1711326 (Refugee)

[2019] AATA 6767

1711326 (Refugee) [2019] AATA 6767 (2 December 2019)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711326

COUNTRY OF REFERENCE:                   Iran

MEMBER:John Cipolla

DATE OF DECISION:  2 December 2019

DATE CORRIGENDUM

SIGNED:17 December 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision: The second date referred to in paragraph 5 should read 29 May 2017. The subsequent phrase “(please check date)” should be removed.

John Cipolla
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711326

COUNTRY OF REFERENCE:                   Iran

MEMBER:John Cipolla

DATE:2 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2019 at 5:25pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – not stateless Faili Kurd but Iranian citizen of Faili Kurd ethnicity – ancestry and documentation – discretion to cancel visa – marriage to Australian citizen and role in life of step-child – study, work and contribution to the community – wife’s Australian divorce from abusive first husband not recognised by Islamic and Iranian law – country information about adultery and violence against women – decision under review set aside

LEGISLATION            
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

CASES

MIAC v Khadgi (2010) 190 FCR 248

MHA v CSH18 [2019] FCAFC 80

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 applicant annexed a copy of the Departmental decision record to the review application lodged with the Tribunal. 

3. Recourse to the decision record indicates that the applicant arrived in Australia [in] January 2010. On 5 February 2010 the applicant underwent an Entry Interview undertaken on Christmas Island and provided his claims to engage Australia’s protection obligations. When the applicant completed the entry interview form and the question pertaining to citizenship the applicant answered “stateless no nationality.”  On 21 March 2010 the applicant attended a Refugee Status Assessment Interview to determine whether the applicant was owed protection obligations by Australia. On 27 April 2010 a Refugee Status Assessment Officer found the applicant’s claims did not meet the criteria set out in Article 1A of the Convention relating to the Status of Refugees and its 1967 protocol. On 3 May 2010 the applicant submitted a request for Independent Merits Review. On 14 September 2010 the Independent Merits Review Officer found that the applicant’s claims were credible and that he met the definition of a refugee and the applicant was invited to submit a Form 866 application for protection. The applicant was granted protection on the basis of being a stateless Faili Kurd on 30 September 2010.

4. In a Notice of Intention to Consider Cancellation (NOICC) issued under s.107 of the Act dated 12 April 2017, a delegate of the Minister informed the applicant that she considered that the applicant had not complied with s.101(b) of the Act in that he had provided incorrect information in his visa application as to his statelessness, citizenship and country of nationality and his fear of persecution in Iran as a stateless Faili Kurd.

5. On 26 May 2017 a delegate of the Minister cancelled the applicant’s visa and on 26 May 2017 (please check date) the applicant applied to this Tribunal for a review of the decision. 

6. The Tribunal wrote to the applicant on 8 December 2017. The Tribunal advised the applicant in its letter that the Department had informed the Tribunal that the officer who had made the decision to cancel the applicant’s visa did not have the delegated power to cancel the visa under s.109 of the Act at the time they made the decision. The letter advised the applicant about the proposed course of action with regard to the delegation issue.

7. On 19 June 2018 the Tribunal again wrote to the applicant with an update about the delegation issue. That letter noted that on 29 March 2018, the Tribunal (differently constituted) held a hearing in relation to the s.109 delegation issue and that the applicant in this review had commenced proceedings in the Federal Circuit Court of Australia. The letter specified the grounds on which the applicant was seeking relief in the Federal Circuit Court.

8. On 21 January 2019 the Tribunal wrote to the applicant to advise that the FCC had determined that the Tribunal could review the matter but did not have the power to affirm the decision under review. The letter noted that the Minister had lodged an appeal against the FCC judgement and that the matter would be dealt with by the Federal Court in the February to March 2019 sitting period. The Tribunal provided a further update about the outcome of the Federal Court review at the review hearing.

   ISSUES IN REVIEW

9. The issues in the review are whether there was non-compliance in the way described in the NOICC sent to the applicant, and if so, whether the visa should be cancelled.  A summary of the relevant law is set out in Attachment A.

   REVIEW HEARING

10. The applicant appeared before the Tribunal on 19 November 2019 to give evidence.  The Tribunal also took evidence from the applicant’s Australian citizen [wife] and the applicant’s employer [Mr A].  The applicant’s representative attended the review hearing.

11. The applicant and the Tribunal were assisted as required by an accredited Persian interpreter.

12. At the outset of the review hearing the Tribunal made reference to the impediments caused by the fact that the Minister had not delegated his power of cancellation to the Officer that made the cancellation decision. The Tribunal made reference to the correspondence provided to the applicant about the delegation issue.

13. The Tribunal made reference to the decision of the Federal Court of Australia in MHA v CSH18 [2019] FCAFC 80. The Tribunal noted that the Ministers appeal in the Federal Court of Australia was successful. The Tribunal noted that the judgement provides full Federal Court authority for the extent of the Tribunal’s powers to review a purported decision, where the person who made the decision lacked the requisite delegation to do so and is relevant to a cohort of cancellation cases before the Tribunal, including the case of the review applicant currently before the Tribunal, that had been affected by a delegation error. The Tribunal noted that the case provides authority on the meaning of section 415(1) and that the words ‘powers and discretions that are conferred by this Act on the person who made the decision mean that in the case of an ineffective delegation the Tribunal can proceed to review the matter as if the delegation had been effective.

    Non-disclosure certificate

14. The Tribunal noted at the outset of the hearing that is had before it the applicant's Departmental files, including both the protection visa and cancellation files relating to the protection visa.

