1711147 (Refugee)

[2020] AATA 1537

1711147 (Refugee) [2020] AATA 1537 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711147

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Josephine Kelly

DATE:22 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2020 at 11:24am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – imputed political opinion – employment with international forces – particular social group – race – Bidoon – three return visits to Iraq – militia opposing foreign forces – compassionate family visits – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 46, 48, 65
Migration Regulations 1994, Schedule 2

CASES

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
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 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that that applicant provided incorrect information in his XA-866 Protection visa application, specifically Questions 46 and 48 of Form 866C. The issues in the present case are whether the notice issued by the Minister’s delegate complied with the requirements in s 107, whether the specified ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 July 2017 and 19 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearings and provided written submissions.

5. 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

6. 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.

7. 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.

   Did the notice comply with the requirements in s.107? 

8. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.  The applicant’s representative made oral and written submissions to the following effect:

   -The delegate of the Minister had not concluded that the applicant had not complied with one of the sections or subsections set out in s 107(1) and therefore had not reached the state of mind required to engage s 107(1) and permit notice to be given under that section (Zhong v Minister for Immigration and Citizenship [2008] FCA 507 (1 April 2008) at [72] to [77]).

   -The notice failed to particularise the applicant’s non-compliance as required by s 107(1)(a) (Zhong at [79] – [82]).

9. The notice of intention to consider cancellation dated 2 December 2016 given to the Applicant included the following:

   On 8 March 2013 you lodged an application for a Protection visa, Form 866C – Application for a Protection (Class XA) visa.  In that application you were asked the following questions in relation to your protection claims:

   Questions 46 and 48 you stated:

   ‘Please refer to my attached statement of claims’

   Question 46.     Who do you think may harm/mistreat you if you go back?

   Question 48.     Do you think the authorities of that country can and will protect you if you go back?

   In response to Questions 46 and 48 you made the following statement:

   ‘I lived most of my life in Iraq and I fear returning there because I have no legal status in Iraq and I can expect no protection from the Authorities.  When I lived in Iraq I had worked with the US forces and many people who did that received threats.  Previously I had worked with Australian troops and I fear retributions from the Militia who are against all foreign forces intrusion in Iraq and against all who assisted them.  If I was able to return to Iraq I would be treated badly because I am stateless and because I had assisted US and Australian forces.

   On 12 March 2013 based on the information you provided, as well as meeting other relevant criteria you were granted a XA-866 Protection (Permanent) visa.

   [In] January 2014 you departed Australia and stated on your outgoing passenger card that you intend to spend most time abroad in Iraq.

   [In] April 2014 you arrived in Australia after spending three months away.

   [In] January 2015 you departed Australia and stated on your outgoing passenger card that you intend to spend most time abroad in Iraq.

   [In] June 2015 you arrived in Australia after spending five months away.  On your incoming passenger card you stated that you had spent most of your time abroad in Iraq.

   [In] April 2016 you departed Australia and indicated on your outgoing passenger card that you intend to spend most time abroad in Iraq.

   [In] August 2016 you arrived in Australia after spending four months overseas. On your incoming passenger card you indicated that you spent most time abroad in Iraq.

   Your Titre de voyage … was examined on arrival which had the following Iraqi arrival and departure stamps in it:

   [August] 2016 – Departure – Republic of Iraq – Al Basrah International Airport

   [April] 2016 – Entry – Republic of Iraq – Al Basrah International Airport

   [June] 2015 – Departure – Republic of Ira – Al Basrah International Airport

   [January] 2015 – Entry – Republic of Iraq – Al Basrah International Airport

   The Iraqi entry and departure dates confirm that you have spent approximately nine months living in Iraq from [January] 2015 – [August] 2016.  Additionally departmental movement records confirm that you spent approximately three months outside of Australia ([January] 2014 – [April] 2014) and your passenger cards for that trip indicate that this period was spent living in Iraq.

   Therefore it appears that you have spent approximately one year in total living in Iraq since the grant of your XA-866 protection visa.

   Your Protection visa was granted on the basis that you satisfied the minister that you engaged Australia’s protection obligations under the Refugees Convention.  These obligations were based upon your claimed adverse political profile where you have consistently maintained that you will be persecuted in Iraq because you have assisted Australia and US forces in Iraq.

   It appears that you have provided incorrect answers/information in your application for a protection visa at questions 46 and 48 (see above) as voluntary return back to Iraq for significant periods of time without issues suggests that you did not hold the claimed adverse profile in your Protection visa application.

   Question 46

   I consider that you have not complied with section 101(b) because it appears that you have lived for approximately one year (in total) in Iraq since the grant of your Protection visa without any apparent Protection related issues.

   Question 48

   I consider that you have not complied with section 101(b) because it appears that you have spent approximately one year (in total) living in Iraq since the grant of our Protection visa without any apparent Protection related issue.

