1712356 (Refugee)

[2020] AATA 2834

1712356 (Refugee) [2020] AATA 2834 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712356

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:29 May 2020

PLACE OF DECISION:  Melbourne

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 29 May 2020 at 11:19a

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in visa application – identity and nationality – Pakistani identity card and passport – Afghani Hazaras in Pakistan not entitled to documents or citizenship – father purchased genuinely issued but fraudulent identity cards – country information on Pakistani document fraud – applicant’s and relatives’ Afghani documents – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 424A, 425, 437, 438

CASES
Sankey v Whitlam (1978) 142 CLR 1

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 dependants.

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, who claims to be a citizen of Afghanistan, arrived in Australia by air [in] September 2009, identifying himself as [applicant name], Afghan national who wished to claim asylum. He was placed in immigration detention and made an application for a protection visa on 16 October 2009. An identity assessment was conducted by the Department which identified him as [Alias 1], a Pakistani national who had previously travelled to Australia on a Pakistani passport as the holder of a student visa. His application for a protection visa was refused by the Department on that basis.

3. That decision was overturned by the former Refugee Review Tribunal (RRT) on 30 April 2010, which accepted the applicant’s evidence that his true identity was [applicant name], Afghan national and the Pakistani passport which he had used to travel to Australia was a false passport arranged by his father to enable the applicant to leave Pakistan, where the family resided as refugees. During the course of the RRT proceedings, the applicant lodged amended Forms 866B and 866C. Following the RRT decision, the applicant was granted a protection visa on 23 August 2010 under the identity of [applicant name], Afghan national.

4. The departmental file records that the applicant applied for Australian citizenship on 27 August 2014. It appears that in the process of assessing that application, further checks with the Pakistani authorities were conducted which verified among other things that the Pakistani passport used by the applicant to enter Australia under the identity of [Alias 1] was genuinely issued.

5. The delegate cancelled the visa on the basis that he considered the applicant had given incorrect information in his protection visa application about his name, date and place of birth, nationality, status as an illegal immigrant in Pakistan and fear of harm if returned to Afghanistan. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

7. The matter was scheduled for a hearing on 9 April 2020, which was cancelled due to the State of Emergency declared in Victoria and elsewhere around Australia as a result of COVID-19. Given the documentation produced to the Tribunal by the applicant since the cancellation of the hearing, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s.425 of the Act.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   THE REVIEW PROCEEDING

   Non-disclosure certificate

9. The Tribunal has before it the applicant’s departmental files relating to the grant of the protection visa, the cancellation of protection visa, the application for citizenship and the grant of the student visa to [Alias 1]. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.438 of the Act.

10. On 17 October 2017 a delegate of the Minister issued a certificate under s.438(1)(a) of the Act attaching to folios 8-36 of the department’s file relating to the cancellation of the applicant’s visa. Those folios contain the Department’s investigations and assessment of the applicant’s identity. The certificate states in summary that although part of the information contained in those folios has been presented to the applicant in the notice of intention to consider cancellation and the cancellation decision, the disclosure of other parts of those folios could disclose specific details of the department’s investigative methods and individuals contrary to the public interest because  it could reveal a confidential source.

11. 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. Section 438(1) applies to information where the disclosure of any matter contained in the document would be contrary to the public interest for any reason specified in the certificate, (excluding matters contained in s.437(a) and (b) which relate to Australia’s security, defence or international relations and deliberations or decisions of Cabinet).

12. A copy of the certificate dated 17 October 2017 was provided to the applicant and the Tribunal received submissions as to its validity on 8 February 2020. As I understand those submissions, it is argued the certificate is invalid under s.438(1)(a) because the statement that the release of the information could reveal a confidential source of information is insufficient to render the certificate valid under the public interest immunity test contained in s.438(1)(a). It is further submitted that no confidentiality attaches to information provided by Post in Islamabad or the Pakistani authorities or the National Database and Registration Authority (NADRA), because it is plain the Department has liaised with Post or local sources in Pakistan to verify the applicant’s information.

13. Public interest immunity generally operates to restrict the production or dissemination of otherwise relevant evidence in legal proceedings where its disclosure would be against the public interest. This requires a balance between the principles that:

    ·no harm should be done to the nation or to the public service by the disclosure of the material; and

    ·the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[1]

    [1] Sankey v Whitlam (1978) 142 CLR 1 at 39.