15. In the case of the cancellation, the delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.438 of the Act. Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

16. The certificate states that disclosure of the information would be contrary to the public interest because it contains documents or information that demonstrates how the Department conducts its law enforcement activities, the release of which could undermine future law enforcement practices.

17. The Tribunal advised the applicant that it was satisfied that the s.438 certificate was valid. The documents covered by the certificate pertained to evidence of routine investigations undertaken by the Department in cases such as this. They contained no adverse information that is not otherwise disclosed in the s.107 notice and the delegate's decision.

18. At the outset of the review the Tribunal went into extensive details about the respective issues in the review and the prospective outcomes of the review process. The Tribunal advised the applicant that it had recourse to the applicant’s protection visa file, the Departmental cancellation file and had considered evidence provided at review stage including a submission handed to the Tribunal just prior to the commencement of the hearing.

19. At the outset of the review hearing the applicant conceded that he had provided incorrect information to the Department in support of his protection visa application.  The applicant advised the Tribunal that he was a Faili Kurd but that he held Iranian citizenship and possessed a valid Iranian identification card.

20. The applicant provided the Tribunal with his personal details. The applicant advised that he was born in Tehran Iran.

21. The applicant advised that he was Muslim but was not practising. The applicant advised the Tribunal that his father’s parents were of Kurdish ethnicity and his mother’s ethnicity was Kurdish as well. The applicant advised that his father’s parents moved between Iran and Iraq but settled in Ilam in Iran.  The applicant stated that his mother’s family were living in Tehran.  The applicant advised that Illam in Iran had a large Kurdish population. The applicant advised his father had passed away in 2009 and his mother was alive. The applicant stated that he had [brothers] all living in Iran along with one sister also living in Iran.

22. The Tribunal advised the applicant that as he had conceded that the grounds for cancellation of his visa existed, the Tribunal needed to consider the relevant discretionary considerations to determine whether or not the applicant’s visa should be cancelled. The Tribunal made reference to each of the relevant discretionary considerations that is was required to have regard to.

23. The applicant advised that he was Iranian citizen of Faili Kurd ethnicity. The applicant advised the Tribunal that there were two types of Faili Kurds in Iran those that were truly stateless and those that possessed Iranian citizenship.

24. The Tribunal noted that the decision to grant the applicant a visa was based on incorrect information namely that the applicant was a stateless Faili Kurd when in fact he held Iranian citizenship.

25. The applicant advised the Tribunal that he wished to explain what had happened to him in Iran and what happened on the boat trip to Australia.

26. The applicant stated that he was [an Occupation 1] in Iran that he worked in a [Workplace] in Iran. The applicant stated that he fell in love with a woman in Iran whose father had moved to Australia via illegal boat. The applicant stated that before his father passed away in 2009 he proposed to this woman on a number of occasions but her family refused to acknowledge the proposal particularly the woman’s mother. The applicant stated that at the time of his proposal the woman was around [age] years old and he was between [age] years old and there was a roughly a 10 year age gap between them. The applicant stated that he and this woman made a promise to each other that they would never marry anyone else. The applicant stated that his father passed away in 2009 and the custom in Iran is that you have to grieve for one year and it was not possible to pursue marriage during that one-year period. The applicant stated that because of the refusal of this woman’s family to accept his proposal he decided that he would move to Australia to forget about her. The applicant stated that he heard about the potential to engage with people smugglers to travel to Australia.

27. The Tribunal asked the applicant about the business model used by the smugglers. The applicant stated that he was told that he needed to claim that he was a stateless Faili Kurd when he arrived in Australia but the smugglers never mentioned that he needed to prove his ethnicity as a Faili Kurd. The applicant advised that he was told that he would receive more information when he arrived in [Country 1]. The applicant stated that had the people smugglers been honest he may have been able to claim protection on another ground.

28. The Tribunal asked the applicant whether he received more information once he was in [Country 1]. The applicant stated that he met people in [Country 1] and once again it was reinforced that the applicant should claim to be stateless Faili Kurd.  The applicant was also advised to say that he had no documents to support this. The applicant advised that he travelled from Tehran to [Country 1] by air and that he was met by smugglers in [Country 1]. The applicant stated that he was then driven an extensive distance and taken to a small boat which was meant to transfer the applicant to a much larger boat but the applicant stated that the boat that he was transferred to was also small. The applicant stated there were about [number] people on board the boat and that the boat spent 3 to 4 nights at sea before it was intercepted by the Australian Navy. The applicant advised that the smugglers told him that if he was to say that he was an Iranian citizen he would need a lot of documents to support this and that he may be deported back to Iran.  The applicant stated that around the time of his departure from Iran there had been significant protests against the government known as the Green Movement.  The applicant stated that he was very scared of being returned to Iran as there had been a crackdown by the government on its citizens as a result of the Green Movement.  The applicant advised that the smugglers told him that as he was of Kurdish ethnicity he needed to say that he did not have any documents. The applicant stated that when he arrived on the boat for the trip to Australia he was extremely tired. The applicant stated that he travelled to [Country 1] on a passport in his own name and that once he arrived in [Country 1] the people smugglers told him that he needed to destroy his passport. The applicant stated that the boat trip was very traumatic and that he suffered significant sunburn and physical sickness on the boat. The applicant stated that at the time that he arrived on Christmas Island he was suffering with significant motion sickness and that he was scared and that he thought if he told the Australian authorities that he was an Iranian citizen and worked in a [Workplace] that he would be sent back to Iran. Once again the applicant reiterated that he claimed to be stateless on the advice of the people smugglers. The applicant claimed that the people smugglers told him that if he stated that he was an Iranian citizen that he would be returned to his country of origin.

