1726514 (Refugee)

[2020] AATA 2429

1726514 (Refugee) [2020] AATA 2429 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726514

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:3 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 03 March 2020 at 4:30pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – Federal Circuit Court remittal – incorrect information in visa application – religion – Sunni Muslim – fear of harm from Shia militia – particular social group – music sellers – music shop owners – brother killed by unknown persons – voluntary return three times, the first soon after being granted protection visa – family moving and mother’s and son’s health – no harm to family or to applicant on return – credibility – inconsistent information and unpersuasive explanations – country information on status of Sunnis – general security conditions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 101, 107, 109, 375A, 424A, 438

Migration Regulations 1994 (Cth), r 2.41; Schedule 8, Visa Condition 8559

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

McDonald v D-G of Social Security (1984) 1 FCR 354

MIEA v Wu Shan Liang (1996) 185 CLR 259

Nagalingam v MILGEA (1992) 38 FCR 191

Sullivan v CASA (2014) 226 FCR 555

Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291

Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Background

2. The applicant is a [age]-year-old national of Iraq. He arrived in Australia [in] December 2011 as an Irregular Maritime Arrival (IMA). On 13 March 2012, he made a request for a Protection Obligations Determination (POD) and, subsequently, a delegate of the Minister found that he is a person to whom Australia has protection obligations. On 12 July 2012, the applicant lodged a protection visa application and on 23 July 2012 he was granted the visa.

3. On 31 January 2017, a delegate of the Minister cancelled the applicant’s protection visa under s.109 of the Act, on the basis that the applicant had provided incorrect information in connection with his application for a protection visa.

4. The applicant applied for a review of the delegate’s decision. On 29 May 2017, a differently constituted Tribunal (the first Tribunal) affirmed the Delegate’s decision to cancel the applicant’s Protection visa.

5. The applicant appealed the decision to the Federal Circuit Court of Australia. [In] October 2017 the Court remitted the matter to the Tribunal by consent to be determined according to law. The matter is now before the currently constituted Tribunal (the Tribunal) for reconsideration.

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Protection visa application

   The Department

7. In his Protection visa application Form 866, the applicant referred to a statutory declaration, dated 13 March 2012, which was previously submitted to the Department in relation to his request for POD. In his statutory declaration, the applicant stated the following:

   Background:

   My name is [applicant name] and I am a [age] year old male born in [Location 1], Iraq. My ethnicity is Arabic and my religion is Sunni Muslim.

   I am currently married with [number] children. I have [number] boys and [number] girls. They are all still young and live at home with their mother. The home address is [Location 1], Al-Basra in Iraq.

   Why I left my country:

   As a Sunni religion group we are the minority in the south and we have no rights.

   I am the owner of a shop that sells cassette disks and we have been harassed many times and my brother was killed due to this reason. On [date] January 2011, four people came into our store and told us they from El-Sayed group and one of these men was constantly telling me that I should not be selling the cassette disks as it was un-Muslim like to do this. I explained to him that this was my hobby. He kept arguing and pushed both my brother and myself shouting at us that he would kill us as we are moving away from the Muslim religion. They eventually left taking the original licence from my shop. My brother and I were scared because of these threats and we went back to my place but we were very worried. We never opened the shop again.

   At home I told my father and he asked for the description of these men and he said that my life may be in danger as they had forced my address out of me. My father advised us to go to our uncles where we may be able try to sort this out. My brother objected but I went on my own. It was winter and I got very sick during my stay there. On [date] January my brother went out for a walk but he never returned home. He was killed, one shot in [Body Part 1] and two shots in [Body Part 2]. His death certificate states he died on [date] January 2011. The police found my brother's body and took it to the hospital and then went and got my father and took him to the police station first and then to the hospital.

   In May a group of people came to my father's place and told him that they wanted me to go to the sheik's place. My father contacted me and told me to stay away as they were looking for me. They returned in August and asked about me again, when my father refused to give information about me they slapped him and called him a liar. My father told me not to come back as these people wanted to find me and kill me.

   Eventually I talked to a friend of my uncle's as he knew a smuggler that could help me. I called the number all of the time and he advised me I could come to him whenever I was ready and we eventually agreed on a price of US$[Amount]. I started to get enough money, my passport and paperwork ready. Unfortunately I also had to sell some of my wife's jewellery to afford this price.

   We Sunni have always been bullied by the Shia as we are weak and a minority.

   What I fear might happen if I go back to my country:

   I fear that I will be killed by those same men that came to the shop. They have threatened me and killed my brother for the same reason so I fear that I cannot return.

   Who I think will harm or mistreat me if I go back:

   These people are from El-Sayed political party and these are the people that I fear will harm and kill me if I go back

   Why I believe they will harm or mistreat me if I go back:

   They have told me that I am moving away from being Muslim and that if I didn't stop they would kill me. After closing the shop they killed my brother anyway, so they will definitely kill me.

