1720862 (Refugee)

[2019] AATA 3424

1720862 (Refugee) [2019] AATA 3424 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720862

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Sean Baker

DATE OF ORAL DECISION:  6 June 2019

DATE OF WRITTEN STATEMENT:         14 June 2019

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 14 June 2019 at 3:46pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Nigeria – incorrect information – identity assessment – claim Nigerian passport fraudulently altered – assessment of passport does not verify legitimacy of document – no non-compliance – standard of proof in cases of cancellation must be high – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101-105, 107, 109, 438

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided or given incorrect answers in his protection application and the factors against cancellation did not outweigh those in favour of cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal gave its decision on the review at the conclusion of the hearing held on 6 June 2019. The following are the reasons for that decision. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from a number of friends and family of the applicant as set out below. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. 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.

   Certificate

8. On the Department file is a document that purports to be a certificate under s.438(1)(a). this certificate is invalid because it does not properly identify and characterise a public interest reason. It is well established that a reason must be particularised in order to identity the public interest reason. I therefore proceeded on the basis that the certificate was invalid. However, it was not necessary to provide a copy of the folios to the applicant and we discussed only the ‘gist’ of the information at hearing.

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

9. 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 summarised respects:

   a.That the applicant provided incorrect information that his name was [the Applicant], a citizen of Nigeria, because an identity assessment undertaken by the Department found that he was [Alias 1], a citizen of Guinea,

   b.that he had provided a false Nigerian passport and two genuine Guinean passports,

   c.that his date of birth was not correct, that he was not born in Ibadan Nigeria, and provided incorrect information when he claimed to fear harm on return to Nigeria, and his date of departure from Nigeria;

   d.meaning that the delegate considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 1, 7, 8, 19, 21, 42, 43, 44, 45, 46, 47, and 49 of the form 886C in his application for a visa. If the visa holder had failed to fill in his application form in such a way that no incorrect answers are given or provided his subclass XA-866 Protection visa may be cancelled under section 109 of the Migration Act 1958.

10. The basis for these conclusions was the Document Examination unit findings on the passports provided by the applicant, the responses from Post who checked the Guinean passports with Guinean authorities, and the Identity Assessment conducted by the Department’s National Identity Verification and Advice Team (NIVA).

11. The question is whether that non-compliance is made out.

12. Some history, both of the applicant and the proceedings, is useful here.

13. The applicant claims to be the son of a chief from the Yoruba tribe in Nigeria; that his parents were involved in politics and this led to his father and siblings being killed. At hearing he provided a brief but compelling description of these events.

14. The applicant moved first within Nigeria, but there were further attacks. He was separated from his family and was smuggled over the border and eventually to Guinea. It was in Guinea, he said, when he was provided with a Nigerian passport in his name. He did not know how this document was obtained. When he decided it would be too unsafe to travel on this document he obtained a Guinean passport. He said to me that to remove suspicion this document was stamped, but that he had not travelled to these other places.

15. He travelled to [Country 1] on the Guinean passport, and remained there for some time, and married. He told me that when he had to renew the Guinean passport, he had corresponded with his contact in Guinea who had sent him the further Guinean passport.

16. The applicant arrived in Australia and sought protection. As above, the Department undertook extensive investigations into the identity of the applicant. Prior to the conclusion of the identity assessment by NIVA, the delegate refused the application, based to a significant degree on the referral of both Guinean passports to the Departmental Document Examination Unit (DEU) which found they were legitimately manufactured documents issued in the expected manner with no fraudulent alterations. They were referred to Post and the Guinean authorities verified them as genuinely issued passports. The Nigerian passport was also referred to the DEU which found that the document was a legitimately manufactured document that has been fraudulently altered. The Nigerian certificate of birth was found not to have security characteristic expected in secure documents. The applicant’s application for protection was refused.

17. The matter then came to the Tribunal, differently constituted. That Tribunal undertook a thorough review of the case, focusing on the applicant’s identity. The Tribunal sought further information from NIVA, and also considered the language ability of the applicant. That Tribunal, after a detailed and complete process, remitted the decision for reconsideration. That Tribunal accepted the applicant was who he claimed to be and was a national of Nigeria, in part because he had given a coherent and consistent account of his past and acquiring the passports. That Tribunal also noted that the applicant speaks Yoruba, a language native to Nigeria but not to Guinea. The Tribunal remitted the matter to the Department by decision dated 2 October 2012.

