1708563 (Refugee)

[2017] AATA 2223

1708563 (Refugee) [2017] AATA 2223 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708563

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Antoinette Younes

DATE:23 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 23 August 2017 at 6:10pm

CATCHWORDS

Refugee – Cancellation - Protection Visa – Iraq – Stateless Faili Kurd – Bogus documents – Counterfeit documents -– Lack of state protection – Genuine fear of harm - Irregular maritime arrival – Witness credibility

LEGISLATION

Migration Act 1958, ss 5(1), 36, 46, 48A, 65, 101, 103, 107, 109, 189, 198, 438, 499
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.103 which requires a non-citizen not to provide a bogus document and s.101(b) which provides a non-citizen to fill in or complete the application form in such a way that no incorrect answers are given or provided. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Section 438(1)(a) Certificate

6. In the course of the hearing, the Tribunal advised the applicant that there is a s.438(1)(a) certificate placed on the Departmental visa cancellation file. The Tribunal indicated that it considered the certificate to be valid and noted that the Tribunal would discuss relevant information contained in those documents.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

10. 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) and s.103.

    The applicant’s protection claims

11. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review. Relevantly, the delegate’s decision record provides the following summary of the events that led to the cancellation of the applicant’s visa:

    i.[In] January 2010, the applicant arrived  [as an irregular maritime arrival]. He stated that his name is [name], born in Ilam, Iran on [birth date] and that his citizenship is Faili Kurd. He provided a white card issued in Ilam. He stated that he was not known by any other names. He stated that he left Iran using a false Iraqi travel document organised by his [relative]. He stated that the document carried his photograph, name, and date of birth. He travelled to [Country 1] from Iran with his [relative], his [relative]’s wife and their child.

    ii.The applicant’s biodata information taken on arrival [in Australia] indicates that the applicant had stated that his [relative] had heard that there was someone in Qom named [name] making false passports and his [relative] obtained them. He stated that he left Iran with his [relative] who had to stay in [Country 1] because the [relative]’s wife had [been unwell] and she could not travel. The [relative] provided similar information on arrival to Australia.

    iii.In the Refugee Status Assessment decision record dated [in] March 2010, the applicant was found to be a refugee on the basis of being a stateless Faili Kurd. [In] April 2010, he made an application for a protection visa which includes a form 866.

    iv.At question 9 of part B of the form 866 which asks “Are there any members of the family unit who are NOT in Australia at the time of application?” The applicant responded “Yes”.  At the same question, the applicant provided details such as date of birth, place of birth relating to his parents, [and siblings]. In relation to all of them, he answered that they are stateless and that their country of residence is Iran.

    v.At question 12 of part B of the form 866 stating “Please list all the documents you need to provide with this application, and indicate when you will be providing them. If you cannot provide certain documents, indicate this in the table and provide details at question 13”, the applicant responded “White card (identity card) – refer to RSA statement of claim… Never issued with any other identity or travel documents other than White Card”.

    vi.At question 13 of part B of the form 866 stating “If you cannot provide a document, please indicate which document and explain why”, the applicant responded “Refer to RSA statement of claim Q23-32.  I left using a false Iraqi passport given to me by a smuggler. I had to give that back to the smuggler in [country]. I have never been issued with any other identity or travel documents other than that with me. I had a Green Card until 2001 but this was exchanged for a White Card. I have never held a valid travel document.”

    vii.At question 4 of part C of the form 866 which asks “What other names have you been known by?”, the applicant did not provide an answer. At question 19 of part C of the form 866 which asks “Your citizenship at birth”, the applicant responded “Stateless – born in Iran”.  At question 20 of part C of the form 866 which asks “Your current citizenship (if different to at birth)”, the applicant responded “Stateless”.  At question 21 of part C of the form 866 which asks ”Do you hold any other citizenship or are you a national of any other country?”, the applicant answered “No”.   At question 22 of part C of the form 866 which asks “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?”, the applicant answered “No”.

    viii.At question 41 of part C of the form 866 which states “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)” the applicant responded “Iran”. At question 42 of part C of form 866 which asks “Why did you leave that country?”, the applicant responded “Because I am a Kurdish Faili and I have a well-founded fear of persecution in Iran. There is no safety for Kurdish Faili’s in Iran. We are harassed by the authorities. I have been beaten up by the Baseej three times and harassed. I have been arrested by the Baseej and detained and also beaten.”

    ix.At question 43 of part C of the form 866 which asks “What do you fear may happen to you if you go back to that country?”, he answered “I feel that I will suffer serious harm if I return to Iran. I have been beaten up, arrested and detained in the past and I fear that it will happen again in the future. This has happened to my [relative] and to my friend as well.” At question 44 of part C of the form 866 which asks “Who do you think may harm/mistreat you if you go back?”, the applicant stated “The Baseej, the Iranian government and its agencies”.

    x.At question 45 of part C of the form 866 which asks “Why do you think this will happen to you if you go back?” the applicant responded “This will happen to me because I am a Kurdish Faili and because I have no citizenship. Kurdish Faili’s have no civil rights in Iran.”  At question 46 of part C of the form 866 which asks “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, the applicant responded “No. The Iranian government tolerate the Bassej and how it treats us. The Iranian government is the one who I am afraid of.”