29. The Tribunal asked the applicant about his post detention life in Australia. The applicant stated that he had always resided in Melbourne. The applicant stated that he initially lived in share accommodation in [Suburb 1]. The applicant stated that he had also lived in [Suburbs 2, 3 and 4].

30. The applicant advised the Tribunal that he met his wife in 2015. The applicant advised that he had a range of qualifications. The applicant advised that he had completed a Bachelor of [Subject 1] in Iran. The applicant had completed an Advanced Diploma of [Subject 1] at [Educational institute 1] in Victoria. The applicant stated that when he was released from immigration detention that he made an attempt to find the woman whom he had proposed to in Iran. The applicant advised that once he located her that his ex-girlfriend told him that she was no longer interested in him. The applicant stated that his ex-girlfriend was to his knowledge now married. The applicant provided her name and stated that she was now around [age] years old. The applicant stated that he had almost completed his [Occupation 2]’s apprenticeship in Victoria and that he would receive his license in the next few months. The applicant stated that he had worked for his current employer for an extended period of time.

31. The applicant advised that he met his wife in 2015 and they were married in 2017. The applicant advised that his wife had previously been married to an Iranian and there was one child, a daughter of that relationship. The applicant stated that the relationship broke down because his ex-wife’s husband had been verbally abusive and physically abusive to his wife. The applicant advised that his wife had been formally divorced in Australia however she was still in the eyes of Islamic law married to her first husband as he had not renounced the marital relationship as is required under Islamic law. The applicant advised that his wife’s daughter who is now [age] years of age lived with him and his wife and was currently studying [at] [University].

32. The Tribunal asked the applicant about his wife’s occupation. The applicant advised that his wife was [an Occupation 3]. He advised that as part of her registration she needed to work in remote and rural parts of Victoria and/or be involved in [particular] service before she would be allowed to [work] in metropolitan areas. The applicant advised that his wife had worked for an extended period of time in [Town] which he described as a depressed community around [distance] km from Melbourne. He advised that his wife had worked in [Town] for many years as [Roles 1, 2 and 3].  The applicant stated that his wife was currently working as [an Occupation 3] engaged in [detail deleted] all around metropolitan Melbourne.

33. The Tribunal asked the applicant to describe the relationship that he had with his stepdaughter. He advised that he had a very close relationship with his stepdaughter in the time that he had been with her mother. The applicant stated that his wife undertook a lot of [work] as [an Occupation 3] and for this reason he had provided substantial support and care to his stepdaughter. He also advised that his wife and step-daughter had been in an abusive and violent relationship with his wife’s ex-husband and he had worked hard to build a trusting and calm environment for both his wife and his step-daughter.

34. The Tribunal took evidence from the applicant’s wife.  The witness advised that she came to Australia under the umbrella of her former [husband]’s skilled visa in 2010. She advised that her former husband applied for a skilled visa in Iran in 2008 on the basis of his skills as [an Occupation]. The witness advised that she married her first husband in around 1995 and that it was an arranged marriage. The witness advised that she was of Persian ethnicity. She advised that her ex-husband was also Persian. She advised that her ex-husband was Muslim and that he practised his religion and that she was also Muslim. The witness advised that there was one child of her former marriage, a daughter, born on [Date] and that she was currently [age] years old.

35. The witness advised that she met her husband, the applicant, at the end of 2014, and that they had been in an ongoing relationship since 2015 and had cohabited since March 2015. They were formally married [in] March 2017.

36. The Tribunal asked the witness about the breakdown of her first marital relationship. The witness stated that in Iran a man has to agree to separation and divorce under Islamic law. The witness stated that she and her ex-husband fought frequently and that her ex-husband was extremely abusive and controlling. The witness stated that it was very shameful for a woman to separate from her husband. The witness stated that she had completed [studies] and as an educated person wanted to provide a safe environment for both herself and her daughter. The witness stated that she hoped that after migration to Australia things would improve in her relationship with her ex-husband but they did not. The witness stated that after she and her ex-husband separated her former father-in-law threatened her that they would attempt to take her daughter from her. The witness described years of physical abuse, mental abuse and verbal abuse during her first marriage. The witness stated that when she arrived in Australia with her ex-husband her daughter was [age] years old. The witness stated that when she attempted to get her [qualifications] recognised in Australia that her ex-husband was very threatening and abusive towards her. Eventually he left the relationship. The witness stated that she had formally divorced her husband in Australia but her ex-husband had not given her an Islamic divorce so in the eyes of Islam she was still married to her ex-husband. She advised that she could not relocate to Iran because she would be deemed to be an adulteress in that country and subject to retribution from her ex-husband’s family and potential retribution from the state as a result of engaging in adultery. The witness stated that since the breakdown of her marital relationship there had been limited contact between her daughter and her ex-husband. The witness stated that she had encouraged more recently her daughter to maintain some relationship with her father.

1. The Tribunal asked the witness what type of relationship her daughter had with the applicant. The witness stated that she had been in a relationship with the applicant during her daughter’s formative [years]. She advised that the applicant was extremely kind to her daughter. She advised that in her role as [Role 1] and working in remote regional Victoria there was a lot of travel involved and that she often had to work [detail deleted]. She advised that the applicant had provided care and support during these times to her daughter. She described the applicant as being very protective towards her and her daughter. She advised that the applicant would take her daughter to school and pick her up from school.

