1727209 (Migration)

[2019] AATA 6350

1727209 (Migration) [2019] AATA 6350 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727209

MEMBER:Alison Murphy

DATE:21 October 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 200 (Refugee) visa.

Statement made on 21 October 2019 at 10:10am

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) – Subclass 200 (Refugee) – failure to notify department of changes – change in relationship status – ‘shot gun’ wedding – has wife and child – Afghan Hazaras – unplanned pregnancy – no evidence of prior relationship – no evidence of joint ownership – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 104, 107, 109,
Migration Regulations 1994 (Cth), r 1.09A

CASES

Minister for Immigration and Citizenship v Brar [2012] FCAFC 30

SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

HISTORY OF PROCEEDING

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 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a [age]-year-old male, a national of Afghanistan formerly resident in Iran. He arrived in Australia [in] June 2015 as the holder of a XB-200 offshore humanitarian visa granted to him on the basis he was a member of the family unit of his mother [Ms A], the primary visa applicant.

3. On 8 December 2017 the delegate cancelled the applicant’s visa on the basis that she considered the applicant failed to notify the department of a material change in his circumstances before the visa was granted. In particular she considered the applicant had failed to notify the department he had married or entered into a de facto relationship prior to the grant of the visa.

   THE REVIEW PROCEEDING

4. The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms B] and father [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.

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

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

   LEGISLATIVE FRAMEWORK

8. 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.

9. 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.

10. 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.

    Is the s.107 notice valid?

11. In considering whether the s.107 notice in this case is sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs:[1] 

    Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.[2]  

    [1] [2000] FCA 1235.

    [2] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]‑[26].

12. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[3]  

    [3] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].

13. Further, the Federal Magistrates Court in SZEEM v Minister for Immigration stated:

    the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[4]

    [4] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].

14. The s.107 notice is dated 5 June 2017 and was given to the applicant by email. It advises the applicant that his visa may be cancelled under s.109 of the Act because it was considered that he had failed to comply with s.104 requiring him to inform the department in writing of any changed circumstances which would have the effect that an answer to a question in his visa application is incorrect. It records that because he was outside Australia at the time the visa was granted, s.104(3) requires him to inform the department in writing of any change in circumstances that occurs after the application was made and before the applicant was immigration cleared.

15. The s.107 notice sets out in some detail the information given by the applicant in his offshore visa application about his marital status, as well as particulars of the basis which cause the department to consider that his circumstances later changed. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

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

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

17. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 and can be summarised as follows:

    ·On 26 November 2013 the applicant was included as a dependent applicant of his mother [Ms A] in her application for an offshore humanitarian (XB 200) visa;

    ·In the Form 842 signed on 21 September 2013, the applicant ticked the box stating he had never married or been in a de facto relationship and undertook to inform the government of any material changes to his circumstances while his application was being considered or before he was immigration cleared;

    ·His application for an offshore humanitarian (XB 200) visa was granted on the basis that the applicant was a dependent member of the family unit of his mother [Ms A] and the applicant arrived in Australia [in] June 2015;

    ·On 28 June 2016 he submitted an application for a partner visa, seeking to sponsor his wife [Ms B]. In that visa application he stated that he and his wife had married and committed to a shared life together to the exclusion of all others on [in] October 2015. He also stated that they had a [son], born [date];

    ·In a statement in support of the visa application, the applicant stated he had initially become acquainted with his wife while they were at school in Iran and over time they fell in love. They entered into a sexual relationship and she subsequently became pregnant with his child. He knew they would be in danger if anyone found out about their situation and when he arrived in Australia he was in contact with his wife via [social media] and promised he would return to Iran and marry her before the child was born;

    ·The applicant’s wife also submitted a statement in support of the partner visa application, in which she stated that they initially became acquainted at school where they were seeing and visiting each other. Over time they became more interested in each other and after discovering she was pregnant, she asked the applicant to ask her parents for her hand in marriage but the applicant stated it wasn’t the right time as he wanted to leave Iran, but he promised to return to Iran;

    ·Prior to the applicant’s arrival in Australia and immigration clearance, he did not notify the department of changes to his circumstances;

    ·The s.107 notice stated that given the applicant’s claims about his relationship, it was considered the applicant was in a de facto relationship prior to his marriage [in] October 2015, that he was aware his partner was pregnant with his child and in all likelihood he was married prior to his application for the visa. It was considered he was not a dependent member of his mother’s family unit, which was an essential criterion for the grant of his visa.