   Why I believe that the authorities in my country will not protect me if I go back:

   Because I am Sunni and have no rights and we are not represented in the political circles. Also the El-Sayed is connected to the authorities and they are the ones that are persecuting me.

   Other matters that I would like the Department to take into account:

   They have already killed my brother for the same reasons.

   The cancellation

   The notice

   On 14 December 2016, the applicant was issued with a Notice to Consider Cancellation (NOICC) of his protection visa, on the basis of non-compliance with s.101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 41, 43, 44 and 48 of Form 866C as he had voluntarily returned to Iraq on the following three separate occasions:

   ·     Between [November] 2012 and [February] 2013

   ·     Between [March] 2014 and [April] 2014

   ·     Between [March] 2015 and [May] 2015

8. In addition, prior to travelling to Iraq on the third occasion, he did not raise any concern regarding his return to Iraq when interviewed by Australian Border Force (ABF) officers. When he returned to Australia, he was again interviewed by ABF officers and stated that, during his stay in Iraq, he had spent his entire time at his parent’s house in Basra.

9. The NOICC stated that the applicant’s return to Iraq only five months after being granted a Protection visa, as well as his subsequent travels to Iraq without apparent issue demonstrate that he has no fear of being killed or for his personal safety. It was stated that, based on this information, the applicant does not hold the claimed adverse profile at the time of his protection visa application.

10. It was further stated that, in his protection visa application, the applicant had claimed that he was threatened by members of the El-Sayed political party, who are connected with the authorities. The NOICC stated that upon his return to Iraq, the applicant entered and exited the country via official means and engaged with the authorities. The applicant’s repeated return to Iraq and interaction with Iraqi authorities demonstrate that he did not hold the claimed adverse profile.

    The applicant’s response

11. On 3 January 2017, the applicant’s representative responded to the NOICC and provided the following information:

12. The applicant travelled to Iraq between [November] 2012 and [February] 2013 because his wife and children had relocated to [Location 2] of Basra, after the applicant’s son was approached by strangers who questioned him about the applicant. He returned to spend time with his wife and children, who were anxious and feared that people would target them in this new area. He and his family stayed at his maternal aunt’s house and he avoided going out so that militia groups would not find him. Upon his return to Australia, the applicant tried to arrange for his family to go to [Country 1], but could not do so due to financial hardship.

13. The applicant travelled again to [Location 2] in Iraq between [March] 2014 and [April] 2014 to visit his mother who was very ill. His mother’s life was at risk at that time, having had several cardiac operations, and he had no other option but to go and see her.

14. With regards to his third trip, the applicant travelled to Iraq between [March] 2015 and [May] 2015 because his son, [Master A], was sick and undergoing medical treatment in hospital. The applicant was obliged to go and support his child, especially as he has [number] children and his wife was confused about what to do.

15. In addition, the response stated that the applicant had originally booked trips of longer duration to Iraq, but he had to cut his trips short on the second and third occasions due to his fear and anxiety about being detected by Shi'a militias in the south. It was stated that the applicant still fears for his safety in Iraq because militia members had killed his brother and caused the applicant to flee the country. It was submitted that the UNHCR guidelines distinguish between returning to the home country to visit sick parents, as opposed to going on holidays. The fact that the applicant had returned to Iraq for very compelling reasons connected to his family does not mean that his fear of persecution is not genuine.  It was submitted that the applicant still engages Australia’s protection obligations as he still fears returning to Iraq due to his religious beliefs and having sold music and DVDs in the past.

16. The following documents were submitted in support of the response:

    ·Copy and translation of a document titled ‘Admission and Discharge from hospital’, dated [April] 2014, issued by [Hospital 1] in relation to the applicant’s mother, [Ms B].

    ·Copy and translation of a medical report in relation to the applicant’s son, [Master A], dated [March] 2015, issued by [Hospital 1].  

    ITOA

17. On 3 January 2017, following an International Treaties Obligations Assessment (ITOA) in relation to the applicant, a delegate of the Minister found that Australia does not owe him non-refoulement obligations.

    The delegate’s decision

18. On 31 January 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa on the basis that he had provided incorrect information in connection with his application for a protection visa on the basis of his travels to Iraq.

    Application for review

19. The applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent, [Mr C]. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.

    The first Tribunal

20. The applicant appeared before the first Tribunal on 30 March 2017 (the first hearing) and provided oral evidence with the assistance of an interpreter in the Arabic language. [Mr C] was present at the hearing.

    [Mr C] submitted the following country information at the first hearing.

    ·     An article published by Iraqi News. The date, 1 February 2017, and titled ‘Attack on Music Store’ were handwritten on the front page.

    ·     An article published by The Independent Online, dated 9 January 2016 and titled ‘Iraq: Crimes soars in Basra as army leaves to fight ISIS’.