12. The applicant agreed that he had provided the above information when seeking protection from the Australian authorities.  He confirmed that he has claimed to be a stateless Faili Kurd.

13. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that following the grant of the protection visa [in] April, he departed Australia [in] February 2012 and travelled to Iran. He returned to Australia [in] May 2012. He again departed Australia to Iran [in] November 2013. He returned [in] February 2014. On his passenger card, the applicant had stated that he was visiting family. The applicant used his Australian Titre de Voyage and obtained an Iranian visa and he also obtained an extension to remain in Iran.  The Tribunal noted the applicant’s claimed fear of returning to Iran and asked him the reasons for his return given his claimed fear. He stated that he travelled to Iran as a non-Iranian, with a valid non-Iranian travel document (Australian Titre de Voyage). He stated that he travelled to Iran to see his ill mother who has suffered from [various health problems]. The Tribunal asked him if he has any corroborative evidence that his mother was ill and the applicant stated that he does not. The Tribunal suggested to the applicant that his returns to Iran could raise doubts about the claims that he has made.  He reiterated that he travelled using the Australian document and no questions were raised by the Iranian authorities.

14. The applicant has not provided evidence to corroborate his claim that his mother had been ill. On the evidence before it, the Tribunal does not accept that the applicant went to Iran because his mother had been ill. The Tribunal is not persuaded or convinced by the explanations about his returns. The Tribunal is of the view that the applicant’s returns to Iran even using his Australian travel document raise serious doubts about his claims of fear of harm on any basis in Iran. This also raises doubts about the applicant’s credibility.

15. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that [in] March 2016, the applicant was interviewed by the identity section of the DIBP regarding his claimed identity and nationality. The Tribunal asked and the applicant confirmed that his date of birth is [date of birth]. The Tribunal noted that DIBP questioned him about the White Card which he had produced to support his claimed identity. The Tribunal referred to the photograph placed on the white card and noted that it appeared to be of a person younger than the expected age of the applicant at the time the card would have been issued. With the assistance of the interpreter, it was revealed that the white card refers to a Persian word Tarigh meaning date - of 2008. The interpreter noted that the date does not specify what it relates to but potentially it could refer to the issue date. The applicant stated that the date of 2008 refers to the expiry date. The Tribunal noted that there is no reference to expiry. The Tribunal indicated that if the date refers to the issue date, then it is implausible that the photograph on the card is his own photograph because the photograph is that of a [young man] and that the applicant in 2008 would have been [visibly older]. The applicant stated that he does not know when the card was changed from green to white because he does not recall. The Tribunal asked him if the white card had been renewed and he stated he left Iran in 2008 and the card had not been renewed. The Tribunal discussed with the applicant the information that the white card was referred to the DIBP document examination unit for forensic examination which [in] March 2016 determined that the card is counterfeit. The Tribunal noted that the DEU findings are significant findings indicating that the white card is not a genuine document which could lead to a finding that he has provided a bogus document. The applicant stated that the white card is not a bogus document and he reiterated that it is a genuine white card.

16. Post hearing, the representative made the following submissions:

    ·The white card is genuine and the photograph on the card shows the true identity and age of the applicant. The date recorded on the white card is the expiry date rather than the date of issue. There has been an oversight by the representative, the applicant and the translator who missed the small text on the left-hand side of the card stating “till’ in the Persian language. This means that the photograph on the card matches the age of the applicant at the time of issue when he was [of the relevant age]. There is nothing to show that the white card is in fact counterfeit. It is implausible that while the applicant’s parents are in possession of genuine white cards, that they would provide these son with a counterfeit one. The applicant has been honest about everything in regards to the visa process.

    ·The applicant is not an Iranian citizen and he is only entitled to Iraqi citizenship. The parents’ white cards[1] issued by the Iranian authorities indicate that they are not citizens of Iran, although they are citizens of Iraq. Gaining Iraqi citizenship is very difficult and requires been in Baghdad. Faili Kurds continue to experience mistreatment and discrimination in Iraq.

    [1] The representative attached with the submissions a number of untranslated documents.

17. It is plausible that the applicants’ parents had white cards but as conceded by the applicant, they are Iraqi nationals. In post-hearing submissions, it was noted that it would be too costly to have documents translated and the Tribunal appreciates that translating documents would cost the applicant. However, the Tribunal finds it difficult to accept that the applicant has not provided to the Tribunal any evidence from a professional translator to corroborate the claim that the date refers to the expiry date. In those submissions, it was suggested that the fact that the white card is with the Department makes this difficult. The applicant has a copy and the representative has made submissions relating to the date so it is difficult to understand why there is no independent corroborative evidence before the Tribunal confirming that the date refers to the expiry date. However, even if the Tribunal were to accept that the 2008 date refers to the expiry date which could account for the photograph, this would not necessarily mean that the white card is authentic. The Tribunal is concerned about the representative’s submissions that there is nothing to show that the white card is counterfeit.  Those submissions disregard an important fact that the DEU found the document to be counterfeit. The Tribunal considers the finding of the DEU that the document is a bogus document to be highly persuasive evidence. The Tribunal has no reason to doubt the conclusions of the DEU which provides an objective and expert assessment of documents.  Accordingly the Tribunal has decided to place significant weight on the DEU’s findings.  On the evidence before it, the Tribunal is not satisfied that the card is genuine. On the evidence before it, the Tribunal is satisfied that the white card is counterfeit.  For those reasons, the Tribunal finds that the applicant has provided a bogus document, namely the white card.