2. The Tribunal asked the witness what impact it would have on her daughter if the applicant had to return to Iran. The witness stated that it would have a significant impact on the family unit. The witness reiterated that because of the fact that her ex-husband had refused to grant her an Islamic divorce she was, in the eyes of Islam still married to him. She advised again that she could not relocate to Iran in the event that her husband, the applicant had to return to Iran. The witness stated that both she and her daughter were very stressed out about the prospect of the applicant having to return to Iran given the length and stability of their marital relationship. She advised that her daughter was concerned about the applicant’s tenuous position since the cancellation of his visa and that she had been worried about her daughter’s mental health and the impact that the cancellation was having on her daughter.

3. The witness stated that in the time that she had worked as [an Occupation 3] in Victoria that part of her license required her to work doing [detail deleted] or work in remote rural areas of Victoria. The witness advised that between 2012 and 2017 she had worked extensively in [Town] both as [Role 1] and as [an Occupation 3] and with [Role 2] in that location. The witness advised that [Town] was a low socio-economic area where there were high levels of domestic violence, substance abuse, mental illness and poverty. The witness stated that she would be able to obtain, if required, references and endorsements from [professionals] that she had worked with during her extensive placement in [Town]. The witness stated that currently she was working extensive hours as [an Occupation 3] covering a significant part of the Melbourne metropolitan area.

4. The Tribunal noted that the applicant and the witness had been trying to conceive a child through IVF and written evidence corroborative of these attempts have been provided to the Tribunal. The witness confirmed that she and her husband were still trying to conceive a baby and that she had been advised that she had a window of opportunity to do this up until [a certain age].

5. The witness stated that she had been able to make a significant contribution to the Australian community as [an Occupation 3]. She advised that she loved working in [Role 2] and in a rural community and believed that she had made a significant contribution in her roles. The witness stated that the applicant was very hard-working and had made significant efforts to have his Iranian qualifications recognised in Australia and to absorb new qualifications in this country as an [Occupation 1] and indeed a licensed [Occupation 2]. She advised that he was a very good husband, and a very good father to her daughter. She advised that the cancellation of his visa had a huge impact on the family unit.

6. Once again the witness reiterated that she could not go back to Iran without facing a real chance of persecution because she would deem to be an adulterous relationship in the eyes of her ex-husband’s family and the Iranian government. The witness reiterated that the applicant was extremely close to her daughter and that her daughter had been significantly traumatised during the period of her first marriage because of her ex-husband’s violence. She advised that her daughter required the ongoing physical and emotional support of the applicant. She acknowledged that the applicant had made a mistake that he had lied in his protection visa application. However the witness asked the Tribunal to consider very carefully the family circumstances and the significant contribution that the applicant had made to the community since he had been granted permanent residence in Australia. She advised that her husband was currently under extreme levels of stress and had not been able to sleep. She described him as a very kind and loving man. She also said he was respectful of the family unit and had been a good provider. The witness stated that her daughter had asked her to advise the Tribunal that she was very close to the applicant and would be substantially affected if the applicant had to relocate from Australia. The witness stated that her husband was well respected by the Iranian community in Melbourne and she advised that he was a very good handyman and would often assist members of the community with building related issues and [issues related to his work skills]. She advised because she worked as [an Occupation 3] extremely long hours that the applicant had assisted with domestic aspects of their relationship such as cooking and other domestic responsibilities.

7. The Tribunal asked the applicant whether he had any further evidence that he wished the Tribunal to consider. The applicant stated that he wished to inform the Tribunal that when he worked in Iran as [a certain role] in [the Workplace] that he had access to a lot of sensitive information and that he believes that because of his previous role the Iranian intelligence may focus on him if he was to return to Iran. The applicant stated that he had worked at the Ilam [Workplace].  The applicant stated due to his work experience in the [Workplace] he was an expert in [one component of the Workplace]. The applicant also stated that his wife was considered under Islamic law and by the Iranian authorities to be a married woman. He advised that he would be targeted for committing adultery with a married woman.

8. The Tribunal took evidence from the applicant’s employer [Mr A]. The witness advised the Tribunal that he had been resident in Australia for 20 years and was an Australian citizen. He advised that he [had workplace qualifications]. The witness advised that he currently employed three people including the applicant. He advised that the applicant had been in his employment since 2011 and was very close to finishing his [Occupation 2]’s apprenticeship under the witness’s supervision.

9. The Tribunal asked the witness what impact the loss of the applicant would have on his business. The witness stated that he would lose a lot of jobs as the applicant had worked in a supervisory capacity on a number of jobs and contracts engaged in by the witness. He advised that the applicant was a very good [Occupation 1] and [Occupation 2] and also had experience as [a job role]. The witness stated that he had two apprentices currently working in the business the applicant who is nearing the end of his apprenticeship and an [age]-year-old apprentice an Australian citizen of [Country 2] ethnicity. He advised that the loss of the applicant would have a severe impact on that apprenticeship. The witness further stated that his business had recently interviewed for a further [apprentice] who will be commencing with the business in 2020 an Australian of [Country 3] ethnicity.

10. The witness stated that the applicant was a very good person a loving husband and father to his stepdaughter and that he was extremely trustworthy. The witness stated from time to time the applicant cared for his [age]-year-old son and that the applicant was like a guardian to his son. The hearing concluded.

11. The Tribunal called for the applicant’s representative to provide some further material to it post hearing and a two week period for the provision of this material was agreed to.

    The section 107 notice

12. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 12 April 2017 advising him his visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) (visa applications to be correct) of the Act.  The NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 30 September 2010.