14. Having viewed the certificated folios, I accept that their disclosure in full would reveal specific details of the department’s investigative methods and individuals and that this would be contrary to the public interest. In considering whether withholding the certificated documents would result in the frustration of the administration of justice, I find it would not. My reasons for this are:

    a)The substance of the information covered by the certificate has been disclosed to the applicant in the Notice of Intention to Consider Cancellation (the s.107 notice), being that the delegate formed the view the applicant is a Pakistani citizen named [Alias 1] who travelled to Australia as the holder of a student visa. The notice discloses the reasons for this, being that the Pakistani passport used by [Alias 1] to travel to Australia has been verified as genuine by the Pakistani authorities and additional checks confirmed [Alias 1] presented a Pakistani National Identity Card at two International English Language Testing System (IELTS) tests in 2007. The notice sets out that as passports and National Identity Cards are only issued to citizens of Pakistan, it was considered the applicant was a Pakistani national named [Alias 1] and not an Afghan national named [applicant name] as claimed.

    b)To the extent that the certificated folios contain further adverse information that is relevant to the issues for determination and not contained in the s.107 notice or the delegate’s decision, details of that information were provided to the applicant by the Tribunal pursuant to the provisions of s.424A of the Act and he has responded to that information;

    c) The certificated folios contain information about third parties, some of which is prejudicial to those persons but of minimal relevance or value to the issues for determination in the review and I do not consider it appropriate that such information be disclosed.

15. For these reasons I find that the balancing exercise referred to in paragraph 10 weighs in favour of withholding the documents. I do not accept the use of the word ‘could’ rather than ‘would’ otherwise renders the certificate invalid. The applicant’s submissions that no confidentiality attaches to information provided by the Pakistani authorities assumes knowledge of the confidential sources referred to in that certificate. In any event the certificate makes clear that while some information has already been disclosed to the applicant in the s.107 notice, it is the detail of the department’s investigative methods and individuals who provided confidential information that is sought to be protected against disclosure. I find the certificate dated 17 October 2017 to be valid. For the same reasons I have decided against exercising my discretion to release the certificated folios in full pursuant to s.438(3)(b).

16. It is further submitted that the certificate is not valid under s.438(2) as it does not explicitly state the release of the information would reveal a confidential source. I take it that this submission was intended to refer to s.438(1)(b).  As I have found the certificate to be valid under s.438(1)(a) it is not necessary for me to go on to consider whether it is also valid under s.438(1)(b).

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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.

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

    The s.107 notice

20. In this case the s.107 notice was sent to the applicant on 3 February 2017. It alleges that the applicant has given incorrect information in his protection  visa application in relation to question 1 (his name), question 7 (his date of birth), question 8 (his place of birth), question 21 (his citizenship at birth), question 22 (his current citizenship), question 40 (the country from which protection is sought), question 41 (the reasons he left that country), question 42 (what he feared would happen if he returned to Afghanistan), question 43 (who he thought would harm him if he went back to Afghanistan), question 44 (what he thought would happen in Afghanistan), question 45 (whether he would be protected by the Afghan authorities) and question 67 (his declaration).

21. It sets out the reasons for this allegation, being that the Pakistani passport issued [in] 2007 used by the applicant to travel to Australia had been verified as a genuinely issued document and additional checks with the Pakistani authorities had confirmed the applicant presented a Pakistani National Identity Card (NIC) in the name of [Alias 1] at two IELTS tests in 2007.  It stated that as passports and NICs are only issued to citizens of Pakistan, the delegate had formed the view that this is the applicant’s correct identity and that he is a Pakistani citizen and not an Afghan citizen.

22. No issues as to the validity of the notice have been raised with the Tribunal. 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 applicant’s response to the s.107 notice

23. The applicant responded to the s.107 notice through his former representative on 21 February 2017. The essence of that response was that the information provided by the applicant in his protection visa application about his identity, nationality and personal history was correct and had been accepted by the former RRT, which had found the applicant was [applicant name], an Afghan national who feared persecution in Afghanistan and Pakistan as a Hazara Shia.

24. The applicant also provided relevant country information and a number of documents in support of his claims to be [applicant name], Afghan national including his father [Mr A]’s Afghan identity document, Afghan military discharge card, the applicant’s Afghan driver’s licence, taskera, Australian marriage certificate and statutory declaration about his identity.