    ·     A report published by the United States Department of State Bureau of Diplomatic Security (OSAC) titled ‘Iraq 2016 Crime and Safety Report: Basrah’, dated 31 October 2016. The report provides general information in relation to crime and safety in Iraq, including political, economic, religious, and ethnic violence.

    ·     An article published online by PJ Media, titled ‘Shiite protesters supporting Muqtada al-Sadr storm Baghdad’s Green zone, occupy Parliament building’, dated 2 May 2016.

21. On 29 May 2017, the first Tribunal affirmed the delegate’s decision to cancel the applicant’s Protection visa.

    The Federal Circuit Court

22. The applicant sought judicial review of the first Tribunal's decisions and, [in] October 2017, the Federal Circuit Court remitted the matter to the Tribunal by consent on the basis that the existence of a certificate purportedly issued by a delegate of the Minister under s.375A of the Act was not disclosed to the applicant in the course of the review by the first Tribunal; and at least some of the information covered by the certificate was relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

    The present Tribunal

23. On 4 September 2019, [Mr C] made a submission to the Tribunal, stating that Condition 8559 does not apply to this case as the applicant was granted a visa prior to 3 June 2013. However, the condition contemplates that people can return to their home countries for very compelling reasons. It was stated that this is useful in considering whether the fact of the applicant’s return to Iraq is compatible with his claim to have feared being killed or persecuted in Iraq.

24. [Mr C] stated that the applicant’s return to Iraq at a later stage does not mean that he provided incorrect information in his application for protection, that the events he described in Iraq are untrue or that he did not have a subjective fear when he applied for refugee status. The applicant’s subjective fear of harm when he applied for refugee status is supported by country information and the applicant’s own evidence.

25. It was submitted that the applicant took steps to minimise his chances of being harmed during his trips to Iraq as he stayed away from his home area and was very discreet during his visits. Asylum seekers should not be expected to live in hiding to minimise the chance of harm to them.

26. Furthermore, the applicant had returned to Iraq for very compelling reasons. An applicant’s return to Iraq is not an indicator that he does not have the profile he claimed to have. Referencing the UNHCR Handbook, [Mr C] submitted that it is ‘human nature’ for people to risk their lives to travel back to a country to visit and care for family members, but this does not mean that they will be safe if they settle back in that country.

27. Finally, the submission provided information about the applicant and his family. It was stated that the applicant is [an Occupation 1] in Australia. His sister and her children were recently granted Australian citizenship and both his parents have passed away recently.

    The hearing

28. The applicant appeared before the Tribunal on 16 October 2019 to give evidence and present arguments (the second hearing). The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence at the second hearing is referred to in the Tribunal's reasons below.

    Information provided following the hearing

29. On 17 October 2019, the Tribunal wrote to the applicant under s.424A of the Act and invited him to comment on or respond to certain information.

30. On 23 October 2019, [Mr C] responded to the Tribunal's invitation on behalf of the applicant. He also submitted a number of payslips as evidence of the applicant’s employment in Australia.

    The Certificate

31. The Department’s file relating to the cancellation of the applicant’s protection visa contains two non-disclosure certificates. The first was issued on 13 February 2017 under s.375A of the Act, relating to folios 29 to 32 of the file. The folios covered internal emails sent between officers of the Department in relation to persons related to the applicant. The reason stated in the certificate was that the disclosure of the information in the folios would be contrary to public interest because they contain information regarding the cancellation referral which evidences government investigation methods and evidences detailed personal identifiers of people other than the applicant.

32. On 27 November 2017, the non-disclosure certificate of February 2017 was revoked by the Department and a new non-disclosure certificate was issued under s.438(1)(a) of the Act. The new non-disclosure certificate covers the same folio numbers (29 to 32) as the previous certificate dated 13 February 2017. However, the stated reason for non-disclosure was: ‘the disclosure of this information would be contrary to the public interest because folios 29-32 contain documents or information that relate to third parties and is not specifically relevant to the reasons for visa cancellation.’

33. After considering the contents of the folios identified, the Tribunal formed the view that the reason provided sufficient basis for public interest immunity and that the certificate was valid. The Tribunal explained to the applicant at the second hearing that it considered the certificate to be valid. The Tribunal also explained to the applicant that the particulars of the information covered by the certificate are relevant to the issues under consideration in the matter under review. The Tribunal also put to the applicant the gist of the information. This information was also put to the applicant in the Tribunal's s.424A letter for his comment or response.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

34. 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.

35. 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.

1. 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.

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

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

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

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

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

4. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

   The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

   [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

   [4] At [120].

5. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[6]

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

   [6] Ibid, at [122].

6. 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.

7. For the reasons outlined below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

   The applicant’s return trips to Iraq

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

9. As already noted, the applicant arrived in Australia [in] December 2011 and he was granted a protection visa on 23 July 2012. In the statutory declaration accompanying his application for a protection visa, he had claimed to fear being killed by the same men who had come to his music shop, had threatened him and had killed his brother.