18. On 25 October 2012 NIVA finalised an Identity Assessment. On 12 July 2013 a decision was made to grant the applicant a permanent protection visa.

19. On 2 December 2016, the department sent the applicant a Notice of Intention to Cancel (NOICC) letter. The grounds for cancellation were those set out above, and were based on the Document Examination unit findings on the passports provided by the applicant, the responses from Post who checked the Guinean passports with Guinean authorities, and the Identity Assessment conducted by the Identity Assessment Unit of the Department. Importantly all of that information other than the identity assessment was before the delegate considering grant of the protection visa and the previous Tribunal, and all of that information was before the delegate who granted the protection visa in July 2013.

20. In the cancellation decision the delegate acknowledges that the passports and the applicant’s claims were investigated by the previous Tribunal and that

    Although there were aspects of his story that they found incredulous, the Tribunal decided that [the Applicant] was found to be a person who was owed protection under the Refugees Convention based on imputed political opinion and the application was remitted to the Department on 3 October 2012 for further processing.

21. The cancellation decision goes on to note that the Identity Assessment was finalised on 25 October 2012 by NIVA, concluding the applicant was [Alias 1] and a National of Guinea. The cancellation decision goes on to rely on the NIVA assessment to find the applicant not to be [the Applicant] and a Nigerian national but [Alias 1]. The delegate went on to assess the response from the applicant to the NOICC, and the documents provided, including

    ·A submission from the agent

    ·Letter from [an official] of [a Nigerian association] of [State 1]

    ·Email confirmation addressed to the visa holder regarding his application for an Australian Federal Police check

    ·Two letters of employment from [organisations] which certify that the visa holder has worked for their organisations [in an occupation]

    ·Statutory Declaration from the visa holder dated 21 December 2016

    ·Statutory Declaration from the visa holder’s partner dated 21 December 2016

    ·A copy of a Nigerian passport application payment slip dated [in] 2016

    ·A copy of all pages of the visa holder’s current Nigerian passport issued to him [in] 2016

    ·An Australian Federal Police (AFP) certificate in the name of [the Applicant] issued [in] December 2016

    ·Scanned copy of a West African Senior School certificate in the name of [the Applicant] dated [date]

    ·Scanned copy of a letter from the principal of [the] Senior High School dated [December] 2016 stating that [the Applicant] sat his exam in [date] and attained the listed grades.

    ·Scanned copy of a Senior Secondary School Leaving certificate dated [date] in the name of [the Applicant].

    ·Scanned copy of results of the above Senior Secondary Leaving year dated [date] in the name of [the Applicant].

    ·Copy of [qualifications] both completed by the visa holder in 2012 and 2014 respectively.

    ·Copy of a birth certificate of the visa holder’s Australian citizen child born on [date]

    ·Copy of the passport of the visa holder’s Australian citizen partner [Ms A]

22. The 2016 Nigerian passport was examined by the Department’s DEU section which undertook an assessment of the document on 31 January 2017 and concluded that it is “a legitimately manufactured document, issued in the expected manner with no fraudulent alteration”. The examiner further stated that “the opinion is based on the manufacture and construction of the document and does not verify the legitimacy of the issuance or the information contained within the document”.

23. The delegate went on to state that in their belief the newly issued Nigerian passport is a genuine passport obtained illegitimately, and that the school documents belong to another person.

24. The delegate then goes on to make some sweeping statements about language groups in Western Africa on the basis of one Nigerian Newspaper report and to conclude that because Yoruba is part of a wider language group that includes Fulani, and as Fulani is similar to some languages spoken in Guinea, therefore:

    While this does not suggest that the visa holder is not proficient in Yoruba it is possible that given the family relationship of these languages that he also has knowledge of one or more of these languages spoken in northern Guinea which relates closely to Yoruba (e.g., such as Spanish and Italian) and given the similarities of these languages a person would not have difficulty in learning a related language.

25. The delegate concludes that the new information does not confirm that he is [the Applicant] and they were satisfied that the visa holder’s true identity as [Alias 1] of Guinea.

26. I have been provided with a copy of the decision of the Department. I was also provided with:

    ·A submission from the applicant’s representative

    ·Statutory declarations of the applicant and his partner dated 28 May 2019

    ·Correspondence between the Department and representative

    ·Photographs of the applicant with his family, with Nigerian friends and from his WBFF competing

    ·The birth certificate of the applicant and [Ms A]’s second child, [name deleted]

    ·Documents in relation to the applicant’s employment

    ·DNA testing results showing that there is a 99.99% probability that the applicant is [Child 1’s] father

    ·A DNA ethnicity estimate showing that his ethnicity estimate to be [information deleted].

