1720186 (Migration)

1720186 (Migration) [2019] AATA 6882 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1720186

MEMBER:Sean Baker
DATE:23 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 23 September 2019 at 3:46pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – misrepresentation of identity – country of citizenship – claimed stateless Faili Kurd – brother’s Iraqi passport – applicant’s travel and entry into Iraq – consideration of discretion – non-refoulement obligations – Faili Kurds who are Iraqi nationals – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 107A, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was found to have provided incorrect answers in his protection visa application, and the reasons for cancelling outweighed those against cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the Department’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Certificate
On the Department file is a certificate which purports to protect certain information under s.375A. I explained at the hearing that I was of the initial view that this was not a valid certificate as it had not explained the public interest reason fully for any of the information it purported to protect. I provided a copy of the purported certificate to the applicant’s representative. I noted that I would provide the relevant information to the applicant (which had largely been disclosed to him in the Department decision), but would attempt to maintain the privacy of his brother as long as that did not restrict giving the applicant procedural fairness. I noted that I would not disclose or discuss the credit card details of his brother’s migration agent as these are not relevant to the review and to maintain the privacy of that person.
I find that the purported certificate at Df. 100 is not a valid certificate because it does not explain the public interest reason for the non-disclosure of the information. I have therefore disclosed the information to the applicant in as much detail as required for him to meaningfully engage with the information.
S.109
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.
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.
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.
Was there non-compliance as described in the s.107 notice?
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) in the following respects.
Section 107A makes clear that the non-compliance particularised in the s.107 notice can include non-compliance with a previous visa.
The decision record indicates that the applicant was recognised as a refugee on the basis that he claimed to be an undocumented stateless Faili Kurd who had suffered serious discrimination in Iran. He also declared his brother to be [Brother A], and his father and mother to be [Father name] and [Mother name], and all of them to be stateless.
According to Department records, [Brother A Alias], also known as [Brother A] was granted a protection visa on 21 January 2013 based on claims of being a stateless Faili Kurd from Iran.
Since the grant of the applicant’s protection visa, adverse information had been brought to the Department’s attention regarding the applicant’s claims of being stateless. The Department had found that the applicant’s brother’s true name is [Brother A Alias], and that he holds an Iraqi passport and an Iraqi National Identity card. Possession of these documents is evidence that the applicant’s brother is an Iraqi citizen. The brother’s Iraqi passport lists their mother as [Mother Alias].
According to Iraqi nationality law,[1] the fact the brother is an Iraqi citizen confirms that the visa holder’s father would be an Iraqi citizen and that as a child of an Iraqi citizen, the applicant is also an Iraqi citizen, meaning at the time of his application for his protection visa the holder was not stateless as claimed but was an Iraqi citizen.
[1] Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006, available at: 29 July 2019], Art. 3.
The applicant travelled to Iraq from [May] 2014 to [July] 2014, as evidenced by his outgoing and incoming passenger cards on which he declared he had travelled to Iraq.
It appears the applicant has misrepresented his identity and in particular made false claims of his nationality and of being stateless.
The incorrect answers are particularised in the decision record as such:
On the form 866B which formed part of the applicant’s application for the protection visa:
·     He listed his [Brother A] as a stateless person at Christmas Island. The delegate found this was incorrect as the brother’s true name was [Brother A Alias] and he is an Iraqi citizen;
·     He listed his mother as [Mother name] and his father as [Father name] and stated they were both stateless. The delegate found this was incorrect because the mother’s name in the applicant’s brother’s Iraqi passport is [Mother Alias], and as the applicant’s brother is an Iraqi citizen, so too would be their father.
On the form 866C which formed part of the applicant’s application for the protection visa:
·     The applicant stated that he was not known by any other names. The delegate found that this was incorrect as given the applicant’s brother’s family name had been found to be [Surname 1], it was most likely that the applicant had the same or similar family name;
·     The applicant stated that his citizenship at birth was ‘stateless’. The delegate found that this was incorrect because according to Iraqi nationality law, as the applicant’s father had been found to be an Iraqi citizen, and given the applicant’s brother was a proven Iraqi citizen, the applicant was considered also to be an Iraqi citizen;
·     The applicant, when asked what his current citizenship was he stated “N/a”. The delegate found that this was incorrect because the applicant is an Iraqi citizen;
·     When asked whether he held any other citizenship or was a national of any other country the applicant stated “No”. The delegate found that this was incorrect as the visa holder had been found to be an Iraqi citizen;
·     When asked why he had left Iran, he stated he left Iran because he was a stateless Faili Kurd. The delegate found that this was incorrect because he had been found to be an Iraqi citizen;
The applicant disputed that he had provided incorrect answers in his response to the NOICC dated 27 September 2016, including a statutory declaration from the applicant declared on the 26 September 2016.