10. [In] November 2012, approximately four months after being granted his protection visa, the applicant returned to Iraq, where he remained for approximately three months. He travelled to Iraq again in March 2014 and March 2015, staying four weeks and six weeks respectively. In his response to the Department’s NOICC, as well as in his evidence in the course of the review, the applicant offered a number of the explanations for his travels to Iraq. For the following reasons the Tribunal found the applicant’s explanations problematic and unpersuasive.

11. In his response to the NOICC, he stated that he had travelled to Iraq in November 2012 after being informed by his wife that their son had been approached by a stranger and questioned about the applicant. Subsequently, his wife and children had moved from Basra to [Location 2]. Before the first Tribunal, he also stated that he had been told by his wife in September 2012 that their son had been approached by a man who asked him who and where his father was.  His wife was concerned and she thought this person may have been from El-Sayed. She then spoke to the applicant’s brother, [Mr D], who spoke to his maternal aunt and managed to move the applicant’s family to one of her residences outside of Basra. The applicant was concerned because the residence has no electricity or water and so he went to Iraq. At the second hearing, the applicant essentially reiterated the same explanation for the trip, stating that his son, [Master A], was approached by a stranger who asked about the applicant. When his son was approached a second time, his wife called him and she was crying and upset. She was worried about her children and she kept calling and crying, wanting to find a solution. He called his brother to arrange for his family to go to his aunt’s house. He returned to Iraq because he was worried about his children.

12. The applicant has repeatedly characterised the reason for his return to Iraq in November 2012 as ‘very compelling’. The Tribunal, however, is not persuaded that the circumstances described by the applicant were very compelling or that he had felt compelled to put his life at risk to return to Iraq. First, as it was put to the applicant at the second hearing, unknown persons questioning his son as to his whereabouts could be reasonably construed as a clear indication that he was still being pursued and his safety was at risk. These people did not harm his son or any other member of his family. As it was put to the applicant, in view of the nature of his claims and the effort he had put into departing Iraq in the first place to seek protection in Australia, this incident, if accepted, did not appear to present compelling reasons for him to go back. Rather, there remained compelling reasons for him not to go back.

13. Furthermore, the applicant’s parents and his brother, [Mr D], as well as other siblings were all present in Iraq at that time. Indeed, the applicant or his wife had contacted the applicant’s brother to arrange for her to move to another location, which he had done so. According to his own evidence, by the time the applicant returned to Iraq in November 2012, the family had already moved into a self-contained home extension at his aunt’s house. The applicant gave evidence that the self-contained accommodation had no electricity or running water and he wanted to assist his family with water and electricity connection. He did not offer a persuasive explanation as to why other family members could not assist his wife with utility connections. When asked why this warranted putting his own life at risk in order to return to Iraq, he said he also wanted to check on his family and see them all. He was worried for his children and wanted to take them to [Country 1], but he could not afford it financially. In view of the applicant’s claims that he had left Iraq because he feared being killed or mistreated by those who had also killed his brother, the Tribunal finds it difficult to accept that the reasons he has provided had compelled him to return to Iraq and stay for three months.

14. The applicant returned to Iraq again [in] March 2014 and remained until [April] 2014. In his response to the NOICC, he stated that the purpose of his travel to Iraq was to visit his mother who was very ill. His mother’s life was at risk at that time, having had several cardiac operations, and he had no other option but to go and see her. It was stated that the applicant had spent ‘all this time in hiding.’ At the second hearing, however, the applicant told the Tribunal that he did not visit his mother at the hospital and remained at his aunt’s house. About 10 days after the operation, his mother was brought to his aunt’s house and he was able to see her. When asked why he had travelled to Iraq [in] March if he could not see his mother for another 20 days, he said when his brother told him that their mother had problems with her heart, he decided to go back. Again, in view of the applicant’s claims regarding the reasons why he had departed Iraq in the first place, the Tribunal finds it difficult to accept that the applicant had decided to return to Iraq without apparently giving any further thought to reasonable considerations, such as coordinating his trip to coincide with a timeframe that would enable him to see his mother, if that was the primary reason behind the trip. Whilst the Tribunal accepts that the applicant was concerned for the welfare of his mother, it does not accept the circumstances were so compelling that he  was compelled to return to Iraq.