25. Before this Tribunal the applicant continued to strongly maintain that he had not provided incorrect information in his protection visa application and he provided a very significant amount of further documentation relevant to his identity and nationality and his current circumstances.

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

26. 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).

27. In assessing whether there has been non-compliance in the way set out in the s.107 notice, it is important to note that while the applicant did not initially disclose that he had previously travelled to Australia as the holder of a Pakistani passport issued in the name of [Alias 1] when he arrived in September 2009, he submitted updated Forms 866B and 866C disclosing this in March and June 2010 and both the Department and the RRT were fully cognisant of it before the visa was granted in August 2010.[2]

    [2] Forms 866B and 866C dated 26 March 2010 contained on [Department file number]

28. The delegate assessing the applicant’s protection visa application considered [Alias 1] was the applicant’s correct identity and that he was a Pakistani national. On review, the RRT accepted the applicant’s evidence as to the circumstances in which he had obtained the passport in the name of [Alias 1] that he used to travel to Australia and found his correct identity was [applicant name], Afghan national.

29. While the Department initially granted the applicant a protection visa in August 2010 in accordance with the RRT’s findings as to identity, it appears that the decision to re-examine the issues surrounding the applicant’s identity was made after the applicant applied for Australian citizenship in 2014. The s.107 notice sets out that additional checks with the Pakistani authorities in 2015 confirmed the passport issued in the name of [Alias 1] was genuine and that the applicant had presented a Pakistani National Identity Card in the name of [Alias 1] at two IELTS tests in 2007. It assessed that as the applicant held a Pakistani passport and National Identity Card and such documents are only issued to citizens of Pakistan, [Alias 1] was the applicant’s correct identity and he is a Pakistani citizen.

30. As noted above, further adverse information was contained in the certificate folios and not disclosed to the applicant in the s.107 notice. The applicant was invited by the Tribunal to respond to that information pursuant to s.424A of the Act and I address each of those matters below.

    Pakistani National Identity Cards and education documents

31. As put to the applicant under s.424A, NICs for [Alias 1], [Alias 1]’s brother [Mr B] and father [Mr A] were submitted in support of [Alias 1]’s student visa application. NADRA have confirmed those documents were genuinely issued and record that [Alias 1] and [Mr B] are the sons of [Mr A]. The NICs were issued in 2001 and 2002 and appear to be the old manual NICs, rather than the new computerised NICs (CNICs). The applicant’s NIC is stated to be valid until [November] 2014.

32. Further the department has verified the education documents submitted in support of [Alias 1]’s student visa application as genuine. In particular the Baluchistan Board of Intermediate and Secondary Education confirmed the records were true and correct and the [named] High School and [Institute of Technology] confirmed [Alias 1]’s attendance at those schools.

33. The Department appears to have proceeded on the basis that:

    ·the identity and education documents were genuinely issued by various arms of the Pakistani authorities;

    ·the applicant was entitled to be issued those documents; and

    ·the documents are therefore determinative of his citizenship.

34. The applicant agrees as to the first point and it is the second and third of those matters that are in dispute in this review.

35. The applicant does not deny that he and his family members hold apparently genuinely issued Pakistani NICs as set out above, but claims they are not legally entitled to hold those documents and for that reason they are not indicative of the family’s citizenship.

36. He states his family arrived in Pakistan in or about 1990 and the NICs were purchased by his father from a person named [Mr C] so that he and his brother could attend school. He acknowledges they are genuinely issued NICs but claims that they are ‘false’ in the sense that they were issued in false identities provided by [Mr C], who is falsely recorded as the father of the applicant’s father [Mr A] on [Mr A]’s NIC (and therefore the applicant’s grandfather). He states that he and his brother used those false identities to complete their education. I note the applicant has given broadly similar statements to the department and the former RRT on a number of occasions since 2010.

37. For the reasons that follow, I accept the applicant’s account of the circumstances in which his family obtained their Pakistani identity documents to be true. In making that assessment I have had regard to DFAT’s advice that the Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan. DFAT reports that more recent Hazara arrivals from Afghanistan, being citizens of Afghanistan and not Pakistan, are not legally able to obtain Pakistani NICs.[3] DFAT’s most recent report indicates Pakistan is host to approximately 1.4 million registered Afghan refugees and one million unregistered Afghan refugees, some of whom have been displaced for nearly 40 years.[4] As the applicant’s family arrived in Quetta, Pakistan in or about 1989/1990, I accept they were not entitled to Pakistani citizenship.