·     He said that he is stateless and has never held citizenship of any country, including Iraq. He said that neither Iran or Iraq will issue him a passport or travel document to return to those countries, and if his visa is cancelled, he will not be able to return to either of those countries;
·     He said that he was born a Faili Kurd and had never provided any incorrect information to the Department about his ethnicity. He said he had no identity documentation in Iran as his family’s green card expired in 2001, and if he were to return to Iran, he would be persecuted for being a Faili Kurd and departing Iran illegally;
·     He maintained that he had experienced discrimination and a lack of rights in Iran, including that he could not obtain identity documentation, could not study, or marry;
·     He said that his parents only held Iranian Green cards, which expired in 2001. He said that his father’s name is [Father name], son of [name], and is mother’s name is [ Mother name], daughter of [name]. He said his mother was known in Iraq as [Mother Alias] and in Iran as [Mother name] and when he applied for his protection visa he raised that he and his brother had provided different versions of her names and had been reassured that this would not be a problem;
·     He said that his brother, [Brother A] was forced to travel to Iraq to visit his girlfriend, and that in order to travel to Iraq his brother paid some people for an illegal Iraqi passport which was then sent to him in Australia;
·     He said that he had returned to Iraq in 2014 to visit his [uncle] who lives in Najaf and to meet a girl, however her family did not approve of them being married as the applicant had no Iraqi identity documents and was not an Australian citizen;
·     He used his Australian Titre de Voyage to travel to Iraq and return to Australia. He had asked a friend in Iraq to obtain an Iraqi identification document for him which he used to board his departure flight in Melbourne. He said he had attempted to use this document to apply for an Iraqi visa, but the Iraqi [Embassy] did not accept the document. He said that when he arrived in Najaf he presented his passport, containing six $100 bills and he received an arrival stamp.
The delegate did not accept the claims made in the applicant’s response, finding that:
·     The applicant and his brother had identified each other as brothers, that his brother had been found to be an Iraqi citizen and as citizenship in Iraq is bestowed via the parents, , the visa applicant therefore is an Iraqi citizen, and therefore the applicant provided incorrect answers to questions where he identified his brother and parents as stateless and himself as stateless and not a citizen of any country;
·     The applicant provided incorrect spelling of his mother’s name, and it was most likely that the applicant was known by another family name, being [Surname 1] like his brother had been found to be or a similar name;
·     The delegate did not accept the argument that the applicant’s brother obtained an “illegal Iraqi passport” which was sent to him in Australia and which the brother then used for travel to Iraq, an argument which the delegate noted contained the inference that the brother is not genuinely an Iraqi citizen. The delegate noted that the Department had concluded that the brother was an Iraqi citizen and there was no indication that either of the identity documents found in the brother’s possession were non-genuine. The delegate noted further that the brother’s Iraqi passport contains multiple indications that the document was used by the brother before he travelled to Australia in 2010, making the applicant’s argument that it was obtained and sent to his brother whilst in Australia implausible;
·     The delegate noted that the applicant had not provided this information in respect of the earlier consideration of cancellation of his Protection visa, or during the Department’s related assessment of international treaty obligations, and the delegate considered that the applicant appeared to have provided this information in a final attempt to avoid cancellation of the visa under review;
·     The delegate acknowledged that the applicant maintained he was a Faili Kurd and found that it was possible that this was true, but that as the applicant had been found to have Iraqi citizenship, he was not stateless as claimed and had provided incorrect information when he claimed to have left Iran owing to discrimination experienced as a stateless Faili Kurd.
The delegate found the visa was liable to cancellation and having regard to the information before them, they considered the prescribed circumstances and other relevant matters and concluded that the visa should be cancelled.
The applicant provided a copy of the delegate’s decision to the Tribunal.
Also provided was a copy of the previous representative’s submission in response to the NOICC, an ABN record for the applicant, and a character letter from the Imam of the applicant’s mosque.
The Tribunal on 7 March 2019 requested the applicant provide his Iraqi national Identity card that he claims was fraudulently made, to allow a document examination, and evidence of his travel and stay in Najaf including photographs. The Tribunal also noted that it wished to take evidence from the applicant’s brother at hearing. The request for this document/information, and to provide a phone number for his brother prior to the hearing, was reiterated in the hearing invite of 21 March 2019 and the covering email addressed to his representative.
At hearing I asked the applicant for his Iraqi national Identity card that he claims was fraudulently made. He said he had lost this so he could not provide it.
I asked if he had any photos of his time in Najaf. He said he did not and then said he had taken some but he was not in them. He said he would send these after the hearing.
I confirmed with the applicant that his brother in Australia was [Brother A]. The applicant said he was unaware of his brother’s migration status. I asked if he had his brother’s contact details and he said his brother was in Sydney and had broken his arms and legs so he couldn’t really come. I asked if I could call his brother and he said I could. He said he didn’t have his brother’s contact details and had not really spoken to him for a while.
I put to the applicant, pursuant to s.359AA, the information the purported certificate covered. I noted to the applicant that from his response to the Department it appeared he was aware of most of this information but I was required to put it to him formally under the law.
The first set of information put to the applicant was that on the department file is information about his brother and brother’s documents. What this says is that his brother stated in February 2014 that he had travelled to Iraq, and at the airport when he returned back to Australia, he held an Australian titre de voyage but also produced an Iraqi passport containing Iranian visas with entry and exit stamps, in and out of Iran and Iraq. His passport was in the name [Brother A Alias]. This identity had never been declared to the Department. The passport, issued [in] 2010, had arrival stamps indicating this passport was used by the brother to travel via Iran and [Country 1] to Australia in 2010. There were several entry and exit stamps in the passport showing the brother travelled between Iraq and Iran and did not appear to have had any difficulties travelling between the two countries. I explained to the applicant that the relevance of this information was that it may indicate his brother held an Iraqi passport, that that was genuine because the brother had used it on a number of occasions to travel between Iran and Iraq, and that he had held this passport since 2010 and when the applicant had declared his brother to be stateless in his protection application in 2011. This may indicate to the tribunal that he had provided incorrect information in his protection visa application, it may indicate he had been untruthful about his brother’s nationality, and when considered with the Iraqi nationality law referred to earlier, may indicate that the applicant is also a national of Iraq, and may indicate he had also travelled to Australia on an Iraqi passport and that his declaration that he was stateless in his protection visa application is incorrect. I explained that this may lead me to conclude that there was non-compliance as set out in the s.107 notice, and that the ground for cancellation was made out. I explained to him the consequence of this information being relied on.