18. The Tribunal discussed with the applicant a document from the UNHCR issued on 9 June 2009 and provided by the applicant during the protection application process noting that his nationality is Iraq.  The Tribunal asked the applicant why a letter from the UNHCR would be stating his nationality to be Iraqi given his claims of being a stateless Faili Kurd. The applicant indicated that he does not know anything about the document. He said he does not know about such things. He said his parents became Iraqi nationals in 2012 and he has never lived in Iraq. He stated he cannot return to Iraq and that he does not know the Iraqi culture or lifestyle. He stated that he has never seen an Iraqi ID card.

19. The document from the UNHCR states that the applicant is an Iraqi National contrary to his claims of being stateless. The Tribunal is not persuaded or convinced by the applicant’s explanations that he does not know anything about the document. The Tribunal is of the view that the notation on the document that the applicant is an Iraqi national could suggest a number of things, including but not limited to, that the applicant is not stateless and that he is in fact an Iraqi national who was so on his arrival in Australia.

20. The Tribunal discussed with the applicant the claim that he had departed Iran using a forged Iraqi passport. The Tribunal indicated to the applicant that the Iranian authorities use extensive checking mechanisms making it difficult to depart Iran on forged documents. The Tribunal referred to the report of the Department of Foreign Affairs and Trade (DFAT)[2], namely:

    Fraudulent Documents

    5.48 Punishments for forgery are dealt with in Articles 523 to 542 of Iran’s Penal Code.

    5.49 DFAT assesses that it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa. Additionally, many Iranians travel to Turkey where there is no visa requirement for Iranians and from there travel onwards using forged documents. Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved.

    5.50 DFAT assesses as credible reports that state Iran's land border with Turkey provide an easier way to exit Iran illegally. Borders to Turkey and Iraq are porous and there are well-established smugglers' routes. DFAT is not aware of any recent cases where Iranian customs officials have received punishment for taking bribes in relation to entry or exit procedures.

    [2] DFAT Country Information Report, Iran, 21 April 2016

1. In relation to difficulties in departing Iran on forged documents, the applicant responded by saying that in Iran, one can overcome anything with money.  The Tribunal is of the view that to suggest this could also be further evidence that the applicant has provided forged documents, like the white card. Such a response to the Tribunal raised doubts about the documents provided by the applicant, the claims that he has made, and his credibility. On the one hand, he is saying that the white card is a genuine document, but on the other hand, he is claiming that the Iraqi passport is not.  It appears to the Tribunal that the applicant is tailoring his evidence and claims rather than providing information reflecting an accurate position.

2. The Tribunal referred to information contained in the delegate’s decision record that in the course of the interview with the DIBP, the applicant was asked about his aunts and uncles and he provided details that were consistent with information held by the Department. When the applicant was asked to name cousins he had in Iraq, he only mentioned [name] who had apparently gone to [Country 2]. He did not provide details of any other cousins in Iraq. He was asked whether he had ever met any of his family who remained in Iraq and he stated that he had not. In the interview, the applicant stated that he had never gone to Iraq to visit family, nor had his parents or siblings. He also said that none of his family living in Iran had travelled to Iraq because they did not have any documents apart from white cards.

3. The Tribunal asked the applicant if he has a Facebook account and he stated that he has and that he uses the name [pseudonym].  The Tribunal referred to information contained in the delegate’s decision record that during the DIBP interview, the applicant was shown a photograph from a Facebook page of his [cousin] and the applicant’s [sibling]. The applicant confirmed that his cousin lives in Iraq and when he was asked why he had not disclosed earlier that he had a cousin in Iraq, it was noted that he was unable to explain the discrepancy.  The decision record noted that a second photo of the applicant’s brother shows the brother in Karbala Iraq, contrary to the applicant’s claims that none of his family had returned to Iraq. The applicant stated that when he was asked during the DIBP interview about family members going to Iraq, he was untruthful with the interviewer; that is he provided incorrect answers in the course of the interview. 