    [3] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March at 3.14.

    [4] DFAT DFAT Country Information Report: Pakistan 20 February 2019 at 3.49 – 3.58

1. DFAT notes that while Afghan refugees residing in Pakistan have access to schools and education run by the UNHCR, resource constraints mean that Afghan refugees compete with the host population for such resources. It is apparent from DFAT’s report that there is a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain non-genuine Pakistani identity documents in order to obtain access to government-run services including health and education, which are otherwise reserved primarily for Pakistani nationals.[5]

   [5] Ibid

2. Further DFAT reports that document fraud is widespread in Pakistan, due to the relative ease in acquiring fraudulently obtained genuine documents. DFAT states fraudulently obtained genuine documents are common and generally preferred over counterfeit documents as they are difficult to detect[6]. While DFAT reports the newer CNICs contain a number of security features which have reduced the incidence of document fraud, it is clear that they have not overcome the problem that genuine documents are issued on the basis of false information.

   [6] DFAT 2017 DFAT Country Information Report Pakistan 1 September at 5.70 – 5.76

3. There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani national identity cards required to access government and other services. DFAT reported in 2017 that the NADRA was engaged in a campaign to target fraud in relation to CNICs and had identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation. Pakistani authorities have put in place measures to combat the fraudulent issue of documents and can cancel or block CNICs suspected to be fraudulent.[7]

   [7] DFAT 2017, DFAT Country Information Report Pakistan, 1 September at 3.10.

4. Tens of thousands of fraudulently issued CNICs have reportedly been blocked by NADRA, with the former Interior Minister Rehman Malik reported to have stated that he had ordered NADRA to block as many as 85,000 CNICs in Balochistan alone during his tenure between 2008 and 2013.  NADRA’s deputy assistant director Qamar Nadeem was found guilty of issuing CNICs and birth certificates to foreigners in September 2015 and another assistant director, Shahid Yousaf, was arrested in Peshawar in 2017 for issuing CNICs to Afghan nationals.  NADRA has reportedly sacked 200 officials for issuing CNICs to foreign nationals and is collaborating closely with the Pakistani authorities in relation to the arrest, investigation and prosecution of those suspected of registering foreigners.[8] Further sources cited in the applicant’s submissions report similar issues.

   [8] ‘House of cards - Why NADRA’s system is far from being flawless’, Herald (Pakistan), 19 April 2017, CXC90406619198

5. The Act recognises that a false or ‘bogus document’ includes a document that purports to have been, but was not, issued to a person as well as a document that was obtained because of a false or misleading statement[9].

   [9] See the definition of ‘bogus document’ in s5(1)

6. In view of the country information cited above, I accept the applicant’s evidence to the effect that his family obtained apparently genuine NICs by fraudulent means and that in that sense the NICs are false or bogus documents. I accept he used that fraudulently obtained NIC to attend school in the name of [Alias 1] and sit the IELTS test in 2007. I note that the education documents verified by the Department are consistent with the applicant’s stated education history in his protection visa application, except in so far as they record the name of the student as [Alias 1].

   Pakistani passport

7. It is not in dispute that the applicant travelled to Australia on a Pakistani passport. That passport was issued in the name of [Alias 1] but contained the applicant’s photograph and it has been verified as a genuine passport by the Pakistani authorities.

8. DFAT reports that generally the only supporting documentation required to obtain a passport is a person’s CNIC. As the applicant has been in possession of a genuinely issued NIC in the name of [Alias 1] since 2002, I accept he was able to use this to obtain a genuinely issued Pakistan passport. In the circumstances outlined above, I do not consider the passport to be probative evidence of his Pakistani nationality.

   Afghan identity documents

9. I note the Departmental delegate who first determined the applicant’s protection claims on 13 January 2010 records that during the interview on 18 December 2009, it became apparent that the applicant had knowledge of and contacts in Afghanistan, possibly from living there for extended periods.

10. The applicant submitted a copy of an Afghan taskera to the Department at the time of his protection visa application. The applicant states he returned to Kabul, Afghanistan in late 2004 to obtain his identity documents with the assistance of his uncle and cousins who remained living there.

