1709285 (Refugee)

[2018] AATA 1513

1709285 (Refugee) [2018] AATA 1513 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709285

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Josephine Kelly

DATE:11 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2018 at 4:03pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Iraq – Ethnicity – Claims to be Stateless Bidoon from Kuwait – Bogus documents or incorrect information – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 107, 109, 140

CASES
Zhong v Minister for Immigration and Citizenship [2008] FCA 507

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 on 19 April 2017 by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).  The visa had been granted on 2 June 2011 because the applicant was accepted as being a stateless Bidoon from Kuwait.

2.    On 25 June 2013, the applicant’s wife lodged a partner visa application, including [several] children, and provided various Iraqi identity documents for herself and her children in support of the application.

3.    The delegate cancelled the visa on the basis that the applicant claimed in his visa application that he and his immediate family were stateless and not entitled to citizenship of any country which was incorrect and concluded that the applicant was an Iraqi citizen. 

4.    The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.    The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The applicant provided further submissions after the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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 (the NOICC). 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.

Did the notice comply with the requirements of s 107?  

1. The Applicant argued that the notice issued by the Minister’s delegate did not comply with s 107 because it was not reasonable for the decision-maker to consider that the Applicant had Iraqi citizenship based on the fact that his wife did, because that was an incorrect understanding of Iraqi law. The Tribunal was referred to the decision of Lander J in Zhong v Minister for Immigration and Citizenship [2008] FCA 507.

2. The Tribunal does not accept that submission, even if as a matter of fact the Applicant’s wife was an Iraqi citizen and the delegate’s understanding of Iraqi law were incorrect.  The section does not require that the delegate’s findings are factually or legally correct.    Zhong does not support the submission. Whether the delegate’s contentions in the NOICC are made out is the subject of the consideration pursuant to s 108 of the Act.

3. The Tribunal finds that the delegate had reached the necessary state of mind to engage s 107.

4. No other non-compliance was asserted.  To avoid doubt, the Tribunal finds that the notice contains sufficient particulars to enable the applicant to identify and address the issues.

5. The Tribunal is satisfied that the notice issued by the Minister’s delegate complied with the statutory requirements.   

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

The issues 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(a) and 101(b) of the Act in the following respects:

oThe applicant had not complied with s 101(a) of the Act as he did not answer question 4 in Form is 866 C Application for an applicant who wishes to submit their own claims to be a refugee – “What other names have you been known by?” According to his children’s Iraqi identity cards and citizenship certificates, he was also known [by an alias].

• He had not complied with s is 101(b) of the Act as he had provided incorrect answers to the following questions in his Protection Visa application:

  Form 866B – Persons included in this application and family composition:

  oIn response to question nine – “Are there any members of the same family unit who are NOT in Australia at the time of application?”  He stated that his wife and children are stateless. As per his wife and children’s Iraqi identity cards and citizenship certificates which are only issued to Iraqi nationals, it is apparent that they are all Iraqi citizens.

  Form 866C - Application for an applicant who wishes to submit their own claims to be a refugee

  oIn response to question 19 – “Your citizenship at birth” he stated “stateless – Bidun, Kuwait”. This is incorrect because as per his children’s Iraqi identification cards and official Iraqi citizenship certificates which are only issued to Iraqi citizens, the delegate could see he is an Iraqi citizen and was so at the time of his protection Visa application.

  oIn response to question 21 – “Do you hold any other citizenship or are you a national of any other country? He ticked “no”. This was incorrect because as per his children’s Iraqi notification cards and citizenship certificates it appeared that he was an Iraqi citizen.

  oIn response to question 22 – “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) of nationality or your former country(s) of habitual residence?” He ticked “No”.  That was incorrect as the only available information presented to the delegate, the delegate considered that he was an Iraqi citizen. Therefore he did not have the right to enter or reside in Iraq. Departmental records also showed that he had travelled to Iraq on two occasions between 2012 and 2013.

  oIn response to question 42 – “Why did you leave that country?” He stated in his “Statement of [Applicant’s name] [number]” that he was a stateless Bidoon; he did not have a right to citizenship or a right to reside in any country; he had experienced extreme disadvantages and discriminations as a stateless Bidoon in Kuwait; “he had campaign” for Bidoon issues and as a result he was arrested and tortured by the authorities. As the delegate considered that he was an Iraqi citizen and not a stateless person he did have some rights as bestowed to all Iraqi nationals. It further undermined his adverse profile claims in his Protection Visa application. As such, delegate considered his response to question 42 contained incorrect answers.