   If you did not comply with section 101(b) of the Migration Act 1958, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply as stipulated in s 100 described above.

   Possible reassessment of non-refoulement obligations

   The response you provide to the information/observations made and put to you in this Notice may be used to re-assess Australia’s non-refoulement obligations in relation to you.

   Your response to the following additional information will also be considered:

   . I note that you have returned to Iraq for a cumulative period of 337 days since the grant of your Protection visa.  Your actions appear to be in contradiction with your claims that you would be persecuted if you returned to Iraq.  Your voluntary re-entry to Iraq without incident on a number of occasions may lead to a finding that Australia does not have non-refoulement obligations in relation to you.

10. The delegate stated clearly in the notice that he considered that the applicant had not complied with s 101(b) of the Act which demonstrated that he had reached the state of mind required to engage s 107(1) and permit notice to be given under that section.

11. The Applicant’s legal representative argued that the delegate did not sufficiently particularise the incorrect information provided because the notice did not specify the adverse political profile being referred to. He  suggested the following profiles that may have been referred to:

    a.The applicant being a member of a particular social group, “Bidoon (that is, a stateless person) in Iraq”

    b.The applicant being a person who worked for the US and Australian forces

    c.The applicant’s religion, being Sunni person “minority” “who lived in Shia dominated area”

12. The notice contains no reference to the applicant’s religion because it was not relevant.  It was not referred to in his statement in response to questions 46 and 48. 

13. The notice clearly identifies the claimed adverse political profile being referred to:

    These (protection) obligations were based upon your claimed adverse political profile where you have consistently maintained that you will be persecuted in Iraq because you have assisted Australia and US forces in Iraq.

14. Another formulation of the argument put on behalf of the applicant, was that the agents of persecution were not identified. Taking into account all the information set out in the notice, including, the applicant’s statement in his application, it is clear that identified agent of persecution was the “Militia who are against all foreign forces intrusion in Iraq and against all who assisted them”. 

15. The notice refers to his claim that because he was stateless, the authorities would not protect him from that militia.   

16. The notice did include particulars of the possible non-compliance as required by s 107(1)(a) of the Act.

17. 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?

18. The next issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s 101(b) of the Act. The particularisation of the non-compliance in the notice has been set out above.

19. In his response to the notice issued under s 107 of the Act, the applicant acknowledged that he had returned to Iraq during the periods identified in that notice. He stated that he returned to care for his sick mother and kept a ‘low profile during his stay’.  His representative stated that the applicant kept a low profile because he stayed at home all the time in his [relative’s] house which was a long way from his family home.

20. The death certificate the applicant provided for his mother stated that she died [in] February 2017 aged [age] years.  

21. During the first hearing, the applicant said that during his first return trip in 2014, he had become engaged to a particular woman because his mother insisted upon on it.  He said that there was a wedding ceremony to take photographs because he was told it was important for the application to sponsor her to come to Australia, but they did not marry. He contacted the department about sponsoring her [in] May 2014.  He said that he could not marry and leave her there. He also said that he did not want her and did not lodge any application.

22. During the second hearing, the applicant said that his wife had left him and that they had married when he returned to Iraq.  He said that she called him every day and wants him to go back but he cannot and they fight every day. He said that he had seen his wife “somewhere in Basra” when he returned to Iraq in 2015.  He saw her in 2016 and her family did not want him.  He tried to bring her to Australia and told her to wait. They have no children.

23. The evidence about his marital status was inconsistent.

24. The applicant did not satisfactorily explain the reasons for the timing of his trips or the length of his visits to Iraq.  He said that his mother was very ill in 2015 and he took her here and there to doctors but then denied taking her to doctors.  He said someone else took her to doctors and obtained prescriptions. He provided two medical reports he said related to his mother, one dated [June] 2016 and the other undated. He claimed that he returned because she had no-one to look after her, but according to him some one was available to assist her even when he was present.

25. He said that his brothers had moved to [two different countries] and he went back because they did not have travel documents.  He claimed that they had left Iraq in August 2013 around the time their father died, because of threats to them because of the applicant, and then his mother lived alone in Nasiriyah. He said that his sister had gone to [another country] in 2012.

26. His evidence about where his mother lived was contradictory.  He said that she moved from Nasiriyah to Basra a long time ago but also said that she moved to a relative’s house in Basra from Nasiriyah each time he travelled there.  The implication was that he was safer in Basra than in Nasiriyah.

27. He had a photograph which he said showed him carrying his mother to the toilet in the yard of the house where they stayed in Basra. When asked why he would have such a photograph taken, the applicant said that he might be asked why he was going back to Iraq.  It showed he was looking after his mother.  In relation to photographs he said were taken in 2016, he said that they were taken because he travelled too much, too often, and was wondering whether he would be questioned.  He denied having heard that others had had their visas cancelled because they travelled to Iraq.

