1712183 (Refugee)

[2020] AATA 714

1712183 (Refugee) [2020] AATA 714 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712183

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:5 March 2020

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 05 March 2020 at 12:26pm

CATCHWORDS

REFUGEE – cancellation – Protection visa – Iraq – incorrect information provided in protection application – Sunni living in a city that is predominantly Shia – voluntary return to Iraq –to visit sick relatives – credible witness – no non-compliance by the applicant – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 33

Migration Act 1958, ss 3.26, 107,109, 119

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
CSH18 v MHA [2018] FCCA 3226
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).

   Background and Evidence

2. The applicant is [an age] national of Iraq. He arrived in Australia [in] October 2010 as an Unauthorised Air Arrival. He lodged a Protection visa application on 22 October 2010, which was refused by the Department. He then applied for a review of that decision to the then Refugee Review Tribunal (RRT). The decision was remitted to the Department for reconsideration with the direction that the applicant satisfies 3.26(2)(a) of the Act. The applicant was subsequently granted a Protection visa on 25 September 2011.  

   The information

3. In his protection visa Form 866C, in reply to questions 42-46, the applicant provided the following information.

   Question 42: Why did you leave that country?

   I left Iraq because I was afraid that if I remained there I would suffer serious harm.

   I am a Sunni Muslim from Basra in southern Iraq, Basra is predominantly a Shia city and the Sunni Muslim population is targeted by Shia militias.

   One night in July 2005 I was kidnapped from my home in the night by some men who were dressed as policemen. My father’s uncle was also kidnapped. I was held for 4 days. My great uncle was questioned and told to confess to crimes he knew nothing about I was in another room and I heard them telling him that I would be killed if he didn't make a confession. They fired a shot near my head in a mock execution. They killed my great uncle on the 3rd day. They released me the following day. Afterwards I left Basra so that no harm would come to me.

   [In] October 2010 my cousin [Mr A], aged [age] was kidnapped in Basra and his body was left dumped in the street the following day. He had been shot. When I heard the news about [Mr A] I immediately decided to leave Iraq because I was afraid that I would be the next one killed.

   I sold my car quickly and borrowed money from my mother, I contacted people who could arrange for me to travel quickly to a western country and arrangements were made. I left Iraq and flew to [Country 1], where I made contact with the person who arranged for me to travel to Australia. I paid him some money. He had a passport for me. We travelled together from [Country 1] to another country whose name I can't remember. From there I caught the flight to Australia, The man left me before I got on the flight to Australia, I had to give him my Iraqi passport.

   Question 43: What do you fear may happen to you if you go back to that country?

   I am afraid that I will be killed.

   Question 44: Who do you think may harm/mistreat you if you go back?

   Shia militias in Iraq.

   Question 45: Why do you think this will happen to you if you go back?

   Because I am Sunni living in a city that is predominantly Shia. The fundamentalist Shia militias have been targeting and intimidating the Sunni in an effort to force them out of Basra. They have been ethnically cleansing Basra. The Sunni and Christian population in Basra have significantly decreased.

   Because I was kidnapped in July 2005, my great uncle was killed in July 2005 and because my cousin was murdered [in] October 2010.

   Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?

   No because the authorities (especially the police) are infiltrated with people who are members or supports of the Shia militias.

   The notice

4. On 21 April 2016, the applicant was issued with a Notice to Consider Cancellation (NOICC) of the protection visa, on the basis of non-compliance with s 101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 42, 43, 44, 45 and 46 of Form 866C as he had voluntarily returned to Iraq on four separate occasions:

   ·    Between [November] 2012 and [February] 2013

   ·    Between [September] 2013 and [October] 2013

   ·    Between [May] 2014 and [September] 2014

   ·    Between [April] 2015 and [June] 2015

5. The Notice stated that Departmental records indicate that he travelled to Iraq on each occasion, as declared in his incoming and outgoing passenger cards. The fact that he voluntarily returned to Iraq on four occasions for a total period of approximately nine months, without hindrance, indicates that he does not hold an adverse profile as claimed in his Protection visa application and that he does not have a genuine fear of being harmed if he were to return to Iraq.

   The applicant’s response

6. On 6 May 2016, the applicant’s then representative responded to the NOICC and provided the following information:

7. The applicant travelled to Erbil in north of Iraq between [November] 2012 and [February] 2013. The purpose of the trip was to visit his parents. He travelled to Iraq again between [September] 2013 and [October] 2013 due to a medical emergency as his mother was suspected to have [a medical condition]. He only visited for a short period of time and remained at his house for the duration of the trip.