13. The NOICC advised the applicant that the as a result of an Identity Integrity Assessment significant information was uncovered that the applicant did not provide to either the independent reviewer or the Department whilst his protection visa application was being assessed. This information included the fact that the applicant’s grandparents were born in Iran, lived in a Iraq and then returned to Iran to live in their tribal homelands amongst their Iranian citizen brothers and sisters. That the applicant’s family had many Iranians citizen relatives. That the applicant had possessed an Iranian driver’s licence in Iran and had access to a car in Iran. That the applicant had presented this license to Australian licensing authorities after claiming that he had no documentation issued to him by the Iranian authorities. That his mother had collected money that the applicant had sent to her through overseas money transfer and that the receipt of these monies by the applicant’s mother would have required the provision by her of identity documents. That the applicant left Iran on an Iranian passport in his own name, containing his photograph and his father’s name.  The NOICC noted that based on this information the applicant was an Iranian citizen and was so at the time of his protection visa application. The delegate noted that the country information advised that Iranian birth certificates and Iranian national identity cards are only issued to Iranian citizens and are evidence of a person’s Iranian citizenship. The delegate noted that given this information it appeared that the applicant had provided incorrect information in his application for a protection visa. That it was apparent on the basis of this information that the applicant was not stateless and was not unable to obtain identity documents as claimed in his protection application and that he was an Iranian citizen. The delegate noted that the applicant’s claim that he was stateless and had no identity documents and was unable to apply for identity documents was fundamental to the grant of the applicant’s protection visa. The delegate went on to note that the applicant had not complied with the requirements of section 101(b) of the Act namely that a noncitizen must fill in his or her application form in such a way that no incorrect answers are given.

14. The applicant responded to the NOICC by way of submissions lodged by his representative dated 5 May 2017. In that response the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to Christmas Island and at the time he lodged his application for a protection visa.

15. No issue has been raised in this review by the applicant as to the validity of the NOICC. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.

16. 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?

17. 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.

18. As set out above, the NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 30 September 2010.

19. In his response to the NOICC dated 5 May 2017, the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to Christmas Island and at the time he lodged his application for a protection visa.  At the outset of the review hearing the applicant confirmed he had given incorrect information in his protection visa application when he claimed that he was stateless. 

20. As the applicant concedes he gave incorrect information about his citizenship in his protection visa application, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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.

    The correct information:

23. The evidence before the Tribunal indicates that the correct information is that the applicant is an ethnic Faili Kurd who holds Iranian citizenship and Iranian identification documents.

24. The Tribunal accepts the applicants explanation as to his family’s circumstances as set out in his response to the s.107 notice and at the review hearing namely that his father’s parents were of Kurdish ethnicity and that his mother was also of Kurdish ethnicity.  That his paternal grandparents had moved between Iraq and Iran before settling in Ilam Iran a city in Iran with a large Kurdish population. Further to this the applicant and his family in Iran had acquired Iranian citizenship and identity documents

    The content of the genuine document (if any):

25. This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).

    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:

    Recourse to the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a protection visa was based on his claim that he was a stateless Faili Kurd.  In his response to the s.107 notice, the applicant acknowledged the decision to grant him the protection visa was based on incorrect information. 

26. The Tribunal accepts on the evidence before it that the applicant is in fact a Faili Kurd. The Tribunal finds that the applicant’s his claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based on the incorrect information. This fact is conceded to by the applicant.

    The circumstances in which the non-compliance occurred:

    The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his visa application, and in his accompanying statutory declaration and at an interview conducted in respect of his protection claims and before the Independent Merits Review Officer.  At hearing before the Tribunal the applicant has stated he had given the incorrect information about his statelessness because he was told to by the people smugglers to advise Australian authorities of this.  In the response to the s.107 notice, the applicant claimed to be stateless on the advice of the people smugglers, being scared he would be kept in detention for a few months before being deported back to Iran.

    The present circumstances of the visa holder:

27. The visa holder is in a marital relationship with an Australian citizen.  They have been married since [March] 2017 and have cohabited since 2015.  The evidence before the Tribunal indicates that the applicant and his wife have had and continue to have parenting responsibilities for the applicant’s wife’s daughter from her first marriage, a daughter born in [date]. The evidence indicates that the applicant’s wife’s daughter is a dependent member of their family unit as she is engaged in tertiary studies [at] [University].

28. The applicant’s wife gave evidence to the Tribunal pertaining to her former marital relationship advising that it was one characterised by domestic violence which consisted of verbal abuse, physical violence along with threats and intimidation.  The applicant’s wife gave evidence to the Tribunal that the applicant has been involved in her daughter’s life during a critical period of her development [and] has provided stability, support and protection within the family unit.  The applicant’s wife gave evidence that the applicant is a good provider and very hard working and industrious and has that he has completed an Advanced Diploma of [Subject 1] and is also very close to the completion of an apprenticeship to become a licenced [Occupation 2].

29. The evidence before the Tribunal indicates that the applicant’s wife is [an Occupation 3] and has worked extensively in rural Victoria. The evidence indicates that the applicant’s wife worked in [Town] as [an Occupation 3], as [Role 1], and [Role 2] in the [Town] district. The evidence before the Tribunal indicates that whilst the applicant’s wife was engaged in work in [Town] that she was driving [distance] km round-trip per day from suburban Melbourne to her respective roles in [Town]. The evidence before the Tribunal indicates that the applicant provided substantial levels of support to his stepdaughter during this period and continues to provide ongoing support to his stepdaughter because of the extensive hours that he is wife works as [an Occupation 3] which regularly involves [details deleted]. The evidence before the Tribunal indicates that the applicant’s wife is currently working as [an Occupation 3] engaged in [detail deleted] right across metropolitan and outer Melbourne. 