The second set of information put to the applicant was information about the documents found on his brother when he was searched at the airport. This included a copy of his Iraqi National Identity card, a copy of his Iraqi Passport, and photographs of the applicant’s brother in Iran and a photograph of a passport of an Iranian woman who it is said his brother wished to marry. The email that was sent with this information said that the photos in the applicant’s brother’s Ipad showed he spent most of his time in Iran, he admitted he had been in Iran and travelled on his Iraqi passport, which he had left in Iraq, he could not explain why he had done this, and he said he had entered Iraq with his Iraqi National Identity card. I explained to the applicant that the relevance of this information was that it may provide further information about his brother’s movements, that his brother had no difficulties traveling between Iraq and Iran, which may indicate that the Iraqi National Identity card and Iraqi Passport are genuine, which in turn may indicate the information the applicant provided about his brother is untrue, and that in fact his brother is an Iraqi national and has been since at least 2010. It may indicate the applicant is an Iraqi national and had been so since at least then, and may lead the tribunal to conclude there was non–compliance as set out in the s.107 notice and that the ground for cancellation is made out. I explained to him the consequence of this information being relied on.
The third set of information put to the applicant was that on the Department file was the protection visa application and supporting statements made by the applicant’s brother, that this information stated that the brother was a stateless Faili Kurd, and that he left Iran because of the discrimination and harm he experienced as a stateless Faili Kurd. The brother indicated the applicant was his brother and that he had the same parents as the applicant. I explained to the applicant that the relevance of this information was that it may indicate that his brother declared himself to be stateless in his protection visa application, and when taken with other information already put to the applicant may lead me to conclude his brother had provided incorrect information in his protection application, that the brother is an Iraqi national and that the applicant and their father may also be Iraqi nationals. I explained to him the consequence of this information being relied on.

The applicant, after a break to consult with his representative, elected to respond at the hearing. He said that his brother had used the same passport when he wanted to come to Australia. He had already mentioned how his brother had made that passport, it was obtained with money. The applicant said he had also obtained a passport with money, but an Iranian passport, and that was the passport he had left Iran with. I asked if he still had this passport and he said he did not, he had thrown it in the water when he was at sea. I clarified that he was saying his brother’s passport was non-genuine. He agreed, saying it was something made with money. I asked if the Iraqi National Identity card was also non-genuine and he said it was. I noted that I had some doubts about this explanation because of the brother’s ability to travel between Iran and Iraq and to enter Iraq without any apparent difficulties which may indicate it was in fact a genuine passport and that his brother was an Iraqi National. The applicant responded that the same way he had done it was the same way his brother had done it, a genuine passport but with details that were untrue, he said a genuine passport under someone else’s details but with their photo. He said that all Faili Kurds got to Australia like that. I noted that the ability of his brother to use the document successfully in 2010 and again in 2014 may indicate that his brother was in fact a National of Iraq. He said it was a fake passport. I asked if there was anything further he wished to say about the sets of information put to him. He said that he could say that that passport had expired and his brother was unable to renew that. I asked what had happened with his brother’s case and he said he did not know. I asked if his brother’s visa had been cancelled and he said he did not think so. I asked then if his brother still had a visa and he said he did; a permanent visa.
Later in the hearing the applicant said that his brother’s passport was in another name and when he had arrived at Christmas Island in 2010 his brother had provided information about how he had obtained the passport to the Immigration Department. He said at all times he and his brother had been truthful. He said his brother had managed to use that passport again in 2014. I noted that this might indicate it was a genuine document if his brother was confident enough to use it again. He said that it was a genuine passport with his brother’s name, and all the Fali Kurds did this. He said his brother had to use the passport to go and see his fiancé.
I asked the applicant about his travel to Iraq. I noted that he had travelled on an Australian Titre de Voyage he had obtained [in] 2014, a copy of which he had provided to the Department. I noted that whilst this had entry and exit stamps from Iraq, it had no Iraqi visa. He said he had used his Iraqi National Identity Card. He said this was the Card that he referred to in his statutory declaration, and that he had gotten this card and went to the Iraqi consulate to get a visa and when they realised this was not a genuine national Identity Card the Embassy did not provide him with a visa. He said actually he used that to fly from Australia to Iraq. He said then when he had arrived at Najaf airport he was able to exit the airport with money. I noted again that I had requested he provide his Iraqi National Identity card to confirm it was non-genuine, and that it was hard to place weight on this information without that. I noted that I may come to the view that he had gone to Iraq with an undeclared Iraqi passport or that the National Identity card was genuine because he did not have an Iraqi visa in his Australian travel document, and this might indicate or further indicate he was an Iraqi national. He responded that if he had had an Iraqi passport they would have stamped that on arrival, but he did not have that so they stamped his Australian travel document, and he did not show the ID Card that he made. I asked if he was saying that all he had showed the Iraqi authorities was his Australian travel document and he said he was. I noted that I had some concerns with this claim because country information indicates that you must have a visa to travel to and enter Iraq unless you are an Iraqi citizen.[2] He said that with the Iraqi National Identity Card he was able to get to Iraq, and as he spoke Iraqi fluently, he paid $600 as a bribe and was able to exit the airport.