1. The applicant was legally represented when he responded to the NOICC.  A 13 page submission was provided, together with:

oa statutory declaration by the applicant, which had been read and interpreted to him by his legal representative who is a NAATI accredited interpreter;

ocopies of a document in Arabic and an English translation of a “State of Kuwait Birth Certificate for “[Applicant’s name]” dated [in date]; his father’s name was recorded as [name];

ocopies of an “Extract Translation of the Attached a Copy of Age Estimation Certificate Kuwait Translated from Arabic – [date]/08/2011” and Arabic original document for the applicant’s [wife]; the estimation was that on 22 December 1982 she was [age] years old, and her nationality was “Stateless”.

ocopies of an English translation of The Executive Committee for Illegal Residents’ Affairs Review Card for [the applicant’s father], Date of Birth [date] in an original Arabic document; it was issued [in] 2007 and valid until [2008].

ocopies of an English translation and the Arabic original of a marriage contract dated [in] August 1996 for “[the applicant]” and his [wife] whose nationalities were recorded as “Non-Kuwaiti”.

ocopies an English translation and Arabic original of External Marriage Contract Authentication issued by the [Court] in Al-Samawa, Iraq, [in] October 2013 in relation to [the applicant] and [applicant’s wife].

oEnglish translation and Arabic original of a school report card for [the applicant] from the Kuwait Ministry of Education for the year [year/year];

oa statutory declaration from an Australian citizen female child-hood friend of the applicant;

oa statutory declaration by the translator of most of the documents provided with the submission about naming conventions in Kuwait, Iraq and other Arabic countries;

ofour documents containing country information.

1. The applicant was represented by a different solicitor before the Tribunal.  A five page written submission was received before the hearing and a sixteen page submission was received after the hearing.  A copy of the decision in Zhong with citations downloaded from , and a copy of a master’s thesis on “Tribalism in Kuwait Impacts on the Parliament” were provided with the latter submission.

2. In his response to the NOICC and in evidence before this hearing, the applicant has maintained that he has always provided correct information about himself and his family and about his mistreatment in Kuwait because he is Bidoon. He claimed that he fled from Kuwait to [Country 1] via [Country 2] in September 2010, remained in [Country 1] for one or two weeks and then travelled to Australia by boat.  In early October 2010 he arrived at Christmas Island.

3. In his statutory declaration, the applicant claimed that his wife was harassed and interrogated about his whereabouts by Kuwaiti police, and she and the children planned to travel to [Country 3] via Iraq but could go no further than Iraq where they arrived in about July 2011, because of the civil unrest in [Country 3]. His youngest daughter was [age]. The applicant said that his family were able to remain in Iraq with the help of his wife’s [aunt].

4. In that statutory declaration, the applicant said the following about his wife’s application for partner visa.  It was lodged on basis of the family’s Bidun documents.  There was a delay in issuing the visa because of the lack of identification.  His wife told him that the embassy in [Country 4] said that she and the children needed passports and other identifications to travel.  She then approached an Iraqi lawyer who told her that he could get passports and Iraqi documents so they would be eligible to get the visa stamped into the passport. The Iraqi lawyer arranged the passports and identification documents and sent them to the applicant’s lawyer in Australia, who sent the documents to the embassy in [Country 4] where the application had been lodged.

5. The applicant set out two tables in the statutory declaration which included information about his immediate family.  In one table, he set out the names of his wife and [children].  In the case of each of his children, he set out the individual’s name followed by both his name [and] his father’s [name]. The other table set out the details of his family members as provided in support of his refugee visa application.  The list did not include his youngest daughter who was born in [date], after he lodged his application. That table set out the individual’s name and the “family name”.  In the case of his children that name was “[name]” and in the case of his wife “[name]”, which he explained were their tribe’s name. He said that “[surname]” was his grandfather’s name.