15. In relation to his third trip [in] March 2015, the applicant stated in his response to the NOICC that his son, [Master A], was ill and undergoing medical treatment in hospital. He felt obliged to go and support his child, especially as he has [number] children and his wife was confused about what to do. At the first hearing, the applicant told the first Tribunal that his child was sick and needed an [operation]. He initially planned to stay in Iraq for three months but instead only remained in [Location 2] for one and a half months. When asked why he had to stay for a month and a half, given the operation would have been completed by the time he arrived in Iraq, he said he had to go to see his child. At the second hearing, the applicant essentially repeated the claim that his son was ill and suddenly needed an [operation]. He also told the Tribunal that his son was hospitalised at [Hospital 1]. The applicant was asked, if he could not be by his son’s side at [Hospital 1] or offer any immediate assistance in the period preceding the procedure, and in view of the fact that the procedure was a relatively simple one, why he decided to go back to Iraq. He responded that he wanted to ‘check’ on his son. Once again, whilst the Tribunal appreciates that the applicant was concerned about his son, he did not provide a persuasive explanation as to why, in view of the nature of the medical condition and the presence of other relatives, he had to return to Iraq and put his own life at risk to check on his son. The Tribunal considers the applicant’s decision to return to Iraq under the circumstances described to be inconsistent with the applicant’s claims to fear harm in Iraq.

16. In reaching this view, the Tribunal has considered the information put to the applicant in the NOICC regarding his responses to the Australian Border Force (ABF) officers at an airport interview conducted upon his return to Australia [in] May 2015. According to information contained in the Department’s file relating to the cancellation of his visa, the applicant told ABF officers that he had spent 55 days in Iraq and that the main purpose of his travel was to visit his parents. He further stated that he had spent the whole period at his parents’ house in Basra. This information is inconsistent with the applicant’s evidence that the purpose of his travel was to visit his son and that for the duration of his stay in Iraq he had remained in [Location 2]. When this was put to him at the second hearing, he explained that he had told the ABF officers that he was with his parents, but they did not ask him where he was with his parents. The interview was brief and they asked him many different questions. In his response to the Tribunal's s.424A letter, the applicant stated that, in the course of the interview, he was asked about his trip to Iraq and he advised that he was with his family in Iraq. He never stated that he was living in his parent’s house at that time. The applicant had been presented with a map of Basra and was asked whether he had stayed outside of Basra, to which he had replied ‘no.’ He had said that [Location 2] is part of Basra and never said he had stayed at his parents’ house the whole period, but rather he was with his parents and family in Basra, which does not mean that he had lived at his parent’s house. Having considered the applicant’s response, the Tribunal is prepared to accept that the applicant informing ABF that he had resided in Basra, without specifically referring to [Location 2], does not necessarily indicate that he had provided false information. However, the applicant did not offer a persuasive explanation as to why he had told ABF that the primary purpose of his travel to Iraq had been to visit his parents and that his son’s operation was another reason. The Tribunal does not accept that his response at the airport was ‘not conveyed properly’ by ABF officers. This information casts doubt on the reliability of the applicant’s evidence regarding the purpose of his visit to Iraq.

    Other matters

17. The credibility of the applicant’s explanations is further undermined by other problematic features of other information he had provided to the Department. 

18. Upon his arrival in Australia, the applicant completed a Biodata form with the assistance of an Arabic interpreter. In that form he was asked to provide details of his brothers and sisters. He stated in the form that he has four siblings: [Ms E], [Ms F], [Ms G] and [Mr D].

19. On 13 March 2012, the applicant completed a form in relation to his request for POD. In that form he was also asked to provide information in relation to his siblings. He stated in the form that he has four siblings: [Ms E], [Ms F], [Ms G] and [Mr D]. He also completed a ‘Personal particulars for character assessment form’ (Form 80). In that form he was again asked to provide information in relation to his siblings. He stated in the form that he has four siblings: [Ms E], [Ms F], [Ms G] and [Mr D]. He provided the same information in his application for a protection visa (Form 866B).

20. Information contained in the Department’s file relating to the cancellation of his visa indicates that the applicant has a sister by the name of [Ms H]. According to this information, his sister is married to [Mr I], who is the applicant’s wife’s brother. [Mr I] and his brothers, [Mr J] and [Mr K], are all in Australia.

21. At the first hearing, when the applicant was initially asked whether he has any relatives in Australia, by birth or by marriage, he said ‘I have like cousins, like second, third cousins… Some people they came 10 years ago, some people came 15 years ago.  You know, they are my second cousins.’ It was only after information about other family members was put to him that he mentioned his sister [Ms H] and his brother-in-law in Australia. He had told the first Tribunal that he had many relatives and was only concerned about himself and his children.

22. The applicant’s failure to disclose information in relation to his sister and other relatives in Australia was discussed with him at the second hearing. He responded that he did not know the rules and he was concerned that he would be required to provide documentation in relation to his sister and brother-in-law. At that time he had a dispute with his brother-in-law, who is also his paternal cousin, and he did not want to ask him or his sister for documentation. The applicant’s failure to provide information in relation to his sister, her husband and the husband’s brothers was put to the applicant in a s.424A letter. In his response, the applicant reiterated that ‘the omission was due to familial dispute’ between his father and his brother-in-law’s father. Therefore, he did not communicate with his brother-in-law’s family due to this dispute. His brother-in-law had arrived in Australia before he did and he was under the impression that the Department will ask him to provide ‘the details of his sister’s ID’s.’ As he would have been unable to provide such documentation to the Department, he did not mention his sister’s name in the relevant forms. The Tribunal finds this explanation unpersuasive and does not accept that he had failed to provide the relevant information because of the alleged ‘dispute’ or the applicant’s naivety or lack of education. The applicant’s failure to provide this information to the Department at the earliest opportunity and his lack of candour, raise significant concerns regarding his reliability and the credibility of his evidence.