[2] DFAT Country Information Report Iraq, 9 October 2018, 5.20 - 5.23;
I discussed with the applicant the Iraqi Nationality Law and confirmed he understood the chain of reasoning that if his brother was an Iraqi national this strongly suggested he was also through descent from their father, which would also make the applicant an Iraqi national. He indicated he understood the reasoning but that it was incorrect because his father was stateless and died last year and was buried in Iran.
At the end of the hearing I allowed time for the applicant to provide photos of his time in Iraq to demonstrate he had been in Najaf for the time he was there as he claimed. I asked the applicant to look for the National Identity Card he claimed he had lost. He said he would try. I asked for a statement from his brother addressing the concerns. He said he did not have his contact details but could get them. He said because his visa had been cancelled because of what his brother had done, he had not been speaking to his brother.
After the hearing the applicant provided photographs which show him with another person [in] April 2014 with the geo-location Melbourne. On [two dates in] May 2014 there are photographs with the geo-location of [a specified location in] Najaf, and then photographs with the same location on [dates in] July 2014. On the attached email his representative notes that he was able to source these photographs of his stay in Najaf, but was unable to source any further documents as requested however the photos provide dates and geographical location evidence.
On 31 July 2019 the Tribunal sent the applicant a letter pursuant to s.359A in the following terms:
Information gained from Departmental systems indicates that your brother, [Brother A], also known as [Brother A Alias], had his substantive visa cancelled on 10 May 2016 and since that time has not held a visa.
This information is relevant because it contradicts your evidence at the hearing that your brother continued to hold a substantive visa at the time of the hearing on 4 April 2019. It may also provide further support for your brother having been found to be an Iraqi national and to have had his visa cancelled on this basis, which may then provide further support for the view that your father, and therefore you, are also Iraqi nationals, which may lead the Tribunal to conclude that the ground for cancellation is made out and that weight should be given to this information in cancelling the visa.
The consequence was explained.
A submission was received on 14 August 2019 responding to the adverse information. This submission states that the applicant maintains he was unaware of his brother circumstances and had provided information to the Tribunal outlining that he was unaware of his brother’s circumstances. The submission states that the applicant cannot be held to know the particulars of his brother’s case as they live separate lives. It is stated that when the hearing took place the applicant was under the belief that his brother’s visa had not been cancelled. The submission notes that the representative has recently lodged an FOI request with the Department on behalf of the applicant’s brother.
The submission goes on to state that the applicant states that his brother admitted to holding a fake Iraqi passport. The submission states that there is no way to conclusively determine the possession of an Iraqi passport is conclusive evidence of Iraqi citizenship/nationality. It states that country information supports that counterfeit but valid Iraqi passports can be obtained through bribery of government officials.
The submission goes on to quote two tribunal cases, from 2000 and 2014 which it says explanations regarding the purchases of fake passports were accepted by the Tribunal. The submission details country information that genuine Iraqi passports can be obtained unlawfully in Iraq through bribery, and that corruption is endemic in Iraq.
It is claimed that on arrival to Australia the applicant used a fake passport which was provided to the Department and was accepted as a fake.
It is argued that an Iraqi passport is not listed as one of the officially issued identity documents and therefore cannot be used to conclusively determine the applicant Iraqi nationality.
The submission notes that the name used in his brothers passport is manifested Iraqi moniker utilised for the purpose of processing the valid false passport, and the applicant’s mother’s name referred to in the passport is incorrect and further supports the imputation that the manifested moniker was used to process the passport.
The submission states that the applicant should not be punished for the wrongdoing of his brother, but his matter should be deliberated separately on the basis of the information provided to the tribunal.
The submission concludes that if the basis of the cancellation was that the applicant is an Iraqi national, due to his brother being a holder of a false but valid Iraqi passport, then the ground for cancellation is not correctly made out.
Consideration
The information before me raises serious concerns that the applicant is not stateless as he has claimed but is in fact a National of Iraq. I have carefully considered the applicant’s evidence and weighed this against the information before me, including that put to him under s.359AA at the hearing and s.359A after the hearing.
A number of initial concerns must be addressed. The post hearing submission of 14 August 2019 raised several matters for the first time. The submission noted that the representative had now lodged an FOI submission on behalf of the applicant’s brother. I do not accept, and it was not advanced, that this was a request to delay making this decision. I am willing to accept that the applicant was not aware of his brother’s circumstances as they live separate lives, and I have drawn no adverse credibility in relation to his lack of awareness of his brother’s migration status.
The submission also mentions a fake passport of the applicant’s which was provided to the Department and accepted as a fake. I find that the submission has incorrectly specified the applicant when it is meant to refer to the applicant’s brother having provided a fake passport to the Department. I do not accept the claim that the passport was accepted as a fake by the Department.