27. At hearing the applicant presented his 2016 Nigerian passport.

28. The applicant gave evidence at the hearing which I found entirely compelling and believable. He has provided coherent explanations for the concerns with his identity raised by the Department and in particular in the NIVA examination. But more than this, he has backed up these claims with copious evidence of his Yoruba ethnicity and Nigerian citizenship, including providing well credentialed and credible witnesses to attest to these matters.

29. As above, the applicant described the circumstances of his relocation within Nigeria and then departure and arrival in Guinea. Whilst brief, I found his evidence straightforward and compelling.

30. The applicant says that he was provided by friends and their contacts with a ‘false’ Nigerian passport in his name. He says that this was provided to him in order to travel but that he realised that it might be unsafe for him to travel on this passport. He then acquired the Guinean passport. He says that this was arranged through friends and contacts. He also says that to make the passport more realistic, it was stamped with a number of entry and exit stamps, and he confirmed he had not travelled to these places, but only onwards to [Country 1].

31. He entered [Country 1] on the Guinean passport as he was afraid of being identified on the Nigerian passport. He held a visa in [Country 1] and when his Guinean passport was close to expiry he acquired a further Guinean passport from the same contacts.

32. These claims appear to have been made consistently by the applicant. They are not inherently implausible – the DFAT country report for Nigeria indicates that there are high rates of document fraud and that fraudulent and genuinely issued but fraudulent passports can be obtained.[1] It is well established that ‘genuine’ Guinean, biometric passports are frequently sold to persons not entitled to them, with one report of statistics provided by Guinean police officers that 20 to 30% of Guinean biometric passports were sold to non-Guinean Africans.[2] The United States Department of State notes that corruption is endemic at all levels of government, officials often engaged in corrupt practices and in security forces, including police, corruption was endemic.[3]

    [1] DFAT Country Information Report Nigeria (9 March 2018)

    [2] Canada: Immigration and Refugee Board of Canada, Guinea: Passports and identity cards, including format; requirements and process for obtaining a passport and an identity card, both in the country and abroad; shortage of passports and identity cards (2014-September 2017), 2 October 2017,  GIN105988.FE, available at: US Department of State, 2018 Country Reports on Human Rights Practices: Guinea, 13 March 2019,

33. I understand that Guinean authorities confirmed the passports were genuinely issued, but my reading of the country information is that such ‘genuinely issued’ passports may be issued in the expected way, but improperly obtained, and I am not convinced that the response from Guinean officials is determinative of the applicant’s Guinean nationality.

34. Having carefully considered the information from the Document Examination Unit in relation to the Guinean and Nigerian passports, and the response from the Guinean authorities, I am not convinced that they establish, or do anything more than create a concern, that the applicant has been untruthful and that he is a Guinean citizen and not a Nigerian citizen, and that his claims for protection are untrue.

35. I turn to the NIVA assessment report. It appears that considerable efforts were made to verify the applicant’s identity. However, many of the avenues of inquiry did not bear fruit. It is also unclear why the officer is so certain that the applicant’s claimed brother (no DOB known) is the same person as someone of the same name who the applicant had some financial transactions with who is located in [Country 2], particularly as the applicant did not recognise this person when shown a photo. At hearing the applicant said that he purchased Nigerian traditional dress from ebay from places including [Country 2]. It appears to me that it is possible that this person was someone who the applicant did business with who may have had the same name as the applicant’s brother. The identity assessment also appears to place weight on the inability of the applicant to recognise landmarks near his claimed home area of Lagos, including [a certain building]. I have been unable to determine whether the [building] had been built before the applicant left Lagos, and I note that this and the other landmark photos on the file are of low-resolution images which may make recognition difficult. I note that despite this, the applicant was able to recognise the school that he claimed to have attended in Lagos, and according to the assessment ‘his description of this school was also reasonably accurate.’ There is concern in the report that names are misspelt or misplaced in records including his birth certificate and his school documents, but I note also that the country information supports a view that record keeping in Nigeria may be poor. I do not think that the applicant’s success or otherwise at a subject in his schooling is indicative of his ability to speak Yoruba, nor that he does not love mathematics and physics. Under the heading ‘identity confirmation’, the assessment lists out the previous conclusions of the DEU on the passports and the passport verification with the Guinean authorities.