30. The evidence before the Tribunal indicates that the applicant is currently employed by [Mr A] who runs a business, [Business name], in Melbourne providing [services] to customers across metropolitan Melbourne. The evidence before the Tribunal indicates that the applicant has been working in this business since 2011. The evidence indicates that the applicant is deemed by his employer to be a valuable employee and an asset to the business. The evidence provided by the applicant’s employer to the Tribunal indicated that the applicant is very close to completing his [Occupation 2]’s apprenticeship which will enable him to become a licensed [Occupation 2] in Victoria, and that he is a competent [job role] and that his [Occupation 1] background is an additional asset to the business. The evidence before the Tribunal indicates that the applicant’s employer has engaged a number of apprentices with a new apprentice expected to commence in the business in 2020. The applicant’s employer advised that the applicant has been able to provide supervision and direction to the apprentice’s which has been invaluable to their career development.  The applicant’s employer provided evidence to the Tribunal that the loss of the applicant, if his visa remained cancelled, would have a substantial impact on the business resulting in a loss of jobs, the inability to retain and engage apprentices, and a drop in profitability.

31. The evidence provided to the Tribunal by the wife of the applicant, who, as noted, is [qualified in her profession] indicated that the applicant’s stepdaughter has been very anxious and stressed about the prospect of the applicant’s visa remaining cancelled and the applicant having to return to Iran. The applicant’s wife gave evidence to the Tribunal that she has been monitoring her daughter closely for signs of depression and withdrawal so that she could organise for her daughter to be professionally assessed if required. The applicant’s wife gave evidence that her daughter’s stress is compounded by the fact that the cancellation of the applicant’s visa could leave her and her mother alone without the support of the applicant and the spectre of the applicant’s wife’s former husband being a threat and destabilising the family unit which has been established since the inception of the relationship between the applicant and his wife.

1. The evidence before the Tribunal indicates that the applicant and his wife have engaged with the [Medical provider] in Melbourne in an attempt to conceive a child of their own.  The evidence indicates that the couple will continue with IVF and the applicant’s wife gave evidence that there remains a window of opportunity for this to succeed until she is [a certain] age.

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

2. The evidence before the Tribunal indicates that after being served with the NOICC the applicant acknowledged up front that he had provided incorrect information to the Department in his application for a protection visa.

   Any other instances of non-compliance by the visa holder known to the Minister:

3. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.  In his response to the s.107 notice dated the applicant stated that there are no other instances of non-compliance and he has otherwise fully complied with his visa conditions.

   The time that has elapsed since the non-compliance:

4. The relevant non-compliance took place when the applicant made his visa application in September 2010 and more than 9 years have elapsed since then.

   Any breaches of the law since the non-compliance and the seriousness of those breaches:

5. There is no evidence before the Tribunal and indeed the applicant stated in his response to the NOICC that there have been no instances of the applicant breaching the law and he has been a law abiding resident.

   Any contribution made by the holder to the community: 

6. The evidence before the Tribunal indicates that the applicant has been working for [a Business] since 2011 involved in [job tasks]. The applicant has been described by his employer as honest and hard-working and that he has often worked extraordinary hours in order to meet contractual obligations. Evidence provided by the applicant’s employer at the Tribunal hearing indicated that the applicant has been involved in the supervision of a number of [apprentices] engaged by the business and has made a significant contribution to their skill set and development.

7. Evidence provided to the Tribunal by the applicant’s wife indicated that the applicant because of his [Occupation 1] background and his significant building skills has assisted members of the local community with building related and [problems related to his work experience] on a voluntary basis.

8. The Tribunal received a comprehensive statement from [a] registered nurse noting that she had known the applicant for eight years. In the statement [she] indicates that “[The applicant] has been a positive contributor to the local Persian and Kurdish refugee committee. He has been a (sic) organiser for New Year’s festivities few times. [The applicant] and his wife also have helped refugees in crisis when they needed assistance by means of providing small sums of money, food and furniture. I have witnessed him on a couple of occasions when he was quite supportive of male friends whom were feeling down by organising social [activities]. He is courteous and quite attentive to the needs of others. [The applicant] regularly volunteers his time to assist the Kurdish refugee community with social events such as wedding or funeral as some of the Kurdish people have no or very few family members in Australia. He is well-respected in Persian and Kurdish community in Victoria.”

9. The Tribunal also received a statement from [a] general practitioner stating that he had known the applicant and his wife for about five years. [The GP] states that “I believe [the applicant] is of good fame and positive contributor to the local Kurdish and Persian community and loving and caring to his family. He is polite, friendly, supportive, quite attentive to the needs of others, hard-working and shown keen interest to increase his skills to be a positive contributor to the community.”

   Other factors to be considered

10. While the above 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’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

11. If the applicant’s visa is cancelled the applicant will become an unlawful non-citizen and that he will be liable to be detained. 

12. Another consequence of the cancellation of the applicant’s visa is that the applicant is now an important and integral part of the family unit of his wife and his step-daughter.  The evidence indicates that the applicant’s wife is a highly regarded [Occupation 3] who has undertaken extensive work in rural Victoria and as [an Occupation 3].  The applicant’s wife is an Australian citizen by grant and the applicant and his wife have been in a relationship since 2015 and have been married since [March] 2017.  The removal of the applicant from this family unit based on the evidence provided to the Tribunal will have a substantial impact on the family unit and this is exacerbated by the fact that the applicant’s wife left a violent and abusive marriage which caused detriment to both the applicant’s wife and step-daughter. 