The brother’s identity documents and travel to Iraq and Iran
Contrary to the latest submission, I consider that the applicant’s brother’s situation is of considerable relevance when considering the situation of the applicant.
The information before me indicates that the applicant’s brother’s visa was cancelled on 10 May 2016, and that it remains cancelled. The information is that the applicant’s brother’s protection visa was cancelled on the basis of him holding an Iraqi passport and an Iraqi National Identity card which the Department found to be genuine, and therefore the Department found the applicant’s brother to be a national of Iraq and not stateless as he had claimed.
The applicant has claimed that these documents held by his brother are not genuine documents. He has claimed that his brother admitted to holding a fake Iraqi passport, and that country information supports that counterfeit but valid Iraqi passports can be obtained through bribery of government officials. The most recent submission includes references to two Tribunal decisions, and urges that the same assessment be made in this case of the brother’s passport. The submission goes on to argue that a passport is not one of the four officially listed identity documents, and that the applicant’s brother used a ‘manifested Iraqi moniker’ for the purpose of obtaining the valid false passport, and this was supported by the applicant’s mother’s name in the passport being incorrect.
There are a number of difficulties with these arguments. The first is that the submission ignores the fact that the applicant’s brother held an Iraqi passport and an Iraqi National identity card. Both of these were found by the Department to be genuine documents, and I consider both, if found to be genuine, to support a conclusion that the holder is an Iraqi National.
But the greater difficulty with this argument is that the applicant’s brother used the passport to leave Iraq in 2010; that passport having arrival stamps indicating this passport was used by the brother to travel via Iran and [Country 1] in his attempt to travel to Australia in 2010. He then used this passport to travel between Iraq and Iran in 2014 and appeared to have entered Iraq without any apparent difficulties. As I put to the applicant at the hearing, his brother’s decision to use this passport again in 2014, and the indication that he appeared to have been able to travel between Iran and Iraq and re-enter Iraq without any apparent difficulties, tends to indicate that the passport is genuine – that is, genuinely issued, and issued on the basis that the brother is entitled to the passport as an Iraqi citizen.
I find that the applicant’s brother’s willingness to use this passport not only to leave Iraq in 2010, but to use it again in 2014 to travel between Iran and Iraq is strongly indicative that this passport is genuine. I find that the applicant’s brother’s name is in fact [Brother A Alias], and that according to the applicant’s own testimony in his statutory declaration of 26 September 2016, their mother is known as [Mother Alias] in Iraq. I therefore do not accept that the applicant’s brother’s passport contains an ‘Iraqi moniker’, nor that their mother’s name in that document is incorrect. I have considered the Tribunal decisions offered but I do not find these helpful – the factual situations in these cases is very different to the situation here, and the reasoning of those Tribunals does not assist. I further note that the Tribunal is not bound by earlier decisions of the Tribunal.
I note also that the applicant’s brother, according to the information put to the applicant at hearing, had not ever declared that he had been known by the name [Brother A Alias]. If it was the case that this was a moniker used to obtain a non-genuine passport, it would be reasonable to expect him to provide that to the Department. He did not, raising concerns that the brother was engaging in an attempt to conceal this identity from the Department.
I find on the information before me, that I have put to the applicant and that he has commented on, that the applicant’s brother is an Iraqi national. I find therefore that the applicant’s declaration in his protection application that his brother was stateless at the time he made that application in 2011 was untrue and that the applicant therefore provided incorrect information in his protection visa application.
The applicant’s travel to Iraq and his Iraqi national identity card
According to the decision record, the applicant travelled to Iraq from [May] 2014 to [July] 2014, as evidenced by his outgoing and incoming passenger cards. The applicant claimed this was to visit his uncle and a prospective spouse. He said that he spent this time in Najaf. As I noted to the applicant, I had a number of concerns with his travel to Iraq.
The applicant said that he entered and departed Iraq on his Australian travel document, and this is evidenced by the stamps in that document (see Df. 49). He said that prior to this travel he had had a friend in Iraq produce a non-genuine Iraqi National Identity card. He had then tried to use this card to get an Iraqi visa at the Iraqi Consulate prior to his travel, but they realised it was not genuine and did not provide him with a visa. The applicant claims he used this non-genuine Iraqi identity card that to fly from Australia to Iraq. When he arrived in Iraq, he then paid a bribe to the Iraqi officials to exit the airport at Najaf.
As I noted to the applicant, country information indicates that to travel to and enter Iraq a person requires a visa unless they are an Iraqi citizen. He said that because he spoke Iraqi fluently, he paid $600 as a bribe and was able to exit the airport. Country information, which I raised with the applicant at hearing, indicates a valid travel document and appropriate approval such as a visa are required – and the sources indicate that there is a clear process for the checking of documents on arrival.[3] Whilst I understand that there is a high level of corruption in Iraq, I have some doubts about the applicant’s claims that he paid the authorities rather than go through this formalised process. Further, the applicant claims that prior to his travel he tried to obtain an Iraqi visa from the Iraqi Consulate in Australia, but that they refused to issue him one because they were aware or suspicious that his Iraqi national identity card was non-genuine. This appears to indicate a high degree of concern and checking by Iraqi authorities of documents to enter Iraq, and creates further doubts with the applicant’s claims that he was able to enter Iraq without a passport by bribing officials. Lastly, the fact that, as the applicant claims, his Iraqi National Identity Card raised the suspicions of the Iraqi Consulate staff leads me to doubt that he could have used this card, as he claims, to board his flight to Iraq – the Australian border staff and airline staff would be well-practiced in checking such documents for the applicant’s onward travel to Iraq.