28. The representative’s written submission provided after the first hearing referred to paragraph 125 of the UNHCR (United Nations High Commissioner for Refugees) handbook on procedures and criteria for determining refugee status under the 1951 convention and 1967 protocol which addresses how to assess cases where a refugee visits his former country on a travel document issued by his country of residence:

    … Cases of this kind should, however, be judged on their individual merits.  Visiting an older sick parent will have different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.

29. Taking into account all the circumstances of the application, the Tribunal finds that the number of times the applicant voluntarily returned to Iraq and the length of time he stayed, without being threatened with or suffering any harm, are not consistent with his claims to fear persecution from a militia because he had assisted Australian and US forces in Iraq and that that he could expect no protection from the Authorities because had has no legal status in Iraq.  In making those findings, the Tribunal has taken into account his claims to have stayed some distance from his family home and to have kept a low profile.  While it is understandable that he wished to visit his mother, the Tribunal does not accept that he had to return to provide care for her. If she was unwell as he claims, someone else had to be caring for her when he was not present and according to him, someone else had to take her to doctors and obtain prescriptions for her when he was visiting her. As stated above, he did not give cogent reasons why he returned to and left Iraq when he did.  His evidence was inconsistent, unpersuasive and unreliable.

30. The applicant’s answers to questions 46 and 48 of Form 866C are incorrect. The applicant did not comply with s 101(b) of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

31. 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).

32. 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.

33. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship 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 (PAM 3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

34. Following is consideration of the prescribed circumstances and PAM 3.

35. The correct information was that the applicant did not fear returning to Iraq because he had no legal status there and could expect no protection from the Authorities and he did not fear retributions from the militia who are against all foreign forces intrusion in Iraq and against all who assisted them because he had worked with US forces and Australian troops.

36. If the applicant had given the correct information, he would not have been found to engage Australia’s protection obligations and the visa would not have been granted. This consideration weighs strongly in favour of cancelling the visa.

1. The circumstance the content of the genuine document is not relevant in this case.

2. The decision to grant the applicant’s visa was largely based on incorrect information.  This consideration weighs strongly in favour of cancelling the visa.

3. The circumstances of the non-compliance were that the applicant intentionally provided the incorrect information in his statement attached to his protection application which weighs strongly in favour of cancelling the visa.

4. There was no contemporaneous medical evidence about the applicant’s physical or mental health. There was evidence in 2016 that he suffered [from two conditions]. During the second hearing, the applicant said that he does not sleep and he cannot work after losing his mother and his wife.  He said that he has been very sick and every now and then is taken by ambulance and given something to calm him down. He said that he does not eat and is given a little food. His representative said that the applicant cried and he was unable to communicate with him.

5. The Tribunal accepts that the regrettably lengthy and uncertain process following the receipt of the s 107 notice, the subsequent cancellation, and the legal process relating to the question of this Tribunal’s jurisdiction which was decided in [case deleted], has been very difficult for the applicant. In addition, he has suffered the death of his mother and has a strained relationship with his fiancée/wife who is in Iraq. 

6. The applicant’s evidence was that he has no siblings or parents in Iraq.  He does have a cousin he mentioned.  He has a wife/fiancée with whom he has maintained contact since 2014.  In Australia, he only spoke of living with a friend.  He has no other support.  It was not suggested that his health could not be appropriately dealt with in Iraq.   He has been able to stay in Iraq in a relative’s house for lengthy periods.  It is not apparent that he would have difficulty returning to live in Iraq, leaving aside non-refoulement issues which are addressed below.

7. The applicant’s present circumstances do not weigh against cancelling the visa.   

8. The applicant has maintained his claims to fear harm if he returns to Iraq for the reasons given in answer to questions 46 and 48.  Those answers were incorrect.  He has taken no action to rectify his position pursuant to s 104 or s 105 of the Act.  This consideration weighs in favour of cancelling the visa.

9. There are no other known instances of non-compliance by the applicant. This consideration warrants no weight being given to it because visa holders are expected to abide by the law.

10. The non-compliance occurred when the applicant lodged his application for a Protection visa, Form 866C on 8 March 2013, almost seven years ago. More than three years have elapsed since the notice of intention to consider cancellation was given. Some two years of that period are attributable to legal processes relating to this Tribunal’s jurisdiction, referred to in paragraph 41.  This consideration is given no weight because in that time, the applicant has not established a new life in or links with Australia.

11. There are no known breaches of the law since the non-compliance. Visa holders and applicant’s for review of cancellation decisions are expected to abide by the law.  No weight is given to this consideration.

12. The applicant said that he worked when he first came to Australia.  He has made no other contribution to the community.  No weight is given to this consideration.