23. Finally, the Tribunal found the applicant’s evidence in relation to the circumstances that led him to depart Iraq highly unpersuasive. The applicant had claimed that his fear of harm arose following an altercation he had with four Shi’a men, whom he described as members of El-Sayed group, at his music shop. The altercation involved a verbal argument, some pushing and shoving and damage to property. At the second hearing he stated that, after this incident, he and his brother closed the shop and did not go back. Following this incident, the applicant left his house in [Location 1], where he and his family, including his parents and his brother resided, and moved into his uncle’s house in [Location 3], a locality approximately three kilometres away. A few days later, [in] January 2011, his brother was killed in different locality called [Location 4]. It was put to the applicant that, according the evidence provided no one had witnessed his brother’s murder which had occurred at night time. He was asked why the murder was attributed to members of El-Sayed and not to anyone else given the prevalence of violence in Basra at that time. He replied that, in May 2011, some people went to his house in [Location 1] and told his father that his son (the applicant) should go and see the Sheikh. As it was put to him, it was odd that five months after the altercation and the murder of his brother these people had decided to go to his house asking about him. The applicant gave evidence that these people knew where his house was. His brother was killed because he did not go into hiding. When it was put to him that his brother had been killed in a different locality and not at his house, he said they could have followed his brother from the house. The applicant also gave evidence that during the nine months that he was residing a short distance away at his uncle’s house, another brother regularly brought his wife and children to visit him. As it was put to the applicant at the second hearing, if members of the El-Sayed group, who appeared to be well aware of his family’s residential address, had any adverse interest in him, they had ample opportunity to follow his wife and his brother to his uncle’s house nearby and locate him. The applicant then responded that his family did not visit him that often. It is not clear why these people who, according to the applicant, were intent on seriously harming him made no serious effort to locate him other than on the two occasions (May and August 2011) he claimed they visited his usual residence to ask his father as to his whereabouts. The Tribunal considers the applicant’s account of his circumstances in the months preceding his departure from Iraq to be unconvincing. Whilst the Tribunal is prepared to accept that the applicant’s brother might have been tragically killed, the Tribunal is not persuaded that he was killed by the unknown men the applicant claims he had an altercation with on one occasion in his shop. The Tribunal does not accept that the applicant was in hiding for nine months because he wanted to avoid the same people or that these people had an adverse interest in him prior to his departure from Iraq.

1. Having carefully considered the evidence before it, the Tribunal did not find the applicant to be a credible and truthful witness. The Tribunal accepts that the applicant had felt a desire to see members of his family, particularly in response to concerns for their safety or their health. However, the Tribunal does not accept that the circumstances described or the reasons provided by the applicant were so compelling that he had no choice but to return to Iraq on three separate occasions. The Tribunal finds the applicant’s explanations regarding his return trips to Iraq to be highly unpersuasive and disingenuous. The applicant returned to Iraq [in] November 2012, less than a year after he came to Australia and about four months after being granted a protection visa, and remained in Basra, albeit at a different locality, for a period of three months. He travelled to Iraq again on two occasions, remaining for approximately five and six weeks respectively. In the present case, the Tribunal considers the fact that the applicant returned to Iraq on three separate occasions for a total period of nearly six months logically supports the conclusion that he did not in fact fear being harmed or killed by members of the El-Sayed group in the statement accompanying his application for a protection visa.

2. Having considered the evidence before it, the Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa in relation to his fear of harm in Iraq. The Tribunal has reached the necessary state of satisfaction that the applicant provided incorrect information in response to Questions 41, 43, 44 and 48 of his application for a protection visa. 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?

3. 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). In exercising its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

   The correct information

4. The Tribunal considers that the correct information is that the applicant was not pursued by members of the El-Sayed group and that he did not fear being seriously harmed at the hands of members of this group or anyone else when he departed Iraq to come to Australia. He is not wanted by the group and does not fear harm by them for the reasons he has provided. The Tribunal gives this factor significant weight towards the visa being cancelled.

   The content of the genuine document (if any)

5. The s.107 notice did not refer to any bogus documents and the Tribunal has not identified any.

   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

6. The Tribunal is of the view that the information provided by the applicant to the Department was central to the grant of the protection visa. The Tribunal gives this factor significant weight towards the visa being cancelled.