4. The Tribunal indicated that on his own evidence, he has acknowledged that he was untruthful to the Department which raises doubts about his credibility and other answers and/or information he has provided. The applicant stated he did not disclose that members of the family had been to Iraq because he feared that the Australian authorities would return him to Iraq. He stated that his parents have remained in Iran and that his [siblings] are in [Country 2] as refugees. Post hearing, it was submitted that the applicant “has not in fact being dishonest about anything in regards to his visa process, and any inconsistencies in his visa process have not been of his own fault and rather have been from honest changes in circumstances”.  Those submissions are difficult to reconcile with the applicant’s own acknowledgement that he had provided incorrect answers when he was interviewed by the Department. The Tribunal has carefully considered the applicant’s explanations and submissions but finds them unconvincing. Although the Tribunal acknowledges that the applicant’s concession that he had provided untruthful answers during the DIBP interview is noteworthy, it nevertheless indicates a willingness and preparedness to provide untruthful answers for personal gain. The Tribunal is concerned about the provision of false answers in the course of a significant interview designed to give the applicant with an opportunity to articulate his claims and explain his situation. The untruthful answers mean that the Tribunal cannot be satisfied that the applicant is providing correct and/or truthful answers. The Tribunal is of the view that this is strong evidence supporting an adverse credibility finding.

5. The delegate’s decision record makes mention of the applicant’s [relative] and the applicant’s father being Iraqi citizens.   The Tribunal discussed with the applicant the copies of the original Iraqi citizenship card for the applicant’s mother issued [in] 2011 stating that it is a renewal extension, the green and white cards for the applicant, Iraqi citizenship card for the applicant’s father, visa to Iran in the applicant’s name. The Tribunal referred to the card in relation to his mother with a notation that it is a renewal extension suggesting that the card had clearly existed prior to [2011] which could indicate that at the time of his arrival in Australia [in] January 2010, he was an Iraqi national himself. The applicant stated that his parents had told him that they had obtained the Iraqi identity documents in 2012 to which the Tribunal responded that would not explain the date on his mother’s card [in] February 2011. The applicant stated that he did not know about the documents and that he was told that family members had gone to Iraq in 2012 when they obtained the Iraqi documents.

6. In written submissions, it was argued that the applicant has provided a genuine document; the white card is authentic and that despite being requested, the department has not provided “proof” of the forensic examination. It was further submitted that there was no reason for the applicant to lie about this document and that it is impossible that the white card be counterfeit because the applicant’s parents’ green cards were genuinely issued. It was submitted that the applicant has not provided incorrect information. At the time of the application, the applicant and his parents were stateless; they did not have citizenship in either Iran or Iraq. Although country information shows that from 2006, Faili Kurds were able to return to Iraq and to reacquire their citizenship, country information also shows the difficulties they faced. The applicant is not entitled to an Iranian citizenship. By his own admission to the Tribunal, the applicant has provided incorrect answers to the Department in the course of the interview and to suggest that the applicant does not have a reason to lie about the white card is not a persuasive argument; it appears to the Tribunal that the applicant has tailored his responses and evidence for a perceived favourable migration outcome.

7. It is also noteworthy that in submissions to the Department and to the Tribunal, the applicant’s representative acknowledged that the applicant is “now entitled to Iraqi citizenship…”[3] but at the time of the application for a protection visa, he was stateless. It is difficult to accept that after the grant of his protection visa, the applicant is now entitled to an Iraqi citizenship. Why was he not entitled to that citizenship prior to the grant? What are the cogent reasons for his former lack of entitlement?  The fact that the applicant has been untruthful in his responses during the Departmental interview about his family in Iraq raises serious doubts for the Tribunal about the family’s true situation and/or nationality.

   [3] At page 16 of submissions sent to the Tribunal on 12 July 2017

8. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant was not an Iraqi national when he had applied for a protection visa, or that the Iraqi passport which he used to leave Iran was not a genuine Iraqi passport. The evidence before the Tribunal strongly suggests that he was and he is an Iraqi national. Although based on the evidence before the Tribunal cannot make a positive finding that the applicant is an Iranian national, the Tribunal accepts as plausible that the applicant is of Faili Kurdish ethnicity. 

9. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is satisfied that when the applicant arrived in Australia he was an Iraqi national, contrary to his claim of being stateless. For the same reasons, the Tribunal finds that when the applicant arrived in Australia and contrary to his claims, members of his family were also Iraqi citizens. For the same reasons, the Tribunal finds that the applicant’s returns to Iran for substantial periods indicate that the applicant did not fear harm in returning and that he could return, contrary to his claims. It follows that the Tribunal finds that when the applicant applied for the protection visa, he provided incorrect answers to questions 9, 12, 13 of part B of the form 866, and questions 19, 20, 21, 22, 41, 42, 43, 44, 45, and 46 of part C of the form 866. For the reasons stated earlier, the Tribunal is satisfied that the applicant has provided a counterfeit document within the meaning of s.5 of the Act.

10. For these reasons, the Tribunal finds that there was non-compliance with s.103 and 101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

11. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

12. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

13. The Tribunal and for the stated reasons has found that the applicant is not stateless, contrary to the claims he has made. The correct information is that at the time of his arrival in Australia and at the time of lodging the application for a protection visa, the applicant was an Iraqi national, contrary to his claims that he had no nationality.

14. The fact that the applicant has returned to Iran is evidence that the applicant did not fear harm in Iran as claimed. His returns to Iran raise serious doubts about his claimed harm in Iran and are evidence supporting a finding that the applicant has provided incorrect information when he claimed that he had suffered harm in Iran.

15. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    ·     the content of the genuine document (if any)

16. For the stated reasons, the Tribunal is satisfied that the white card provided by the applicant is a bogus document within the meaning of s.5(1) of the Act.

17. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

18. The Tribunal has accepted that it is plausible that the applicant is of Faili Kurdish ethnicity, however and for the stated reasons, the Tribunal found that the applicant is an Iraqi national who was able to return to Iran, contrary to his claims.

19. The claim of statelessness is a central claim in the applicant’s case. The Tribunal is satisfied that the decision to grant the applicant a protection visa was based, wholly or partly, on the incorrect information and the bogus document provided by the applicant.

20. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    ·     the circumstances in which the non-compliance occurred

21. Subsequent to the grant of the visa, the applicant returned to Iran on two occasions. His white card was expertly examined and the examination revealed that it is not an authentic document. The applicant has continued to assert that he has not provided any false information and that the white card is a genuine document.

22. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    ·     the present circumstances of the visa holder

23. The applicant gave evidence that he lives in shared accommodation and that he has been in a relationship for the last four years. The Tribunal asked him about this relationship and he stated that the name of his partner is [Ms A] who is [age] years of age and she has [a number of] children, aged [age of children] years. The Tribunal asked him if they are living together and he stated they are not. The applicant gave evidence that there is an ongoing concern due to religious differences.

24. The Tribunal asked the applicant if he is currently working and he stated he is not because in 2013, he was a victim of a violent attack in [location]. He stated that he suffered serious injuries including [details of injuries] subsequent to which he has been unable to work.

25. The Tribunal asked him if he has applied for an Australian citizenship and he stated that he has but he has not heard the outcome.

26. The Tribunal takes this opportunity to express genuine empathy towards the applicant being a victim of a violent attack in Australia. He is a young person who has suffered as a consequence of that attack. The Tribunal gives this aspect of his circumstances favourable weight.

27. In regards to his relationship, on the evidence before it, the Tribunal is satisfied that the applicant is in a relationship with [Ms A] but the impression that the Tribunal got was that the relationship has problems. The Tribunal has also considered the fact that [Ms A] has [a number of] children [details of children] but there is no evidence before the Tribunal that the applicant has such strong connections with the children to mean that the visa should not be cancelled.

28. The Tribunal has carefully considered the applicant’s present circumstances and on balance, the Tribunal is not satisfied that those circumstances mean that the visa should not be cancelled.

    ·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

29. The applicant has responded to the notice of intention to consider cancellation and he attended a hearing before the Tribunal. The applicant however has continued to claim that he is a stateless Faili Kurd. He also admitted to the Tribunal that he had provided incorrect answers to the Department in the course of the interview.

30. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    ·any other instances of non-compliance by the visa holder known to the Minister

31. There is no evidence before the tribunal of any other instances of non-compliance. The Tribunal gives this aspect some favourable weight.

    ·the time that has elapsed since the non-compliance

32. The applicant lodged the application for a protection visa [in] April 2010 when the applicant was [age]. The Tribunal acknowledges that the applicant has spent over seven years in Australia which the Tribunal considers to be significant, however his circumstances as outlined above do not suggest that the applicant has strong connections in Australia to mean that his visa should not be cancelled. What is also of concern is the fact that the applicant and by his own admission, has provided incorrect information to the Department.

33. The Tribunal is satisfied that although over seven years has elapsed since the applicant lodged the application for a protection visa, this does not mean that the visa should not be cancelled.

    ·any breaches of the law since the non-compliance and the seriousness of those breaches

34. There is no evidence before the Tribunal of any breach of the law since the non-compliance. The Tribunal gives this aspect some favourable weight.

    ·any contribution made by the holder to the community.

35. The Tribunal asked the applicant about any contribution he has made to the Australian community and he stated that he helps anyone who asks. He stated that he likes to contribute.

36. The Tribunal is not satisfied that the applicant has made contribution to the Australian community to mean that the visa should not be cancelled.

    ·other relevant factors

37. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

38. Although the Tribunal has found that the applicant is an Iraqi national and any claims for protection should be assessed on the basis of his Iraqi nationality, the applicant has claimed to fear harm of returning to both Iran and Iraq.

39. In written submissions, the representative noted that:

    ·In Iraq and Iran, the Kurdish population has been a victim of serious human rights abuses.  Faili Kurds have always been discriminated against by Iraqi officials mostly because of their Shia faith and their ethnicity. In the 1970s, 40,000 Faili Kurds were expelled from Iraq on allegations that they were Iranian nationals. They were accused of being spies for Iran, giving the Baathist party ‘permission’ to have them expelled to Iran. The 1980s saw a decree that would strip all Faili Kurds of their citizenship, their properties were seized and around 300,000 was sent to Iran where they faced exile and statelessness.

    ·The 1991 Kurdish uprising resulted in around 2 million refugees. The Iraqi government expelled more Kurds and other ethnic groups. After Saddam Hussein’s government’s collapse in 2003, the Iraqi government took steps to restore the rights of Kurdish people in Iraq. In 2006, the law that stripped all people of their citizenship was revoked and those people were able to have their citizenship reinstated. Since that time around 100,000 people have had their citizenship returned to them, including Faili Kurds.