8. Between [May] 2014 and [September] 2014, the applicant travelled to Erbil again to visit his family. The applicant returned to Australia from Basra because his return flight from Erbil to Sydney was cancelled by the airline.

9. On the fourth occasion, the applicant visited Basra between [April] 2015 and [June] 2015, due to the ailing health of his grandmother. His grandmother passed away a few days after his arrival.

10. It was submitted that all of the applicant’s visits to Iraq were justified, due to family emergencies. In addition, he was never informed by Border Protection officers that such travel was prohibited.

11. The representative further submitted that the applicant has been in Australia for over six years and has since established a life here. He is employed and is actively involved in the Australian community.

12. The following documents were attached to the submission:

    • A reference letter by the applicant’s [employer]’.
    • A character reference letter written by [Minister] of Religion and an authorised marriage celebrant.
    • Three letters, all dated [date] August 2015, issued by the United Nations High Commissioner for Refugees, indicating that the applicant’s mother, father and brother have made an international protection application with the [Country 2] authorities.
    • Copy of a page from the applicant’s Titre de Voyage with entry and exit stamps.
    • Emails from [Airlines] to the applicant, dated [date] August 2014, in relation to the cancellation of flights departing from Erbil.
    • Copy of the applicant’s flight itinerary issued on [date] April 2014, indicating that he had booked flights from Sydney to Erbil with a departure date of [date] May 2014 and a return flight to Sydney scheduled for [date] August 2014. 

13. On 11 May 2016 the applicant’s representative submitted the following documents:

    ·Copies and translations of two documents titled ‘Registration of Death’ and ‘Certificate of Death’, dated [date] May 2015, in relation to the applicant’s [grandmother]. The documents were issued by the Republic of Iraq, Ministry of Health.

    ·A letter from the applicant addressed to the Department, stating that he could not obtain a copy of his air ticket for his flight [in] 2013.

    ITOA

14. The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant. On 24 February 2017, the delegate found that Australia does not owe him non-refoulement obligations.

    The delegate’s decision

15. On 25 May 2017, a delegate of the Minister cancelled the applicant’s visa on the basis that he provided incorrect information in his application for a protection visa, specifically in response to questions 42, 43, 44, 45, and 46 of Form 866C. 

16. The delegate found that applicant’s claims that he held an adverse profile and was of interest to Sunni militias are incorrect as he was able to return to Iraq on numerous occasions without incident. In addition, he returned within two months of the grant of his protection visa and returned to Basra, where he claimed most of the persecution occurred.

17. The delegate also noted that the applicant claimed to fear persecution from non-state based militias in the southern part of Iraq. In his response to the NOICC, it was stated that he returned to the northern part of Iraq. However, in the course of his review at the RRT he stated that there was nowhere in Iraq where he would feel safe.

    Application for review

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

19. On 28 February 2020, the applicant’s representative made a submission to the Tribunal in support of the review.

20. The representative stated that the applicant did not provide incorrect information on his protection visa application form. It was submitted that the ITOA officer had not considered the fact that the RRT had concluded the applicant was at risk of serious harm due to the sectarian conflict in Iraq. In addition, the ITOA officer had not considered the fact that the applicant’s whole family departed Iraq to get UNHCR registration in [Country 2]. The claims made by the applicant’s family members corroborate the applicant’s claims and supports the view that the whole family have a well-founded fear of persecution from Shia militias.

21. It was stated that the applicant returned to Iraq to visit his sick family members due to cultural reasons and to clear his conscience. The applicant also returned because he needed the support of his family after the stress of being in immigration detention in Australia for nearly a year. He took precautions by visiting his family in Erbil in the Kurdish region. When he returned to Basra, he stayed in the family home. He also dressed like the local people and did not do anything to draw attention to himself.

22. It was submitted that there may still be a ‘real chance’ of persecution in the future, even when an applicant visits their home country. He further stated that the applicant is still at risk of persecution due to his Sunni religion, his imputed political opinions, and his membership of a particular social group. The applicant is also faces a real risk of significant harm in Iraq. 