[3] DFAT Country Information Report Iraq, 9 October 2018, 5.20 - 5.23.
For all of the above reasons, I do not accept that the applicant entered Iraq in the manner he claims. I do not accept that he sought a visa from the Iraqi Consulate but it was refused. I do not accept that he presented a non-genuine Iraqi Identity card to authorities in Australia and in transit as evidence he could enter Iraq. I do not accept that he bribed Iraqi authorities on arrival to Najaf to enter Iraq.
If the applicant had been able to produce the claimed non-genuine Iraqi National Identity Card this would have allowed me to place greater weight on his claims. He claims that he lost the card, so it cannot be produced for checking.
Having carefully considered the information before me and the applicant’s explanations, I find that the applicant did not travel to Iraq in May 2014 in the manner he claimed, but did so using genuine Iraqi identity documents which allowed him entry to Iraq without a visa. I find that he is a national of Iraq. Given my findings about his brother, and the Iraqi Nationality laws above, this leads me to find that the applicant has been an Iraqi National at least since his brother has been an Iraqi national, and that therefore the applicant was an Iraqi national at the time of his protection application.
The photos
The applicant was asked, and eventually provided, photos to demonstrate that he was in Najaf, rather than having travelled to Iran. I note that according to the applicant’s travel document that he entered Iraq at Najaf airport [in] May 2014 and departed that airport [in] July 2014, some two months later. Whilst I accept that the applicant has provided some photos with [a location in] Najaf as the geo-location, they only cover several days at the beginning and end of his time overseas, it appears that he has been selective with the information he has provided, and I place little weight on these photographs as establishing the applicant’s claims of where he stayed whilst overseas are true.

I have carefully considered the explanations of the applicant and the information he has provided. The applicant has not provided a great deal of information despite repeated requests for information and opportunities to comment on adverse information.
Having considered the information about the applicant’s brother, I have found that the applicant’s brother is an Iraqi national and is not stateless and was an Iraqi national and was not stateless at the time of the applicant’s protection application. I find therefore that the applicant provided incorrect information in his protection application in this respect. Further, I find that, considering the applicant’s claims, explanations and the information he has provided, that the applicant was aware that his brother was a national of Iraq when he declared him to be stateless.
Having considered the information and explanations before me, I find that the applicant is a national of Iraq, and is not stateless, for the reasons above. I find that for the reasons above he was an Iraqi national and not stateless at the time of his protection visa application and therefore the applicant provided incorrect information in his protection application in this respect.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: 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.
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 applicant responded to the NOICC. In this response, the applicant continued to maintain that he and his brother are stateless, and that if the visa is cancelled he will be unable to return to Iran or Iraq and that neither country will issue him with a passport or travel document. He claims that if he is forced to return to Iran he will be further persecuted as a Faili Kurd and for departing unlawfully.
the correct information
The correct information, as I have found above, is that the applicant and his brother are nationals of Iraq, and were so at the time the applicant made his application for protection, and therefore at that time neither he or his brother were stateless. The applicant continues to maintain that he and his brother are stateless and has not conceded the correct information. As above, I have found that the applicant has concealed and been less than forthcoming with information or evidence which would have allowed the true situation to have been determined and I give this factor some weight towards the visa being cancelled.
the content of the genuine document (if any)
This case involves the applicant having provided incorrect answers on his visa application. Therefore this factor is not relevant in this case and I give it no weight.
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
I firstly note that the wording of this provision includes the grant of a visa, not solely the visa being cancelled. In this case, I consider that the consideration of whether the applicant’s protection visa was granted on incorrect information or a bogus document is within the scope of this prescribed circumstance.
The applicant was found to be owed protection and granted a protection visa on the basis of his claim to be a stateless Faili Kurd, habitually resident in Iran. As the delegate’s decision indicates, the applicant did not at that time make any claims of persecution or mistreatment in Iraq for any reason.
As I discussed with the applicant, if I came to the view that he was a national of Iran and had been so at the time of his protection application, I may find that if this correct information had been provided at the time he would not have been granted the protection visa. I asked if he was of the view that he would have been granted his protection visa if this information had been known to the decision maker. I explained that Kurds with Iraq nationality claiming to be habitually resident in Iran may not have been owed protection at time applied for protection. He reiterated that he was stateless, and said that Faili Kurds don’t have identity.
I find on the information before me that the decision to grant the protection visa was based wholly or partly on the incorrect information, being that he was stateless, habitually resident in Iran. I give this some weight towards the visa being cancelled.
the circumstances in which the non-compliance occurred
As noted in the delegate’s decision, there is no indication that the incorrect information the applicant provided was beyond his control, or due to exceptional circumstances.
At hearing I asked the applicant if there were any compelling reasons for providing the potentially incorrect information. He responded that whatever he had said had been the truth and in the countries of Iran and Iraq, these are the type of countries in which you can do whatever you want with money.
