from his persecutors.

8. The applicant has given consistent evidence throughout the process in relation to his claims for protection. The applicant had claimed that he was employed in a foreign owned company, [Company 1], as [an occupation]. The applicant’s brother, [Mr A], owned a [vehicle] that he used to transport the [workers] that were employed. [Mr A], with assistance from the applicant, also sold [goods] to those travelling on the [vehicle]. His other brother, [Mr B], sold [goods] in their local area. Following threats made by Jaish Al Mehdi, [Mr A] was killed. The incidents prompted the applicant to leave Iraq. Following his departure, [Mr B’s] brother-in-law and other members of his wife’s family were killed. The Tribunal did not form any concerns in relation to the manner in which these claims have been presented throughout the process.

9. The Tribunal accepts that the applicant’s father was diagnosed with a terminal illness in 2013. The Tribunal accepts that the applicant decided to visit his father before he dies. The Tribunal accepts that the applicant’s father had died during the applicant’s first trip to Iraq. The Tribunal accepts that, in 2015, the applicant was informed that his sister had been diagnosed with [an illness]. The Tribunal also accepts that the applicant’s sister has  [children], making her circumstances particularly difficult. The Tribunal accepts that he had felt compelled to return to Iraq to render assistance to his sister. He told the Tribunal at the hearing that, during his stay in Iraq, his sister’s condition was such that he had to assist her with toileting and dressing. The Tribunal further accepts that he returned to Iraq on the third occasion to sell his father’s house so that his uncle could continue to financially support his ill sister. The Tribunal accepts the applicant’s explanation that, due to prevalence of fraud in Iraq, the execution of the sale would not have been possible without his physical presence as buyers do not trust and do not enter into sale transactions with attorneys or agents acting on behalf of sellers. The Tribunal accepts the applicant’s evidence that, on each occasion, he had taken precautions. On each occasion, he had stayed at his uncle’s house and had not disclosed his travel plans to anyone else, other than his sister.  

10. Having regard to all of the evidence before it, the Tribunal is of the view that the applicant’s return to Iraq on the three occasions referred to was somewhat imprudent, if not foolish. Nevertheless, the Tribunal is also of the view that by travelling to Iraq the applicant took a calculated risk. The Tribunal accepts that the applicant’s desire to see his terminally ill father in 2013 and his seriously ill sister in 2015, as well as his desire to ensure that his sister and her children were financially supported had outweighed his fears arising from the security situation in Iraq. The Tribunal does not accept that travelling to Iraq is inconsistent with the claims which he made in his application for a protection visa and the accompanying statement or that the answers the applicant gave in his application for a protection visa were incorrect. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

11. For these reasons, the Tribunal does not accept that the applicant gave incorrect answers in his application for a protection visa. 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.

12. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.