    ·“Kurdish people have generally been enjoying life after Saddam Hussein’s presidency. The Kurdish population have been able to set up their own autonomous region in Iraq, with their own government and have economic growth as well”. The expectations of returnees to Iraq have not been met; many have found their homes occupied and they received threats. From 2006 and 2014, Prime Minister Nouri al Maliki attempted to limit the powers of Kurds and Sunnis. Those actions have resulted in the rise of the Islamic state and in making active the Kurdish voices which has led to the Kurdish aim for their own separate state.[4]

    ·In Iran, the Kurdish population is subjected to routine and cumulative discrimination amounting to persecution. They have faced continuing government discrimination and have been consistently viewed with suspicion of harbouring separatist or foreign sympathies. The Kurdish population in Iran have a “long, deep-rooted” suffering in terms of their repression and isolation from the wider community.

    ·The applicant fears that he would be significantly harmed on the basis of his membership of a particular social group, namely returning failed asylum seeker from a Western country. The applicant left Iran at a young age to escape the ill-treatment by the Iranian authorities due to his ethnicity as a Kurd. In Iran, the Kurdish population has been unable to band together in one area, resulting in a broken community with different political and social views. The treatment of the Kurdish community in Iran has resulted in an even more unhealthy and toxic community. The applicant and his family have not experienced a safe community that would provide stability in their lives.

    ·Being stateless has very much impacted the applicant’s life and he cannot return to either Iraq or Iran. The applicant has spent most of his life in Iran and although he would be aware of the culture, he is not Iranian and he would not be able to work or live in a stable environment, and he may face ill-treatment by the Iranian authorities. Since his arrival in Australia, the applicant has established his life here; he has learned English and has become accustomed to the freedoms and cultures of Australia. He has been a law-abiding citizen. The applicant does not speak any Kurdish dialect and he has never been to Iraqi in his life. Country information indicates that Iraqi is currently unstable and unsafe and as a Faili Shia, he may face discrimination. The applicant has been away from Iran for a total of nine years and this is a significant period. He has no ties to Iraq and in Iran if returned, he would face a changed country and would find it impossible to resettle.

    [4] Cited, Dylan Campbell, The Faili Kurds of Iraq: 30 years without nationality (2/4/2010) Relieweb < – Iraq – 30 – years – without – nationality>

1. The Tribunal has accepted as plausible that the applicant is of Faili Kurdish ethnicity.  In relation to Faili Kurds in Iran, DFAT[5] notes that “…Faili Kurds, generally receive better treatment in Iran than Afghan refugees, because Iranian authorities accept the future of many Iraqi refugees lies in Iran. DFAT assesses as credible reports that Iraqi refugees are often better integrated than other refugees in Iran because they are often of the same ethnicity as Iranians in the province in which they are hosted”. 

   [5] DFAT Thematic Report, Faili Kurds Iraq and Iran, 3 December 2 014

2. In a more recent report, DFAT indicated that:

   3.23 Kurds can face considerable societal discrimination, leading to unfair day-to-day treatment. DFAT considers that such discrimination is not usually the result of official or state-directed policies. Discrimination is rarely coupled with community-level violence.

   3.24 There are credible reports of Kurds being targeted by authorities for perceived links (or having family members with perceived links) to Kurdish political groups such as the Party for a Free Life in Kurdistan, Komala or the Democratic Party of Iranian Kurdistan. There are a number of Kurdish Iranians currently imprisoned—some on death row—for affiliation with these groups.

   3.25 DFAT considers that most Iranian Kurds either do not come to the attention of authorities or are subject to only low levels of adverse attention by the state. Those who attempt to publicly assert cultural or political rights that are perceived to threaten the constitutional foundations or the territorial integrity of the Islamic Republic have an increased risk of coming to the attention of the state.

   3.26 DFAT assesses that Kurds who become known to Iranian authorities are likely to face harassment on account of their activities. Largely depending on the profile or activities of the person (as well as the prevailing political environment and sometimes the personalities of individual security officials), this harassment could include monitoring, summons for questioning, closure of offices or organisations or arrest. Family members are sometimes threatened and, less often, imprisoned or forced into hiding[6].

   [6] DFAT Country Information Report, Iran, 21 April 2016

3. The applicant is not claiming or suggesting that he or any member of his family have links, actual or perceived, with any Kurdish political groups. The Tribunal acknowledges that as a person of Faili Kurdish ethnicity, the applicant could face a level of discrimination, however looking at his profile and the fact that he did return to Iran on two occasions subsequent to the grant of the protection visa suggests that the applicant does not fear harm. His returns also suggest that the applicant did not suffer harm as claimed. The Tribunal is mindful that there does not have to be past harm to establish future harm; it is nevertheless a guide to the future. In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or real risk of the applicant facing serious or significant harm on the basis of his Faili Kurdish ethnicity.