I have considered the circumstances in which the ground arose. The applicant’s statements that he has told the truth and that anything can be purchased in Iran or Iraq, without detail and not addressing this factor, does not assist him. The applicant has not advanced any explanation or extenuating circumstances in relation to the non-compliance. I therefore give this no weight in favour of the visa not being cancelled.
the present circumstances of the visa holder
At the hearing I asked the applicant about his current circumstances. He said that he had broken up with his girlfriend in Australia because she thought he was using her for visa purposes. He said he had no children. He said he had lived here nine years and had friends and acquaintances here. When I asked him he said he had been working since he had arrived in Australia. As noted in the delegate’s decision, the applicant has his brother in Australia and there is no indication he has any other family here, with the remainder of his family outside Australia. The applicant has provided a character reference from the Imam of his mosque to the Department, which I have taken into account. He has not provided any other information about his current circumstances. I have taken into account that the applicant has now lived in Australia for many years and would be adapted to life in Australia.
Weighing what information I have before me I give this only little weight towards the visa not being cancelled.
the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has been engaged in the process, providing a response to the NOICC and participating in the review process. He has however continue to deny the non-compliance and the facts, as found above, that he and his brother are Iraqi Nationals and not stateless as claimed. Given he has continued to deny the non-compliance I give this factor no weight towards the visa not being cancelled.
any other instances of non-compliance by the visa holder known to the Minister
Whilst the applicant’s previous visa, his protection visa, was cancelled, this was on the basis of the same, or substantially the same information on which this visa was cancelled. I give this no weight in favour of the visa being cancelled.
the time that has elapsed since the non-compliance
As noted above, a considerable period has elapsed since the applicant made his protection visa application and provided the incorrect information to the Department. However, as also noted above, he has continued to deny he provided incorrect information, nor to acknowledge what I have found to be the correct information and I give this factor no weight towards the visa not being cancelled.
any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law by the applicant and I give this factor no weight towards the visa being cancelled.
any contribution made by the holder to the community.
I asked the applicant at the hearing if he had contributed to community. He did not specify any contribution. I noted the letter from the Imam of his Mosque. He did not provide any further information. On the information before me I give this factor no weight towards the visa not being cancelled.
I have gone on to consider other factors where relevant on the material before me or as raised under policy.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
I explained this consideration to the applicant and noted that I accepted the consequence of the possible affirming of the cancellation may be that his ability to apply for another visa may be limited and he may be detained, but that I might take the view this would only be for a short period. I explained that I might take the view it would only be for a short period if I found him to be a national of Iraq and therefore able to arrange identity and travel documents to return to Iraq reasonably expeditiously. The applicant said he could not obtain Iraqi documents as he did not have any and all his family were in Iran. I noted that he had an uncle in Najaf. He said his family were all in Iran.
Taking into account the findings above that the applicant is a national of Iraq, and my consideration and findings below, I find that the applicant would be able to return to Iraq. Therefore I do not accept that he would face indefinite detention.
I do accept that he may be detained whilst his travel documents are obtained, and that he would only be able to apply for a very limited range of visas to remain in Australia. I give these facts some weight towards the visa not being cancelled.
whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
As noted in the delegate’s decision, an International Treaties Obligations Assessment (ITOA) was conducted by the Department in relation to the applicant in December 2016. According to the Department decision:
During previous consideration of cancellation of the visa holder's class XA subclass 866 Protection visa, the Department conducted an International Treaties Obligations Assessment (ITOA) in respect of the visa holder. The ITOA delegate found on 06 December 2016 that the visa holder is an Iraqi citizen, not stateless, and is of Faili Kurdish ethnicity, and a Shia Muslim. As the ITOA delegate found that the visa holder is a citizen of Iraq, the delegate assessed that Iraq was the relevant country for the purpose of assessing whether the visa holder engages Australia's non-refoulement obligations; the ITOA delegate noted the possibility that the visa holder may have lived at some time in the past in Iran, but was not satisfied that he resided there continuously from 1984 to 2010, as he had claimed in his application for his Protection visa. The ITOA delegate noted that the visa holder had failed to advance any claims concerning harm feared in Iraq, but nevertheless considered whether the visa holder is at risk of harm in Iraq as a Faili Kurd and Shia Muslim. The ITOA delegate found that the visa holder does not have a well-founded fear of being persecuted in Iraq for a Refugee Convention reason, that he is not a refugee within the meaning of Article 1A of the Refugees Convention, and that he does not engage Australia's non-refoulement obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the International Covenant on Civil and Political Rights (ICCPR).
I raised this with the applicant at hearing. I raised with him country information which indicates that Faili Kurds in Iraq face a low risk of official discrimination where they are nationals of Iraq, as I have found the applicant to be, and a low risk of societal discrimination, and that since 2003 Faili Kurds have returned from Iran to Iraq.[4] I noted that the country information indicated that many Kurds lived in Shia areas or in Kurdish areas of Iraq and that the general security situation in these areas was better than in other areas of Iraq.[5] The applicant responded that he is not an Iraqi Kurd, their language is very different to the Kurdish language he speaks. I note that the applicant has claimed elsewhere to speak Iraqi fluently, and I do not accept that differences in Kurdish languages or dialects would mean the applicant could not live in a Kurdish or Shia area of Iraq.
[4] DFAT Country Information Report Iraq, 9 October 2018, 3.4 – 3.7.
[5] DFAT Country Information Report Iraq, 9 October 2018, 2.36 – 2.37.