23. Attached to the submission was a Statutory Declaration, declared by the applicant on 28 February 2020. In his Statutory Declaration, the applicant provided the following information:

24. He visited Iraq four times. He was depressed after being in immigration detention from October 2010 to August 2012 and needed his family’s support. After his Protection visa was granted he visited the Immigration office in Sydney and was told that he could visit his family in northern Iraq as long as he does not return to his home area.

25. On his first trip, he went to Erbil to see his parents and his [brother]. His family rented an apartment so that they can all stay together.

26. He visited Iraq for a second time due to his mother’s medical emergency. It was suspected that his mother has [a medical condition], but this was not the case. He stayed with his mother when she returned home from hospital. He returned to Australia after spending another four days in [another country].

27. On his third trip he met up with his family again in Erbil where he stayed the entire time. He flew back from Basra due to a cancelled flight, but he never left the airport.

28. On his fourth trip, he went to visit his [grandmother], [who] was very sick. She died [in] April 2015. He did not attend the funeral but stayed at the family home the whole time. When he was in Basra he was careful to stay in the family house and did not travel around Basra as he was afraid of the militias.

29. He is from a Sunni family but he is not very religious. His parents, brother and sister all fled to [Country 2] in August 2015 because they were targeted by Shia militias in Basra. His father received a threat written on walls of the family home. [In] July 2015, a man came to their house and told his father that the whole family had to leave within two days or they will be killed. His father ignored the warning but two days later there was a shooting at the house.

30. The applicant’s family left the next morning and went to a relative’s place. Ten days later they fled to [Country 2] and registered with the UNHCR.  His father believed that the group that threatened and targeted them was linked to Ashab Ahl Al Haq (AAH), a Shia militia group.

31. In October 2015 the applicant travelled to [Country 2], to see his family. The UNHCR later arranged for his family to live in [Country 2].

32. In relation to his current circumstances in Australia, the applicant stated that he has worked in different jobs and most recently he worked at a [company] at [a location].

33. He further stated that he has a number of tattoos and tattoos are not acceptable to traditional religious people in Basra, who are more conservative than people in other parts of Iraq.

34. The following additional documents were also provided by the applicant’s representative:

    ·Copy and translation of a death certificate issued on [date] October 2010 by the Republic of Iraq Ministry  of Health, in relation to the applicant’s cousin ‘[name]’.

    ·Copies of Iraqi identity documents.

    ·Copy and translations of a medical report in relation to the applicant’s [mother]. The report, dated [date] September 2015, was completed at a hospital in [Country 2], and provides results from a pathology [test].

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

35. 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.

36. 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.

37. Having regard to the terms of the NOICC and the information referred to in the notice, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

38. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) referred to in the s.107 notice as set out in the NOICC.

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

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

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

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

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

41. In other words, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. The decision-maker must be satisfied about the existence of certain facts before exercising the power. When considering the question of whether the decision-maker is satisfied there was non-compliance in the way described in the notice, he or she must ‘feel an actual persuasion’.[3] While the Tribunal is not bound by the rules of evidence, such a state of satisfaction can only be reached where ‘the factual material or information tends to make out, or support, the finding or conclusion reached’ and ‘there is a rational connection between the factual information or material and the finding or conclusion reached’.[4] The quality of the probative material provided ‘which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion’.[5]

    [3] Plaintiff M64-2015 vMinister for Immigration and Border Protection [2015] HCA 50 at [64].

    [4] BZC17 vMinister for Immigration and Border Protection [2018] FCA 902 at [89].

    [5] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [19].

42. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[6] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[7]

    [6] (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [7] Ibid [120].

43. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [8] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[9]

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

    [9] Ibid, at [122].

1. As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to questions 42-46 in his Form 866C. The delegate then referred to the applicant’s trips to Iraq as set out in the NOICC  and determined that the applicant’s voluntary return to Iraq on four separate occasions without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a protection visa.

2. The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C, essentially, if not solely, was based on the applicant’s return to Iraq without apparent issues and remaining in that country for the duration of his trips. Whilst the delegate identified specific answers provided by the applicant in his Form 866C, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being persecuted by Shi'a militia groups for the reasons he had provided in his application for a protection visa.

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

4. The applicant has given consistent evidence throughout the process in relation to his claims for protection. In essence, he claimed to be a Sunni Muslim from Basra, a predominantly Shia city. In July 2005, he and his great uncle [were] both kidnapped. His great uncle was killed, but the applicant was released days later. In October 2010, the applicant’s cousin was kidnapped and killed in Basra. Following this event, the applicant left Iraq, fearing that he could be targeted next.