   The circumstances in which the non-compliance occurred

7. The applicant has persistently maintained that he did not give incorrect information to the Department, so he has not provided any mitigating circumstances to explain why he has done so. The Tribunal gives this factor significant weight towards the visa being cancelled.

   The present circumstances of the visa holder

8. The applicant has given evidence that he has lived in Australia for a long time. He likes living here and he would like his children to come and join him. They are unable to do so due to the cancellation of his visa. The Tribunal accepts that he has found it difficult to be away from his children. However, the Tribunal has also considered the fact that the applicant has travelled to Iraq on three separate occasions following the grant of his protection visa to visit his family.

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

9. As noted above, the applicant has maintained that he did not give incorrect information to the Department in relation to his application for a protection visa.

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

10. On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this little weight towards the visa not being cancelled.

    The time that has elapsed since the non-compliance

11. The relevant non-compliance in the present case took place when the applicant presented written and oral evidence to the Department in relation to his claims for protection in 2012, so over seven years have elapsed since then. The Tribunal gives this little weight towards the visa not being cancelled. The Tribunal has already considered the applicant’s submissions in relation to the length of time he has been separated from his family.

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

12. On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.

    Any contribution made by the holder to the community

13. Evidence provided by the applicant suggests that he started working as [an Occupation 1] about three months after the first hearing. He has continued to be employed in the [Occupation 1] sector. No other information was provided in relation to any contribution made by him to the community.

    Other considerations

14. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[7] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[8] for example whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    [7] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).

    [8] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16) and PAM3: Act – Compliance and case resolution – Guiding principles – Treatment of children (issue date 1/1/12).

15. For the reasons outlined earlier, the Tribunal has found the applicant not to be a credible or reliable witness. The Tribunal considers that the applicant had provided incorrect information in his application for a protection visa and the accompanying statement. The Tribunal accepts that the applicant and his brother had a music shop in Basra. The Tribunal also accepts that, on one occasion in the course of the nine years he had owned the shop, he and his brother might have had an altercation with some men unknown to them, which culminated in verbal threats and some pushing and shoving.  The Tribunal, however, does not accept that these people had taken his business registration certificate and that as a result he could not reopen his shop. The does not accept that the applicant’s brother was killed by the same people and as a result of this incident. The Tribunal does not accept that anyone, including members of El-Sayed group had any adverse interest in the applicant following the incident or that he was in hiding for a period of nine months to avoid members of the group because of the altercation or for having sold music. The Tribunal does not accept that the applicant feared being killed at the hands of El-Sayed group or the Shi’a militias in Iraq for the reasons he provided in his application for a protection visa.

16. In his response to the Department’s NOICC, the applicant’s representative submitted that the applicant continues to fear harm in Iraq because he had sold music and DVDs and also for the reason of his Sunni religion. As already noted, the applicant’s shop was closed in 2011 and never opened again. According to his own evidence at the second hearing, his shop was not the only shop in Basra and there were other retailers selling music in the city.  The Tribunal has found no information in any of the sources consulted or any of the country information submitted by the applicant to suggest that persons who own or have owned music shops in Basra have been targeted by Shi’a militias, regardless of name or allegiance. The applicant’s representative submitted to the first Tribunal an undated report from Alghad news agency about a bombing of store in Basra.  He again submitted the same report following the second hearing.  According to the report, however, the store sold musical instruments. The report also appeared to attribute the bombing to the Islamic State, which had claimed responsibility for several attacks across Iraqi provinces at that time. The applicant’s representative also submitted a 2016 news report in relation to the rise in incidents of crime in Basra due to the army focussing on fighting ISIS and a 2016 US Bureau of Diplomatic Security report in relation to crime and safety in Basra. These reports do not suggest that the applicant would be at risk of harm in Basra because he had owned and operated a music store more than nine years ago. The Tribunal finds that there is no real chance or a real risk that the applicant would face serious or significant harm by the El-Sayed group, Shi’a militias or anyone else due to having owned a music shop or having sold music in the past.

17. In his submission of 14 October 2019, the applicant’s representative referred to a June 2017 UK Home Office report, titled Country Policy and Information Note, Iraq: Sunni (Arab) Muslims. It was stated in that report that ‘a Sunni may be able to demonstrate a real risk of persecution or serious harm from a Shia militia, but this will depend on their personal profile, including their family connections, profession and origin.’[9] Other than the applicant being a music shop owner until 2011, which the Tribunal has already considered, there was nothing else about his profile that would suggest that he would be at risk of harm from Shi’a militias. The UK Home Office noted that reports that Sunnis experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern governorates, ‘do not appear to form part of a consistent or systematic risk to Sunnis.’[10] The report further stated that, barring particular factors, ‘in general Sunnis in the southern governorates are not subject to treatment which would be persecutory or cause serious harm.’[11]

    [9] UK Home Office, Country Policy and Information Note, Iraq: Sunni (Arab) Muslims, June 2017.