4. The applicant is claiming to fear harm on the basis of being a failed asylum seeker. DFAT notes the following:           

   Conditions for Returnees

   5.33 Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran. Officials provide assistance to Iranians who wish to voluntarily return to Iran, even if they left irregularly. Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee—largely because most failed asylum seekers leave Iran legally (e.g. regular departure through airports or with passports).

   5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.

   5.35 In some communities, particularly Kurdish and Arab, cultural factors involving ‘face’ will ensure that a voluntary returnee is unlikely to draw attention to themselves for having ‘failed’ to leave Iran upon their return to the country but generally DFAT is not aware of any legislative or social barriers to voluntary or involuntary returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. DFAT is also not aware of any specific barriers for voluntary returnees to travel to their home region, including for unaccompanied women. Some women from minorities or rural areas may feel culturally unable to travel unaccompanied within Iran[7].

   [7] Ibid

5. The applicant has returned to Iran and this is a significant consideration for the Tribunal. The applicant returned to Iran on two occasions using his Australian Titre de Voyage when he travelled. Arguably, he could have been perceived as a failed asylum seeker.  The Tribunal is mindful that the applicant is suggesting that he did not suffer any harm on his return because, amongst other things, he had used his Australian travel document. However the Tribunal considers this explanation to be unpersuasive; the applicant is claiming that he fears harm returning to Iran but he did return to Iran on two occasions subsequent to being granted the protection visa. The Tribunal is satisfied and for the reasons stated that the applicant does not fear harm of returning to Iran on any of the grounds and claims made in the application for a protection visa. The Tribunal is of the view that his returns on two occasions raise serious doubts about his claims of past harm. The Tribunal finds it difficult to accept that an asylum seeker would return to the country of claimed harm, irrespective of the fact that the applicant used his Australian travel document to go to Iran.

6. On the evidence before it, the Tribunal is not satisfied that that there is a real chance or real risk of the applicant facing serious or significant harm on the basis of being a failed asylum seeker. Country information cited above indicates that voluntary returnees are not likely to face ill-treatment by the Iranian authorities. The applicant is not suggesting that he would refuse to return to Iran but even if he were to refuse to return, given the fact that he has returned to Iran, the Tribunal would find that the applicant would be refusing without a legitimate cause and for the reason of hindering his removal from Australia.

7. In relation to Iraq, the Tribunal has found that the applicant is an Iraqi national of Faili Kurdish ethnicity.  DFAT’s report[8] indicates that:

   2.31 In general, Faili Kurds in Iraq are no better or worse off economically than other Iraqis. The Iraqi and Kurdistan Regional Governments are now providing financial support and compensation to Faili Kurds. DFAT was told in early 2014 that the Ministry of Migration and Displacement was paying approximately four million Iraqi dinars (IQD – approximately 3600 US dollars) to Failis who had been stripped of their citizenship, in four tranches of IQD 1 million each.

   …3.1 There is now no discrimination in law or policy against Faili Kurds in Iraq. Following discussions with a range of Faili Kurdish groups, DFAT has no credible information to suggest that Faili Kurds are treated differently by Iraqi Government agencies on the basis of their ethnicity.

   3.2 DFAT assesses that residual official discrimination against stateless Faili Kurds in Iraq is not generally based on ethnicity, but on the absence of documentation resulting from their statelessness.

   …3.20 Overall, DFAT assesses that reclaiming Iraqi citizenship is possible for the majority of Faili Kurds. In practice, those who would face difficulty reclaiming Iraqi citizenship are a limited subset of Faili Kurds. These might include children born in Iran to Faili Kurd refugee parents, whose parents are now deceased. Reclaiming citizenship presents similar difficulties for the children of Faili Kurds who went missing under the
   

   [8] DFAT Faili Kurds in Iraq and Iran, 9 December 2014

   former Iraqi regime.

8. The most recent report from DFAT[9] notes the following,

   2.9. According to Iraqi Government statistics from 2010, 97 per cent of the population is Muslim. Shias—including Arabs but also Turkmen, Shabak, Faili Kurds and others—constitute approximately 55 to 60 per cent of the population; Sunni Arabs represent 24 per cent, Sunni Kurds 15 per cent, and Sunni Turkmen one per cent. Pre-2002 estimates of the number of Christians in Iraq range from 800,000 to 1.4 million. Anecdotal estimates from Christian leaders indicate that fewer than 250,000 Christians now remain in Iraq. According to these estimates, approximately 67 per cent of Christians are Chaldean Catholics and nearly 20 per cent are Assyrians. The remainder are Syrian Orthodox, Syriac Catholic, Armenian Catholic, Armenian Orthodox, Anglican and other Protestants. An estimated 50 evangelical Christian families reportedly remain in Iraq, compared to 5,000 in 2013. Between 350,000 and 400,000 Yazidis remain in Iraq. The Sabaean-Mandean community estimates that no more than 3,000 Sabaean-Mandeans remain in Iraq. The Bahai community is estimated to include fewer than 2,000 people and the Kaka’i (also known as Yarsani) community has approximately 300,000 members. The 2016 US Department of State’s Human Rights Report estimated that there were 430 Jewish families in the Kurdish region, and fewer than 10 Jewish families in Baghdad. Conflict with ISIL has resulted in the number of minority religious groups (particularly Christians and Yazidis) declining sharply, with many fleeing Iraq.