5. In the ITOA assessment, the delegate, without elaborating, referred to various inconsistencies outlined by the RRT in relation to the applicant’s claim that he was kidnapped. With respect, this is not an accurate reflection of the RRT’s decision record, which noted that ‘the inconsistencies in [the applicant’s] evidence concern his travel outside of Iraq prior to coming to Australia, and the route he took to come to Australia.’ The delegate also took issue with the applicant’s failure to disclose two claims in the course of the interviews conducted immediately upon or shortly after his arrival in Australia. These claims were subsequently put forward to the Department in connection with his application for a protection visa and consistently maintained throughout the assessment and review processes. The Tribunal does not share the delegate’s concerns and does not consider the omissions to fundamentally undermine the applicant’s claims for protection as set out in his application for a protection visa.

6. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a protection visa.  For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Iraq or that he would be arrested upon returning to that country. The applicant claimed that he feared Shi'a militias because they had harmed him and other members of his family in the past. He claimed the authorities could not protect him from the harm he feared on the basis of a belief that they are ‘infiltrated with people who are members or supports of the Shia militias.’

7. Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant had arranged to see his family in Erbil on two of his four trips to Iraq and did not return to Basra. Erbil is located in the autonomous Kurdistan region in the north of the country and is governed by the Kurdistan Regional Government.[10] The Tribunal accepts that on both occasions he had remained in Erbil for the entire duration of his stay. Whilst at the conclusion of the third trip, due to cancellation of his return flight from Erbil, he had departed Iraq through Basra airport, the Tribunal accepts his evidence at the hearing that he was transported directly to the airport from Erbil and departed without leaving the airport.

   [10] See, for example, Iraqi Kurdistan Profile, BBC News, April 2018,

8. The Tribunal has taken into consideration the delegate’s observations in his decision to cancel the applicant’s visa that the applicant had told the RRT that there is no safe place in Iraq and that he won’t feel safe because the situation will not provide any security should he move anywhere else. This evidence was given to the RRT at the hearing, which took place in August 2011, in response to questions specifically relating to the availability of internal flight alternatives. The fact that the applicant had made arrangements to see his family in Erbil in November 2012 and May 2014, without more, does not logically negate the truth of what he had conveyed to the RRT.

9. With regard to the other two trips, the Tribunal is prepared to accept that the applicant had felt compelled to see his mother, whom he feared had [a medical condition], when he travelled to Basra in September 2013. The Tribunal also accepts that he had travelled to Iraq at the end of April 2015 to see his grandmother before her death, which occurred approximately a week after he arrived in Basra. The Tribunal accepts that on these two occasions the applicant had remained in Basra for [a few] weeks respectively, staying consciously at home and was careful not to be seen.

10. As it was put to the applicant at the hearing, his decision to return to Iraq, particularly his decision to return to Basra on two occasions, raises legitimate questions in relation to his claims for protection. However, the Tribunal is not of the view that this should automatically lead to the conclusion that he had provided incorrect information in his application for a protection visa. The Tribunal accepts that the applicant’s desire to see his ill mother and dying grandmother on the two occasions that he travelled to Basra outweighed his fears arising from the circumstance that led to his application for a protection visa. The applicant stated at the hearing, and the Tribunal accepts, that by travelling to Iraq he took a calculated risk.

11. Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Iraq on the four occasions referred to in the NOICC provide a real persuasive basis to make a positive finding that the information the applicant provided in his application for a protection visa was incorrect. Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has been residing in Australia for some 10 years has serious consequences and any factual findings should be based on logical and probative material. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

12. For these reasons, the Tribunal is not satisfied that the applicant gave incorrect answers in his application for a protection visa. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

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

    Delegation

14. The Tribunal was notified by the Department that the officer who made the decision to cancel the applicant’s visa did not have the delegated power to cancel visas under section 109, at the time the decision was made. 

15. In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court considered an appeal from CSH18 v MHA [2018] FCCA 3226, which considered the Tribunal’s powers on review of a purported cancellation made without the necessary delegation. The Full Court confirmed at [57] that the Tribunal had jurisdiction to review the decision. At [88], it held that the Federal Circuit Court erred in finding that the only power of the Tribunal was to set aside the decision. Following the Full Court judgment, there is no question that the Tribunal has power to set aside one of these purported s.109 cancellations, where the ground of cancellation is not made out.

    DECISION

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

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    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.