    [10] Ibid.

    [11] Ibid.

18. As it was put to the applicant at the second hearing, in its most recent Country Information Report in relation to Iraq, DFAT assessed that,

    [O]utside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.

19. Whist the Tribunal is prepared to accept that the applicant may face some discrimination as a Sunni Muslim in Basra, based on the evidence before it, the Tribunal is not satisfied that there is real chance or a real risk that this discrimination will give rise to serious harm or significant harm for the reason of, or for reasons arising from, his religion.

20. In the same submission, the applicant’s representative referred to a passage in the 2017 DFAT report, stating that ‘a person wishing to relocate to Basra requires a relation or friend to guarantee that person ‘is free from terrorism and of good character’. The guarantor must be cleared by security services and physically attend the relevant checkpoint. If the person wanting access to the province is an IDP, that person must also register with the Ministry of Displacement and Migration.’[12] The representative submitted that the procedure described contemplates that the applicant will be at risk if he were to return to Basra due to the security procedures which will expose him as a person of interest to the militias in the south. The Tribunal does not agree with this assessment. The information is in relation to persons who wish to relocate to Basra and not those who are from Basra, such as the applicant. In any event, the Tribunal has rejected the applicant’s claims that he is of interest to anyone.

    [12] DFAT, Country Information Report, Iraq, 26 June 2017.

21. The submission also referred to country information in relation to intra-Shi'a violence in Basra and the involvement of Shi’a militia in criminal activity. It was unclear from the submission how exactly this relates to the applicant’s circumstances. The applicant’s representative also referred to a 2018 report from the US Department of State’s Bureau of Diplomatic Security titled ‘Crime & Safety Report: Basrah’. This report appears to be primarily focussed on the threat of crime ‘directed at or affecting official U.S. government interests.’ Nevertheless, it refers to political infighting among government authorities and the growing influence of militias as having contributed to the lack of security in Basra. Whilst the Tribunal accepts that Basra has witnessed intra-Shi'a violence and general lack of security, the Tribunal does not accept that the situation in Basra would give rise to a real chance or a real risk of serious or significant harm for the applicant.

22. Similarly, the Tribunal accepts that many cities in Iraq, including Basra, have continued to witness mass anti-government protests since October 2019, resulting in many deaths, injuries and general lack of security.[13] The applicant has not claimed that he has any intention of participating in demonstrations or protest against the government should he return to Iraq. There is no persuasive information before the Tribunal to suggest that the lack of general security and any instability generated by the recent unrest is faced by the applicant personally. The Tribunal does not accept that the unrest and the general security situation in Iraq would expose the applicant to a real chance of persecution.

    [13] See, for example, Iraq: HRW denounces lethal force against protesters, urges probe, Al Jazeera, 11 October 2019, A bloody mess: Protests in Iraq are met with violence, The Economist, 31 October 2019, Abdul-Zahra, Qassim and Faraj, Murtada, Iraqi officials: 1 protester shot dead in fresh violence, 660News,

23. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the current civil unrest, lack of general security and the instability the applicant may fear are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Iraq.

24. The Tribunal does not accept that there is a real chance that the applicant will be persecuted for one of the five reasons mentioned in s.5J(1)(a) of the Act nor that the risk to him in this context is a real risk faced by him personally rather than one faced by the population of the country generally and therefore excluded from the complementary protection criterion by virtue of s.36(2B)(c) of the Act. 

25. For the reasons given above, the Tribunal does not accept on the evidence before it that there is a real chance that the applicant will suffer persecution involving serious harm as required by s.5J(4)(b) of the Act for one of the reasons mentioned in s.5J(1)(a) of the Act, including his Sunni religion, imputed political opinion or membership of any particular social group, such as music sellers or music shop owners in Basra, Sunni music sellers or music shop owners in Basra or former Sunni music sellers or shop owners in Basra. The Tribunal does not accept that there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act for any reason if he returns to Iraq now or in the reasonably foreseeable future. The Tribunal finds that there are no obligations under relevant international agreements which will be breached if his visa is cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

26. There are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act.

    If there are children in Australia whose interests could be affected by the cancellation

27. There are no children in Australia whose interests could be affected by the cancellation.

    Whether there are mandatory legal consequences to a cancellation decision 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

28. If the applicant’s visa is cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. However, the applicant is a citizen of Iraq. He travelled to Iraq on three separate occasions following the grant of his protection visa and the Tribunal considers that he will be able to return to Iraq. The Tribunal does not accept that indefinite detention is a likely consequence of the cancellation decision. 

    Conclusions

29. For the reasons set-out above, the Tribunal has found that the applicant provided incorrect information in his application for a protection visa and the accompanying statement. The Tribunal has found that the decision to grant the applicant a protection visa was based on the incorrect information which he provided. Having carefully considered to all of the relevant circumstances, the Tribunal finds that the applicant’s visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)    requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.