36. With the greatest respect to the officer who undertook the NIVA assessment, I do not accept that anything in that assessment takes the situation beyond a concern, and I certainly do not accept that the assessment establishes with any level of certainty that the applicant is Guinean.

1. I consider that none of the information I have before me establishes with any level of certainty that the applicant is a Guinean. I accept that there are some irregularities in the applicant’s claims, and that his provision of Guinean and Nigerian passports creates a suspicion or concern that he has not been truthful about his identity and/or nationality, but that is all. I note that the decision makers appear to have focused on the ability to obtain a fraudulent Nigerian passport, whilst not acknowledging or allowing for the established ability to acquire a legitimately issued but fraudulently obtained Guinean passport.

2. The cancellation delegate had before them information which was not considered by the NIVA assessment, including the applicant’s 2016 Nigerian passport issued in Canberra, and the statements supporting the fact that the applicant is a speaker of Yoruba.

3. As above, the delegate dismissed this information. I do not find the reasoning, set out above, compelling. The delegate did not explain why they considered the Nigerian passport to be a genuine passport obtained illegitimately, or how the applicant arranged this through the Nigerian High Commission in Australia. Whilst the information about document fraud in Nigeria itself, from the DFAT report above is well supported, I am less convinced that such fraud could be perpetrated in an Australian High Commission.

4. But even more convincing, I find, is the evidence, accepted by all decision makers as far as I can see, that the applicant is a speaker of the Yoruba language. This language is spoken primarily, but not exclusively, in the West of Nigeria. It is also spoken in Benin and Togo,[4] and possibly by diaspora in other parts of Africa and the wider world. The languages most closely related, the Igala and Itsekiri languages, are spoken only in Nigeria.[5] It is simply incorrect to claim that the language grouping of which Yoruba is a part also encompasses languages spoken in Guinea. Rather, the Benue-Congo language grouping stretches from the Benin-Nigeria border across Nigeria and Cameroon through central Africa to eastern Africa, rather than West into the rest of Western Africa.[6] The argument of the delegate that the applicant may speak other related languages as a national of Guinea appears to have no foundation, and conversely the applicant’s accepted speaking of Yoruba appears to strongly suggest that he is from Western Nigeria.

   [4]

   [5]

5. The applicant has provided, to the Department and to me, confirmation from Australians of Nigerian background that he is a national of Nigeria and a native Yoruba speaker.

6. At the hearing I had the benefit of speaking with [a] former [official] of [a Nigerian association] of [State 1] and the current [official] of the [committee] of the Nigerian [association] of [State 1], who has previously provided a letter to the Department. He said that the applicant is Nigerian as they spoke together in Yoruba, that he was certain the applicant came from where he claimed to because of his dialect, and that he had spoken with him about his life in Nigeria. He also spoke of the many positives that the applicant brought to the community and his family.

7. I had the benefit of speaking with [Mr C], the Former [member] of [an] Association of [State 1]. He spoke compellingly of his background as a Yoruba from Nigeria, his understanding of the regional dialects of Yoruba, that he was certain the applicant was from the West of Nigeria, and that he would be able to tell if the applicant had moved to Nigeria at a later stage or lived somewhere else, based on how he spoke the language, and confirmed the information above that the language groupings in Guinea were not the same as those in the Benue-Congo grouping and that there were no Yoruba settlements in Guinea that he knew of. He explained that the applicant wanted his children to be embedded in the culture and they should not be separated from him for this reason as well.

8. I spoke with [Mr D], the applicant’s best friend and originally from Nigeria. He described approaching the applicant at a [a location] and speaking to him in Yoruba because he believed he was from West Africa, and they started to speak to each other in Yoruba. Their friendship developed and now they are very close, they speak Yoruba all the time. The applicant has tried to teach [Mr D’s] [child] to speak Yoruba and sing Yoruba songs with [the child]. He said that the applicant cooks Nigerian dishes including Moi Moi, which [Mr D] is not so skilled at preparing. He said that he could easily identify if someone were not a native Yoruba speaker or from a different state or area. He spoke of how the applicant, his partner and their children had become part of his family and that the applicant had been a supportive member of the Nigerian community. He detailed the many ways in which the applicant is a good father to his children and a good partner to [Ms A].

9. I found the witnesses to be highly credible and compelling in their evidence. I accept that evidence unreservedly. If I had any doubts, which I do not, I can see no basis on which these persons would misrepresent the applicant’s ability to speak Yoruba or their interactions with him.