11. The applicant states the taskera was issued to him personally in Maydan Wardak province in Afghanistan at that time, when he attended with his cousins and uncle and gave the names of his father and grandfather to the officer. He also provided to the Department another identity document issued by the Interior Ministry in Wardak and dated [November] 2009. I accept the second document is not a taskera, but an alternative identity document obtained by the applicant’s cousin in Kabul when the applicant believed he had lost his original taskera.

12. The protection visa delegate’s decision states that examination of the applicant’s Afghan identity documents by the Document Examination Unit had proven inconclusive. A Document Examiner’s report dated 12 January 2010 on the protection visa grant file which appears to relate to the taskera notes that it contains no security features and three poor quality wet stamp seals. It states that it does not exhibit security characteristics expected in secure documents, that the security introduced during the document issuing process is operating effectively but has limited security value and there is no evidence of fraudulent alteration to the personal data, including the photograph. It concludes that the quality of the security and the nature of the document limit the ability to determine whether this is a legitimately manufactured and issued document.

13. I note that Afghan taskeras are known to contain no security features. DFAT reports that prior to the introduction of e-taskeras in 2018, taskeras were printed on plain paper and contained no security features other than stamped seals as well as a range of biographical information consistent with that found on the document presented by the applicant. There is nothing in the materials before me that would suggest the Department has sought to verify the authenticity of the taskera with the Afghan government. The Afghan Embassy has provided a letter certifying that [applicant name] son of [Mr A] is a citizen of Afghanistan born in Wardak, Afghanistan on [Date 1] and a certified copy of that letter has been provided to the Tribunal which tends to confirm the taskera’s authenticity. He has also been issued an Afghan passport containing his photograph by that Embassy which is again indicative of his identity and Afghan nationality.

14. Further the applicant has provided a significant number of other identity documents relating to his family, including his father’s taskera, his father’s military discharge papers, his grandfather’s taskera, his uncle [Mr D]’s taskera and his sister’s Afghan identity document and Afghan passport issued in Wardak, Afghanistan in 2013. I also give weight to the two statements of [Mr E]. In his 2017 statement he states he first met the applicant in Pakistan playing soccer in the late 1990s and their families were known to each other in Quetta as Afghan refugees. In his most recent statement dated 2 May 2020 [Mr E] states he always understood that [the applicant] and his family were Afghan and he could identify from his dialect that he was from Wardak province. He states that he was known by the Afghan community in Quetta as [applicant name], but he had also heard people calling him [Alias 1].

15. According to the identity assessment contained on the departmental file, an Afghan driver’s licence issued [January] 2005 expiry [February] 2010 submitted by the applicant was assessed by the Department’s Document Examination Unit as counterfeit, on the basis that other licences with similar characteristics were known to be counterfeit. A report dated 17 February 2016 o the applicant’s citizenship file concludes that there is qualified support for the examiner’s opinion that the licence is counterfeit, on the basis that it is linked via manufacture to other licences assessed as counterfeit. In light of the other evidence before me, I give little weight to that document as evidence of the applicant’s identity or nationality.

16. Having regard to the evidence as a whole, I am satisfied the applicant is [applicant name], Afghan national born [Date 1] in [Location], Afghanistan. I am satisfied that the information set out in his protection visa application as to the country against which he was seeking protection, the reasons he left that country, what he feared would happen if he returned to Afghanistan and whether he would be protected by the Afghan authorities if returned to that country was correct.

17. For these reasons I find the applicant did not give incorrect information in his protection  visa application in relation to question 1 (his name), question 7 (his date of birth), question 8 (his place of birth), question 21 (his citizenship at birth), question 22 (his current citizenship), question 40 (the country from which protection is sought), question 41 (the reasons he left that country), question 42 (what he feared would happen if he returned to Afghanistan), question 43 (who he thought would harm him if he went back to Afghanistan), question 44 (what he thought would happen in Afghanistan), question 45 (whether he would be protected by the Afghan authorities) and question 67 (his declaration).

18. It follows that the applicant there were no non-compliance in the way described in the s.107 notice and the ground for cancellation is not made out.

    Conclusions on non-compliance

19. For the above reasons, 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. 

20. 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.

    DECISION

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

    Alison Murphy
    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.