6. He explained the methods of addressing a person in Iraq as using:

• The child’s name, the father’s name, and the grandfather’s name;

• The child’s name, the father’s name, the grandfather’s name and the tribe’s name; and

• Sometimes an informal address is used, the name of the child with the tribe’s name.

1. The translator’s evidence was consistent with the first two methods.

2. The applicant said that he was not aware of the naming system in Australia and when he was asked by an immigration officer, he said what his tribe’s name was and his grandfather’s name. During his interview, he was asked which name he preferred to use as his last name and he chose [surname].  Then the immigration office asked what his and his wife’s tribe’s names were.

3. The applicant claimed before the Tribunal that the form of his birth certificate shows that he is Bidoon and that it is different from a birth certificate for a Kuwait. On its face, the document does not support that claim.  

4. When asked about the External Marriage Contract Authentication which had been issued in Al-Samawa, Iraq, the Applicant said that that is where his wife and children went from Kuwait.  When questioned closely about why his family went there, the applicant said first that it was closest to Kuwait. When the Tribunal questioned whether that was right, the applicant said that she had a lot of friends there.  He then said that her auntie had a lot of friends there, not his wife, and her aunt had suggested she go there.  When the Tribunal commented that he had changed his evidence, the applicant repeated that he did not mean his wife.  He did not say that there had been an interpretation difficulty.

5. When the Tribunal questioned the applicant about the statement in that document that he “resides in Al-Samawa”, the applicant said that that was the first time he had visited Al-Samawa and denied that he was visiting family (apart from his wife and children) or that he was a citizen of Iraq.  He said that he took the Kuwait marriage contract to register it and authenticate it in Iraq because when his wife followed up her application with the embassy in [Country 4], they wanted a registered marriage contract. 

6. The applicant said that he paid money for the registration and did not know whether it was a payment for a service or a bribe or whether the person had the right to ask for money.

7. The applicant said that he returned to Australia in 2012 and 2013 because he considered Australia home and he missed his wife and children.

8. When questioned about the Titres de Voyage issued by the Australian government that he used to go to Iraq in 2012 and 2013, the applicant said that the employee damaged the 2012 one when it expired. He does not have the one he used in 2013 either.  He only has the current one.  He denied entering and leaving Iraq using an Iraqi passport.

9. When asked about getting visas to enter Iraq, the applicant said that in 2012 he got one for three months and stayed four.  He was able to extend it. He got it at the airport when he arrived in Iraq, after paying a fee.  He did not apply for it the second time before he left Australia because he felt if it worked the first time, it would again.  He did not respond when the Tribunal commented that what he said was inconsistent with what the department says is required. The applicant’s evidence is inconsistent with the requirement of the Iraqi government that a person travelling on an Australian-issued travel document, including a Titre de Voyage, had to apply for a visa at the Iraqi Embassy or consulate in Australia.

10. Based on the information in the reviewable decision, the Tribunal finds that the applicant returned to Iraq for four months from 25 February 2012 and about 13 August 2013 to 13 December 2013.   

11. The applicant told the Tribunal the following about the documents his wife provided in support of her partner visa application.  He does not know whether or not they are genuine.  They could be.  When the Tribunal commented that the Australian embassy in [Country 4] had confirmed that the passports were genuine, the applicant said that he knows he and wife are stateless; he was not there when the documents were issued; it is hard for him to know whether they are genuine.

12. When the Tribunal commented that if the documents were genuine, that was inconsistent with his claims that his family were stateless Bidoons from Kuwait, the applicant said that his wife wanted to follow him and applied for the embassy in [Country 4], she had to have documents, and she obtained them.

13. When the Tribunal commented that it found it difficult to accept that he had nothing to do with bringing his family to Australia, the applicant said that his wife was asking him whether she should follow; that was her desire.  When the Tribunal commented that it thought it would be paramount to him that she and his family come here for a better life, he said that she told him that she wanted to get Iraqi documents and he agreed and whenever she inquired about her application, the embassy asked for passports.  

14. Later at the hearing, when the Tribunal asked if there were any other matters it should take into account, the applicant said he would like to have his family with him.  When the Tribunal again commented that that was why it had difficulty accepting that he left it to his wife to decide whether to come to Australia and to get documents, the applicant said that he had no solution and if he told her not to proceed, she might ask for a divorce.  He denied having had a long discussion about his decision to come to Australia or plans to bring her and the children if it worked out, saying that they had too many problems.  Australia was not the first choice.  He was thinking of getting out of Kuwait and going to [another location].  He did discuss with his wife that the trip may succeed or not and that he hoped things would be better than in Kuwait.