10. I consider that information on the ability of a person to speak a language with a reasonably well defined geographic reach, such as Yoruba, can be highly persuasive of a claim to come from that area. I would urge the Department to investigate such inquiries, which may save considerable time and expense such as in this case. The evidence, I find, that the applicant is a native Yoruba speaker, a former resident of west Nigeria, and a Nigerian citizen is compelling on the basis of his ability to speak Yoruba, to be recognised by Nigerian Australians as a native speaker of Yoruba and identified by them to have been resident in West Nigeria. 

11. I accept the applicant is a native Yoruba speaker. I accept that he lived in Lagos, Western Nigeria. I accept that he is a national of Nigeria, and of no other country. I accept that he is [the Applicant] and that [Alias 1] is an alias. Having made these findings there is no basis on which to doubt his claims for protection.

12. On the evidence before me, I find that the applicant is a national of Nigeria, born in Ibadan, on [date] and that he is not a national of Guinea or any other country, and that he is who he claims to be and that there is no basis to disbelieve his claims for protection.

13. I find therefore that the applicant has not given or provided incorrect answers in his application for protection or any associated documents.

14. For these 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.

15. At the hearing many members of the applicant’s family appeared to give evidence which would support the discretion not to cancel the visa being exercised in his favour. For the reasons above, this does not arise. However, I would not be doing justice to their determination and feelings towards the applicant not to provide some sense of their evidence at the hearing.

16. All witnesses spoke of the applicant’s very good character, that he was a caring and wonderful father to his children, a loving and supportive partner of [Ms A] and balanced her, and a supportive and caring member of their family. [One person] spoke of his respectful and beautiful nature and that she saw him as her son. [A second person] said that the applicant was a member of their family and he has seen nothing but a fine human being and a great dad who deserved to be here and a credit to himself and his community. [A third person] said that the applicant was a big brother to her and a perfect match for her sister, he was calm and caring and patient and is a perfect father, especially to [Child 1], it would be silly if he were not here with them. [A fourth person] said she could not imagine [Ms A] without the applicant, they are a beautiful couple and the world needs more people like him. [A fifth person] spoke of the applicant being an essential part of their family  and said that [Ms A’s] [siblings] needed a good person such as the applicant to look to in the family. The applicant’s partner, [Ms A], spoke movingly of their relationship, of her father having passed away recently and the applicant having supported her through this. He is a wonderful father. She wishes their life could now be free of this process for them to move on.

17. All of the witnesses acknowledged the good character of the applicant and from what I have seen I consider this entirely justified. All of them acknowledged his good and loving relationship with his partner and children. Again, from everything I have seen this is entirely justified. The evidence also shows he is a contributor to the Nigerian-Australian community, the Australian community more generally, and the weightlifting community. The evidence indicates that the applicant has excelled at his work and in his [other] pursuits. I note [Mr C’s] statement that the Nigerian association] are advocating for better Africans in Australia because of the negativity, and that the applicant is a good Nigerian and Yoruba person who will add more to the [association] and the positive image of African Australians. From everything before me, I agree.

18. Were the case not decided as above, there would be strong grounds against the visa being cancelled because of the applicant’s contributions to the Australian community, his family and his work, as well as very strong grounds under international instruments which set out Australia’s obligations to consider family unity, the right of children to know their parents and heritage, and the best interests of the child. Given my findings above, it is not necessary for me to make determinative findings on these matters.

19. Two further matters. The most recent submission argues that the 2017 cancellation decision undermines the principle of finality and thus is not lawful. I do not agree that the decision of the delegate was unlawful – the powers under Subdivision C of Division 3 of the Act are wide and far-reaching. But for this very reason, such powers must be exercised by delegates carefully and in a considered way. I note the potential serious effects of the cancellation of a protection visa. I would implore decision makers to think carefully in cases such as this about the information both for and against their hypothesis before they proceed to cancel. I understand the concerns in this case, but as above, I do not believe they rise any higher than a concern, and in the end I consider they are outweighed by the information before the delegate that tended to suggest the reverse, and I have now been provided with further evidence. The standard of proof in cases of cancellation must necessarily be high.

20. A related concern is that the applicant does not appear to have been provided with, either in whole or in redacted form, the NIVA assessment. Given that this is the majority of the basis for the cancellation decision, this is of some concern. Given the seriousness of a cancellation of a protection visa, I would urge the Department to consider making such critical documents, even in a redacted form, available to cancellees and their representatives.

    Conclusions

21. 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

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