13. The Departmental PAM 3 guidelines cover the following matters which are relevant in in this case:

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

    ·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations.   

14. The cancellation of the visa will result in the applicant becoming unlawful and subject to detention. He may be deported if he does not return to Iraq voluntarily.  As an IMA, indefinite detention is a possibility. The Tribunal does not accept that Australia has non-refoulement obligations to the applicant for the reasons given below.  He can return voluntarily to Iraq, as he has three times already.  He has a wife/fiancee in Iraq. Nevertheless, some weight is given to this consideration against cancelling the visa.

15. The effect of ss 46(1), 46A(1) and 48A(1B) of the Act is that the cancellation of the applicant’s protection visa will bar him from making any valid visa application while in Australia unless the Minister intervenes and lifts the decision bars.  No weight is given to this consideration because it is the consequence of his giving incorrect information.   

16. The applicant’s legal representative raised the circumstances surrounding the ITOA (International Treaties Obligation Assessment) dated [in] February 2017.  By letter dated 6 January 2017, the applicant was notified that an ITOA was commenced on that date “in order to assess whether the circumstances of your case engage Australia’s non-refoulement obligations”. The letter advised that the applicant would:

    receive procedural fairness during the ITOA process.  In particular this means that the Department will ask you to comment on any credible adverse information which is relevant and significant to the decision.  You will be given a reasonable opportunity to respond to that information before the ITOA is finished

    You have 21 calendar days from the date you are taken to have received this letter to provide further information which you would like to have taken into consideration in this ITOA.

17. There is no evidence before the Tribunal to suggest that the applicant provided any information in response to that letter.

18. By letter dated 13 February 2017, the applicant was notified the applicant that the Department “will no longer undertake an ITOA in your case”.  The ITOA was prepared the next day, headed “International Treaties Obligations Clearance Letter”. 

19. The applicant’s representative claimed that he was unaware that the ITOA had been prepared until he was sent a copy by the Tribunal on 17 July 2017 after the first hearing. He addressed the ITAO’s “negative outcome” in written-submissions provided after the first hearing.   He argued that the Department’s failure to advise that the ITOA had in fact been done was a breach of procedural fairness issue because his client had no opportunity to comment on the ITOA.

20. It is apparent from the reviewable decision that an ITAO had been prepared [in] February 2017.  The reviewable decision includes a summary of the findings of the onshore protection delegate.

21. In Minister for Immigration and Citizenship v. SZQRB [2013] FCAFC 33 on 20 March 2013, the Full Federal Court held that officers conducting ITOAs must accord the person common law procedural fairness because it is a non-statutory process. The ITOA referred to UK Home Office information about the treatment of Sunnis in the southern governorates of Iraq and to a Department of Foreign Affairs and Trade report about the number of Iraqis seeking asylum in Australia and then returning to Iraq. The information is adverse to the applicant and he did not get an opportunity to comment on it before the decision was made to cancel his visa.

22. Assuming that the delegate’s decision was invalid for that reason, this Tribunal has jurisdiction.[1]  On review, the applicant has had the opportunity to provide country information for the first and second hearings and has not done so. 

    [1] [Source deleted]; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37.

23. The evidence before the Tribunal is that the applicant has claimed to fear serious or significant harm if he returns to Iraq because of:  being targeted by militia groups because he worked for US and/or Australian forces in Iraq; the militias would consider him to be an “agent” if he returned because he has been in another country; as a Bidoon in Iraq he was treated differently and had no security and no future; he is stateless and will be taken to prison if he returns to Iraq because he will be thought to have committed a crime by leaving and would be tortured or beaten; he could not return to Kuwait because he is stateless and would have no rights there or be allowed to enter; he is a Sunni Muslim Bidoon living in a Shia area of Iraq and was fear of going to mosque and prayed at home.

24. The evidence is that the applicant had claimed to be a stateless Bidoon born in Kuwait who was deported to Iraq with his family when he was [age] years old. Two protection visa assessments and the Refugee Review Tribunal found that he is an Iraqi citizen based primarily on a copy of an Iraqi National Identify Card he presented to the Department.  The Tribunal finds that he holds Iraqi citizenship.  He is not stateless. 

25. The applicant’s conduct in returning to Iraq three times and staying for periods of almost a year, is inconsistent with his claims to fear serious or significant harm set out above, considered separately, in any combination, or cumulatively.   In coming to those conclusions, the Tribunal has not accepted his claim to have kept a low profile and has taken into account his claim that he did not return to Nasiriya but stayed in Basra.

26. The Tribunal does not accept that Australia has non-refoulement obligations to the applicant.  This consideration weighs heavily in favour of cancelling the visa.

27. Taking into account all the relevant considerations in this case, the considerations favouring cancellation of the applicant’s visa strongly outweigh considerations in favour of not cancelling the visa. 

28. 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

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

    Josephine Kelly
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.