15. The Tribunal has taken into account the country information referred to by the delegate and that provided on behalf of the applicant, as well as the written and oral submissions made on behalf of the applicant.

16. The Tribunal found the applicant’s evidence about his lack of involvement in his wife’s application for a partner visa to be implausible and inconsistent. He returned to Iraq in 2012 and 2013 for four months each time. The children’s identification documents were issued in about 2012. He registered the marriage certificate while he was there in 2013 for the purpose of providing it to support the application. In his statutory declaration he stated the Iraqi lawyer arranged the passports and identification documents and sent them to the applicant’s lawyer in Australia, who sent the documents to the embassy in [Country 4] where the application had been lodged.  On his own evidence, he was involved in submitting documents for the application for his wife’s partner visa.

17. The Tribunal finds that he was avoiding responsibility for, or association with, documents that were inconsistent with the information he had provided during his visa application and specified in the NOICC

1. The Tribunal found his evidence about the reason his wife went to Al-Samawa from Kuwait inconsistent.  It does not accept the submission that there was an interpretation error.  The applicant changed his evidence in response to apparent difficulties in his case. It found his evidence about his going to Al-Samawa to be inaccurate and deliberately vague.  The Tribunal finds that he went and stayed there for four months in both 2012 and 2013.   

2. The Tribunal finds it implausible that his pregnant wife would have remained in Kuwait after he left in September 2010 for more than nine months with their [children], and given birth to the youngest child there in [year], if she had been subjected to the ill-treatment he claimed she was because of him.  

3. The applicant’s evidence about obtaining visas when he arrived in Iraq is contrary to the requirements that a visa is obtained from the Embassy or a consulate in Australia. His claim to have burned his 2013 Titre de Voyage at the suggestion of a friend when his new one was issued in 2017, is implausible. 

4. The Tribunal found the applicant’s evidence to be unreliable.  He had many opportunities to explain why the Iraqi documents had been provided but failed to give a satisfactory explanation.

5. It has taken into account the statement from his child-hood friend but gives it little weight. She states that “Bedoons” from Kuwait is a stateless group of people without citizenship.  The country information does not support that.  Each case differs.  She quotes the applicant as saying:  “I am told that there is a lawyer in Iraq with good connections, he is helping them to get Iraqi identifications”, the inference is that he knew the documents were not genuine.  That is inconsistent with his claim during the hearing not to know whether or not the documents his wife obtained in Iraq are genuine.  

6. The Tribunal accepts that the documentation provided by the applicant showing his and his wife’s links with Kuwait are genuine.  It also finds that the Iraqi issued documents his wife provided in support of her partner visa application are genuine.  It finds that she is a citizen of Iraq.  She may have been stateless according to the Kuwait authorities in 1982 when the estimation of age was done, however the Tribunal accepts that she was an Iraqi citizen when the applicant applied for the visa.   

7. The Tribunal has taken into account the country information about the availability of fraudulent documents in Iraq, but does not accept that the documents provided are fraudulent. The passports have been found to be genuine by the Australian embassy in [Country 4].  The Tribunal accepts that passports may be issued on the basis of false documents but does not accept that that occurred in this case.

8. The Tribunal accepts that the applicant’s wife described the applicant as “stateless” in her application and he maintains his claim to be a stateless Bidoon from Kuwait, however, while there may be Bidoons in Kuwait who are stateless, the Tribunal does not accept that any of the applicant or any member of his family belongs to that group. It finds that the applicant is a citizen of Iraq and was when he applied for the visa.

9. The Tribunal does not accept the submission that the delegate incorrectly assumed that the applicant was an Iraqi citizen because his wife was. The delegate did not do so. The applicant claimed that his family, including his wife, was stateless.  That she has Iraqi citizenship is inconsistent with his claim that she was stateless. If she was stateless, the Iraqi documents she had provided, apart from the passports, were false.  He could have said so. He could have said that she had obtained Iraqi citizenship since 2010. He did not. He provided no satisfactory explanation.