   3.0 Pre-2003, different religious and ethnic communities were able to live side-by-side relatively peacefully. Ongoing conflict has seen religiously mixed areas becoming more mono-religious – usually Shia or Sunni. This process sharply accelerated in some areas following the rise of ISIL. Shias typically have communities in most areas of Iraq, but are predominantly located in the south and east, and are the majority in Baghdad. Sunnis are mainly located in the west, north and central areas of Iraq. The number of areas considered mixed in Baghdad is diminishing. Some districts of Baghdad still have significant Sunni communities, including the districts of Mansour and Abu Ghraib. There are also smaller pockets of Sunni communities in the districts of A’adamia, Rusafa, Za’farania, Dowra and Rasheed. Mixed Sunni – Shia communities are mainly located in the districts of Rusafa and Karada, although there are also smaller mixed communities located in the districts of Dowra, Rasheed, Karkh, Mansour and Kadhimiya.

   Faili Kurds

   Faili Kurds are generally Shia, unlike the majority of other Kurds who are predominantly Sunni. Previous (Sunni-dominated) governments treated Faili Kurds with suspicion and hostility. In the 1970s and 1980s, tens or perhaps hundreds of thousands of Faili Kurds were stripped of their citizenship and expelled from Iraq, mainly to Iran. Faili Kurds have been returning from Iran to Iraq since 2003 and are mainly located along the border with Iran. While most were initially considered stateless on their return to Iraq, many have now been able to regain their citizenship. Legislation that supports this process is now in place, although the process can be administratively complex if the individual lacks sufficient documentation to demonstrate Iraqi origin.

   Interviews conducted by credible NGOs found that Faili Kurds who have not regained their citizenship fear official discrimination, mainly due to the ramifications of not holding proper documentation. In-country contacts suggest that a lack of awareness amongst Faili Kurds of their rights has led to this perception of official discrimination. The Iraqi Government and the KRG have taken numerous steps to protect Faili Kurds, including through providing financial compensation and restitution of employment (although this is likely to have been affected by the deteriorating economic situation). There is limited discrimination in access to services such as education and health for non-stateless Faili Kurds. Recovering properties that were confiscated or occupied when Faili Kurds were stripped of their citizenship is administratively complex, but legal processes to facilitate this exist. Courts have approved the return of properties, although opposition from occupants has prevented some Faili Kurds from reclaiming their properties.

   Credible in-country contacts suggest that societal discrimination against Faili Kurds continues to occur and that Faili Kurds are not readily welcomed into communities dominated by other ethnic or religious groups. This situation is also faced by other groups in areas where they are the ethnic or religious minority.

   Overall, DFAT assesses that there are limited examples of official discrimination occurring in practice against Faili Kurds. As with other stateless people, this risk is higher for Faili Kurds who remain stateless. DFAT assesses the risk of Faili Kurds experiencing societal discrimination to be moderate.

   [9] DFAT Country Information Report Iraq, 26 June 2017.

9. For the stated reasons, the Tribunal has not accepted that the applicant is stateless. He is a national of Iraq of Faili Kurdish ethnicity. Country information cited above and as referred to by the applicant’s representative in submissions indicate that on balance whilst there is a level of societal discrimination against Faili Kurds, that level of discrimination is more related to being stateless. The Tribunal acknowledges that there is a level of insecurity in Iraq and the Tribunal is mindful that there are challenges for Iraq in this respect. However, a generalised level of security does not, without more, mean that the person is owed protection. On balance and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not have a profile which would mean that he would face a real chance or a real risk of serious or significant harm if he were to return to Iraq. In reaching this finding, the Tribunal has carefully considered the applicant’s profile, including but not limited to, the fact that he has lived in Iran and Australia for a number of years and that he may not have the Arabic linguistic skills spoken in Iraq, but the Tribunal is not satisfied that those factors mean that he would face harm as contemplated.

10. The Tribunal has carefully considered the applicant’s claims independently and cumulatively. In consideration of the evidence as a whole, the Tribunal is not satisfied that if the applicant were to return to Iraq, there is a real chance, or a real risk of serious or significant harm occurring to the applicant on any of the claimed basis. 

11. The Tribunal has also considered that if the visa were to be cancelled, the applicant would be subject to s.46(1) of the Act barring an application for a further visa. Moreover, pursuant to s.48A(1B), he would be barred from making a further application for a protection visa while in the migration zone, unless the Minister intervenes and lifts the bar. He may also become an unlawful non-citizen and could be liable for detention under s.189 and s.198 of the Act. The Tribunal is of the view that these are intended legal consequences of cancellation and they do not mean that the visa should not be cancelled.

12. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. The Tribunal has had regard to all the relevant circumstances, independently and cumulatively. On balance, the Tribunal concludes that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Antoinette Younes
Senior 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.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.