13. If the applicant’s visa is cancelled and he has to return to Iran the evidence before the Tribunal indicates that the applicant’s wife, who is and Iranian of Persian ethnicity (now an Australian citizen) would not be able to relocate to Iran to live with her husband.  The evidence before the Tribunal indicates that the applicant’s wife was previously married to [name deleted].  The evidence indicates that although the applicant’s wife is divorced from her first husband in Australia under Australian law, under Islamic law she is still married to her first husband as he has not been willing to divorce her under Islamic law.  If the applicant’s wife was to return to Iran she would be labelled an adulteress and liable to face retribution and a real chance of persecution for adultery.  The evidence before the Tribunal namely movement records for the applicant’s wife along with her evidence at the review hearing indicates that since she migrated to Australia she has not for this reason returned to Iran to visit her family.  Indeed the evidence indicates that any interaction she has had with her family members occurred in [another country] which is a country that is easy for Iranians to obtain visas for and to access because of the proximity of the two countries.

14. The Tribunal notes that the US Department of State, 2015 Country Report on Human Rights Practices published on 13 April 2016 stated that: ‘Women sometimes received disproportionate punishment for crimes such as adultery, including death sentences. Discriminatory laws against women continued to be introduced. The 2013 revised Islamic penal code retains provisions that value a woman’s testimony in a court of law as half that of a man’s, and a woman’s life as half that of a man’s. The blood money paid to the family of a woman who is killed is half the sum paid for a man in most cases.

15. The Tribunal also notes information provided by the UK Home Office Country Information Note into Adultery in Iran from November 2016 which states that “Adultery is a specific crime in Iran and punishable by disproportionately severe sentences. In the Court of Justice of the European Communities judgement for the joined cases of C-199/12 to C-201/12, dated November 2013 ([2013] WLR(D) 427, [2013] EUECJ C-199/12), the Court held that ‘the existence of criminal laws which specifically target the group concerned, supports the finding that those persons must be regarded as forming a particular social group.’ (Ruling point 1). 2.2.3 Although adulterers in Iran form a PSG, this does not mean that establishing such membership will be sufficient to make out a case to be recognised as a refugee. The question to be addressed in each case is whether the person faces a real risk of persecution on account of their membership of that group.”

16. The report further notes that “any sexual relationship outside of marriage is considered a crime in Iran and is punishable by 100 lashes and in some cases stoning to death. The last reported stoning sentence for adultery was imposed in December 2015 but the last known execution by stoning took place in 2009. However, the authorities do not release official statistics and punishments often take place in secret. Similarly, no statistics on flogging are made public, and victims avoid talking about them in public for fear of stigmatization, although it was reported that a woman received 100 lashes in Golpayegan as punishment for adultery in April 2016.”

17. The UK Home Office Information Note ‘Iran Honour crimes against women’ in October 2017 noted at page 6 that:

    Effective state protection is unlikely to be available for women at risk of an honour killing/crime. However, each case needs to be carefully considered on its facts and the onus is on the person to show that they would be a risk of an ‘honour’ crime on return to Iran.

18. The Finnish Immigration Service published a report on 26 June 2015 titled ‘Violence Against Women and Honour Related Violence in Iran.  The report noted at page 18 that:

    “Both women and men are vulnerable to honour-related violence in Iran. An honour killing is a murder committed or ordered by a husband, a father, a brother or another relative as a punishment to a family member who is seen to have damaged the family’s reputation by their actions. Such actions can include extramarital sex, refusal to an arranged marriage, choosing one’s own spouse without the family’s approval, becoming a victim of rape, homosexual acts or excessively liberal behaviour and dress. In the most extreme cases, even a suspicion of such actions is enough. Due to cultural reasons, women and girls are the mostly likely victims of honour killings. Honour killings take place all around the world, but they are especially common in the Middle East and South Asia.

    In most cases, the victim is a woman and the perpetrator is a male member of the victim’s family.   Adultery by a married woman is considered the most serious offence in this respect. Honour killings are often based on unconfirmed suspicions and rumours, which in the most conservative communities can be sparked by very minor acts, such as talking to an unknown man in a public place. No comprehensive statistics are available on the subject, but Iran’s criminal police occasionally publish information about cases and the number of honour killings known to the police. The subject received much media attention in 2008, when the police found out about 50 honour killings in the space of seven months.  According to police statistics, a total of 340 honour killings in which the victims were women took place in Iran between March 2011 and March 2012. Most of the murders were committed in Kurdistan and Khuzestan.  As many as 40% of all murders in Khuzestan are believed to be honour-related.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements:

19. The Tribunal accepts on the basis of the evidence before it that the applicant is a Faili Kurd but as discussed with the applicant during the course of the review hearing country information such as the Department of Foreign Affairs and Trade (DFAT) reports that Iran’s laws do not discriminate on the basis of ethnicity. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states those experiences are not uniform. DFAT is not aware of instances where Faili Kurds have been singled out for discrimination or where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. DFAT reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranians. (see DFAT Country Report Iran 7 June 2018 at 3.13 and 3.14).