10. In finding that the applicant is an Iraqi citizen, the Tribunal has taken into account that in 2007-2008, the applicant was a documented Bidoon residing in Kuwait, based on the Review Card issued by The Executive Committee for Illegal Residents’ Affairs and was entitled to the rights and benefits conferred by that status. The country information shows that the information on the card is consistent with the annual card issued by that committee.[1]  The Tribunal does not accept the submission that it was not such a card. The country information shows that the individual circumstances of Bidoon in Kuwait vary greatly and that documented Bidoon suffer discrimination but that it is unlikely such a person could demonstrate that return to Kuwait would put the person at a real risk of persecution on the basis of being Bidoon alone.[2] The Tribunal does not accept that because he was a documented Bidoon in Kuwait in 2007-2008, he was not an Iraqi citizen then or in 2011.

    [1] UK Home Office, Country Information and Guidance Kuwait Bidoon, 3 February 2014, at 1.4.1 to 1.4.5 and 1.5.6 to 1.5.8.

    [2] UK Home Office Country Information and Guidance Kuwaiti Bidoon 3 February 2014, Chapter 1 and in particular 1.1.6.

11. It does not accept that because the Iraqi documents are dated 2012 and the passports 2013 and came into existence after the applicant provided the subject information, they do not demonstrate that the information was wrong at the earlier time.  The applicant has given no explanation to support that contention. He has not maintained that the Iraqi documents are false.

12. The Tribunal finds that the applicant did not comply with s 101(a) of the Act as he did not answer question 4 in Form is 866 C Application for an applicant who wishes to submit their own claims to be a refugee – “What other names have you been known by?”  According to his children’s Iraqi identity cards and citizenship certificates, he was also known [by an alias].  The Tribunal has taken into account the evidence of the applicant and the translator about naming conventions, but accepts that one version of the applicant’s name is [an alias].

13. The Tribunal finds that the applicant did not comply with s 101(b) of the Act in the way described in the s.107 notice, in the manner particularised in the notice.

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

Should the visa be cancelled?

1. 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).

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

• the correct information

• the content of the genuine document (if any)

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

• the circumstances in which the non-compliance occurred

• the present circumstances of the visa holder

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

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

• the time that has elapsed since the non-compliance

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

• any contribution made by the holder to the community. 

1. 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) 190 248. 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.

2. For the reasons set out earlier in this decision, the Tribunal finds that the applicant was and is a citizen of Iraq.  The decision to grant the visa was based on the applicant’s incorrect claim to be stateless.  The applicant has consistently denied that he provided incorrect information, which the Tribunal does not accept. He was evasive about whether the Iraqi documents his wife provided in support of her partner application were genuine or not.  He has been in Australia for almost eight years.  It has been about seven years since his non-compliance.  He claims to be the carer providing full-time care to a disabled person who suffers from multiple psychological and physical medical conditions, including showering, giving medicine, taking the person to medical appointments and calming him at night if he suffered a crisis. There is no corroborative evidence that he is.   His wife and [children] have been living in Iraq since July 2011.  He has visited them twice.

3. He has no problems and fears no danger in Iraq.  An International Treaties Obligations Clearance Letter has considered Australia’s obligations to the applicant under the Refugees Convention and CAT and ICCPR and found he is not a person in respect of whom Australia has non-refoulement obligations under any of them.

4. The Tribunal accepts that the applicant was looking forward to having his family in Australia. It does not accept that he has answered all questions put to him in relation to this matter correctly, honestly and to the best of his knowledge truly and accurately.

5. There is no evidence before the Tribunal that the applicant has been in trouble with the police or any other authorities.

6. The applicant did not maintain before the Tribunal that the Iraqi lawyer had mismanaged the file and that the Split family provision visa would have been the appropriate visa to apply for.  He did not maintain that he was the victim of a dishonest and corrupt regime.  The Tribunal notes the applicant’s sworn evidence was that documents were sent to his solicitor in Australia, who in turn, sent them to the Australian embassy in [Country 4].    

7. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Josephine Kelly
Senior Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

1. Interpretation

   (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.

2. Interpretation

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).

1. Completion 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.

2. Information 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.

3. Incorrect 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.

4. Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

5. Notice 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.