I raised with the applicant information about the situation for Faili Kurds in Iraq:
Most Faili Kurds are Shi’a, unlike most other Kurds who are Sunni. Previous (Sunni-dominated) governments treated Faili Kurds with suspicion and hostility. In the 1970s and 1980s, the (Sunni) Ba’ath Party stripped tens or perhaps hundreds of thousands of Faili Kurds of their citizenship and expelled them from Iraq, mainly to Iran. Since 2003, Faili Kurds have returned from Iran to Iraq, and mainly live along the border with Iran, including in the provinces of Basrah (where an estimated 10,000 Faili Kurds live), and eastern parts of Diyala, Wasit and Maysan. Faili Kurd communities also live in Baghdad and may live in other areas. While most were initially stateless on their return to Iraq, many have now been able to regain their citizenship. Legislation to return citizenship is now in place, although the process can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.
Many Faili Kurds who have not regained their citizenship fear official discrimination based on their lack of documentation. Local NGOs attribute this fear to a lack of awareness amongst Faili Kurds of their rights. The federal government and the KRG have taken numerous steps to protect Faili Kurds, including provision of financial compensation and restitution of employment (although the deteriorating economic situation has affected this). Recovery of property that was confiscated or occupied when Faili Kurds were expelled is administratively complex, but legal processes exist to facilitate this. Courts have approved the return of properties, although opposition from current occupants has prevented some Faili Kurds from actually reclaiming their property.
Local sources claim that societal discrimination against Faili Kurds continues to occur, and that communities dominated by other ethnic or religious groups do not welcome Faili Kurds. This ostracism is also faced by other groups in areas where they are the ethnic or religious minority. The current number of Faili Kurds is difficult to estimate as many do not readily identify themselves by their ethnicity.
DFAT assesses that Faili Kurds face a low risk of official discrimination, although this risk rises for Faili Kurds who remain stateless. DFAT assesses that Faili Kurds face a low risk of societal discrimination.[6]
[6] DFAT Country Information Report Iraq, 9 October 2018, 3.4 – 3.7.
The applicant responded that his uncle has not been able to get identity documents and is in the black market and has a difficult life. I do not accept this claim, given my findings that the applicant has not been truthful about his own or his brother’s Iraqi nationality, I find that it is very likely that his uncle is also an Iraqi national. The applicant has not put forward any claims to fear harm on return to Iraq, other than to claim he is not a national and would not be able to return there, which I reject given my findings above.
On the basis of my findings above, I have found that the applicant is a national of Iraq. Therefore, I have assessed this factor considering that he will be returned to Iraq. Below I have also considered his claimed prior residence in Iran. I find, firstly, that the applicant can exercise the rights of an Iraqi National to be able to return to Iraq. I do not accept that he will be denied an Iraqi passport or travel document by the Iraqi authorities for any reason. I find there is no impediment and that he can return to Iraq.
I have carefully considered the situation for Faili Kurds of the Shia religion returning to Iraq. I find on the country information that Faili Kurds in the applicant’s position who have Iraqi nationality, are able to live with only a low risk of official or societal discrimination, which I find to be below the level of serious or significant harm, even on a cumulative basis.

100. I have also carefully considered the applicant’s claims that he cannot be returned to Iran as his Green Card expired in 2001, he has no right to enter/reside there and were he to return to Iran, he would be persecuted for being a Stateless Faili Kurd and departing Iran illegally. Given that I have found the applicant, and his brother, to be nationals of Iraq, I have significant doubts that the applicant and his family resided for any period in Iran. Even if I accept that the applicant and his family spent some time in Iran in the past, I have found that the applicant is a National of Iraq, and that he would be returning there, rather than to Iran. Even if I accept the applicant held a Green Card in Iran, that has now expired, and has no right to enter or reside there, I do not accept, given that I have found he is a national of Iraq, that there is any chance or risk of him being returned from Australia to Iran, nor of him being removed from Iraq to Iran.
101. I have found above that the applicant is a National of Iraq. I have found that he is not stateless as claimed. I therefore do not accept that he departed Iran illegally at any time. nor do I accept that he would be persecuted as a Faili Kurd in Iran –because I do not accept that he would be returned there. I therefore do not accept that there is any real chance or real risk of him suffering harm as claimed if he is returned to Iran (which he will not be for the reasons above).
102. I find on the information before me, and given the applicant has not put forward any claims to fear harm on return for any reason, that there is no real chance or real risk of the applicant suffering serious or significant harm if he is returned to Iraq now or in the reasonably foreseeable future. I find there is no real chance or real risk of him being returned to Iran, and therefore of him suffering serious or significant harm there. I find therefore that Australia does not have obligations to the applicant under international agreements that would be breached by his return to Iraq and I give this factor no weight in favour of the visa not being cancelled.

any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
103. I asked the applicant if there were any other relevant matters. He said that with the sanctions the United States of America has placed on Iran it has made his family life extremely difficult, he worked here and sent money to his family there. I accept that the applicant may have difficulty supporting his family in Iran if he is returned to Iraq. I give this some little weight in favour of the visa not being cancelled.
104. I have carefully weighed the information before me. On assessing the factors I am required to have regard to as well as those which are relevant in this case, I find that the factors in favour of cancelling the visa outweigh those against.
Conclusions
105. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
106. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Sean Baker
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.

[2019] AATA 6882

23 September 2019

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