    EXERCISE OF DISCRETION

20. The Tribunal in considering the exercise of discretion gives significant weight to the finding that the applicant’s statement in his visa application claiming that he was a stateless Faili Kurd was the critical fact that led to the grant of protection.  The evidence before the Tribunal and indeed conceded to by the applicant was that the grant of a protection visa was based on incorrect information.  The Tribunal finds that had the applicant provided correct information he may not have been found to engage Australia’s protection obligations.  The Tribunal discussed this with the applicant at the review hearing and put to the applicant that the Tribunal, held the view that the applicant had been granted permanent residence on a false pretext.  The Tribunal holds a strong view that the applicant should not derive a benefit from the provision of false information.  However the cancellation of a visa requires a two pronged consideration.  Does the ground for cancellation exist (a fact that has been conceded to by the applicant) and whether the visa should be cancelled having regard to a range of discretionary considerations. The Tribunal is also conscious of the fact that the grant of permanent residence occurred in September 2010 over 9 years ago.  In addition to this the Department did not proceed to cancel the applicant’s visa until May 2017 and as a result of the defective delegation issue merits review was delayed for an extended period until November 2019.  During the extended passage of time since the initial grant of permanent residence the applicant has established a life in Australia, he has studied and almost completed an apprenticeship which will see him be granted an [Occupation 2] licence.  More profound is the fact that he has been in a relationship with an Australian citizen since 2015 and married to her since March 2017 and has become an integral part of her family unit and is an actively involved step-father to her [age] year old daughter.

21. All of these discretionary factors require very careful consideration and having given all of the required circumstances such consideration the Tribunal considers that these matters which the Tribunal is required to have regards to outweigh those matters which favour cancelling the applicant’s visa.  In particular the Tribunal gives weight to the following matters.

    The applicant’s present circumstances

22. The evidence before the Tribunal indicates that the applicant is in a marital relationship with an Australian citizen. The evidence indicates that the applicant cohabited with his wife from 2015 and that the couple have been married since [March] 2017. The evidence before the Tribunal indicates that the applicant’s wife is [an Occupation 3] who has undertaken many years of work in remote and socially depressed areas of Victoria such as [Town], where she has been [an Occupation 3 and Roles 1 and 2]. In addition to this the applicant’s wife is currently working as [an Occupation 3] [and] travels extensively in this role throughout metropolitan and rural Victoria.

23. The evidence before the Tribunal indicates that the applicant’s wife has a daughter from a previous marriage. The evidence indicates that the applicant has been involved in his step-daughters life during significantly formative [years]. The evidence before the Tribunal indicates that the applicant’s wife left a violent and abusive marriage with her first husband. The evidence before the Tribunal indicates that the applicant’s wife and stepdaughter were exposed to significant levels of domestic violence and that the applicant has provided a stable and protective influence since the inception of his relationship with his wife.  The evidence before the Tribunal indicates that the applicant has been able to provide emotional support to his stepdaughter and has also been available to at times drop her and pick her up while she was attending high school and more recently whilst attending [University]. He has also been available to oversee his step-daughter when his wife has been travelling to work in [Town] or undertaking [Occupation 3 services].

24. The country information cited above indicates that the applicant’s wife would not be able to relocate with the applicant to Iran and that if the applicant had to return to Iran it would lead to the disintegration of the family unit of which the applicant is now an integral part of.  The evidence further indicates that the applicant and his wife have been engaged with a fertility clinic in Melbourne in an attempt to have a child of their own and the evidence of the applicant and his wife is that they intend to continue with this process whilst there is a safe window of opportunity to do so.

25. In addition to this the evidence indicates that the applicant is an employee of an Australian citizen [Mr A] of [Business], whose business provides [services] to customers across metropolitan Melbourne. The applicant has been working in this business since 2011. The applicant is considered to be a valuable employee and an asset to the business.  The evidence before the Tribunal indicates that the applicant’s employer has engaged a number of apprentices with a new apprentice expected to commence in the business in 2020. The applicant’s employer confirmed at hearing that the applicant has been able to provide supervision and direction to the apprentice’s which has been invaluable to their career development.  The applicant’s employer provided evidence to the Tribunal that the loss of the applicant if his visa remained cancelled would have a substantial impact on the business resulting in a loss of jobs, the inability to retain and engage apprentices, and a drop in profitability.

26. The Tribunal apportions significant weight to these factors in not cancelling the applicant’s visa.

    The applicant’s contribution to the community:

27. The applicant has been employed in a business run by an Australian citizen since 2011.  The applicant has significant skills that he brings to his role in the business. As noted the applicant has tertiary qualifications in [Subject 1] and has completed an Advanced Diploma of [Subject 1] at [Educational institute 1] in Melbourne.  In addition to this the applicant is very close to completing an [Occupation 2]’s apprenticeship which will enable him to be licensed as an [Occupation 2] in the State of Victoria. The evidence of the applicant’s employer indicates that the applicant has been involved in a significant supervisory role to the businesses current Australian apprentice and will continue in a supervisory role when a new apprentice is engaged by the business in early 2020. The Tribunal holds the view that the employment and engagement of young Australian apprentices is integral to this business, to the development of a skilled workforce and to the overall profitability of this business which in turn contributes to the Australian tax base.

28. In addition to this the Tribunal has been given evidence that the applicant in his personal life because of his technical and building skills has assisted members of the Kurdish and Persian communities with remedial building and [his work skills] work that they have required. In addition to this the evidence that has been provided to the Tribunal indicates that the applicant volunteers his time to assist the Kurdish refugee community in Victoria with social events and assistance with weddings and funerals. The applicant is described as a well- respected member of the Persian and Kurdish communities in Victoria. The applicant and his wife, [an Occupation 3], have been involved in assisting refugees in crisis in terms of provision of money, food and furniture. The Tribunal accepts that the applicant has made a significant contribution to the Australian community through voluntary work and overseeing apprentices.   References provided to the Tribunal indicate he is held in high regard by his professional colleagues and the Kurdish community and the Tribunal apportions significant weight to these factors in not cancelling the applicant’s visa.

    CONCLUSIONS

1. 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 not be cancelled.

   decision

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

   John Cipolla
   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.