    Did the applicant fail to provide updated information about his marital status prior to being immigration cleared?

18. The applicant responded to the s.107 notice on 18 June 2017. In that response the applicant maintained he had not failed to inform the department of any material change of circumstances in relation to his marital status. He maintained he was not married to, nor in a de facto relationship with, his wife prior to his arrival in Australia. Rather, he married his wife in a ‘shot gun’ wedding seven days prior to his son’s birth so that his son was not born out of wedlock.

19. In a statutory declaration made 5 October 2019, the applicant elaborates on his circumstances in Iran and the formation of his relationship with his wife (in summary):

    ·Prior to the applicant’s arrival in Australia and immigration clearance, he did not notify the department of changes to his circumstances;

    ·The applicant and his family are Afghan Hazaras who arrived in Iran as refugees in about 1997 or 1998 (Gregorian calendar). They were poorly treated in Iran and on one occasion the applicant was arrested because he did not have his Afghan migrant card with him and the officer threatened to take him to prison if he did not pay the officer the money. The officer let him go when it became obvious that the applicant did not have money to pay;

    ·As Afghan migrants in Iran, they could not own property and were limited to low paying jobs. They were issued with immigrant cards that were always temporary and had to be renewed each year;

    ·The applicant’s father made his way to Australia, arriving six to seven years before the applicant. He then sponsored the rest of the family (being the applicant’s mother, sister and four brothers). The family were accepted as refugees by the UN and came to Australia with their husband and father’s sponsorship. They are not citizens of Iran and the last immigrant card held by the applicant has expired. If removed from Australia, the country to which he will be returned is Afghanistan;

    ·The applicant and [Ms B] met because their (single sex) schools were in the same vicinity. Cultural restrictions in Iran around the freedom of men and women to see each other in public meant there were limited opportunities to see each other, and not as boyfriend and girlfriend;

    ·The applicant and [Ms B] did not consider themselves boyfriend and girlfriend. It is not possible for members of minority groups such as Afghan Hazaras to enter into such relationships outside of marriage and the applicant and [Ms B] would have been in serious trouble not only with the Iranian authorities but also with their families and community had they entered into such a relationship. It is completely unacceptable in their community to be in a relationship or live with a partner before marriage;

    ·While the applicant liked [Ms B] and had established a friendship with her, he was not in a position to marry her as he could not support her financially at that time. Nor had they disclosed their interest in each other to their families. He feared they would not consent to any marriage because he was too young and not in a financial position to support a family, working only part time from home [in an occupation] with his mother;

    ·He and [Ms B] talked once about marriage before the applicant came to Australia and the applicant told her it was not the right time because of his application to migrate to Australia. At that time she was pregnant, but they did not yet know it. They talked about the possibility of marriage wishfully, on the basis that in the future, if the circumstances were right, he would ask her parents for permission to marry her;

    ·The timeframe he was thinking about for returning to Iran to see [Ms B] and ask her parents for permission to marry was two to three years, after he had established himself financially as a potential husband and if his parents gave consent to the marriage;

    ·Before he came to Australia, [Ms B] told him she thought she was pregnant. He thought she must be wrong as they had only had sexual relations once. They tried to hide the fact they had had sexual relations because of the consequences they would face if their families and community found out;

    ·Apart from their families and the Afghan community, the applicant and [Ms B] faced a bigger problem with their relationship from the Iranian authorities. De facto relationships are not lawful in Iran, although the applicant understands that some people have those kinds of relationships secretly in big cities in Iran. The Iranian authorities view such relationships as adultery, punishable by stoning or death;

    ·About two weeks after the applicant arrived in Australia, [Ms B] saw a doctor who confirmed she was pregnant. The applicant realised there was no way around telling his family who were shocked and upset. They agreed he must marry [Ms B] before the baby was born, otherwise the family would be dishonoured and [Ms B] and the baby would be in grave danger. His family agreed to contact [Ms B’s] family and ask permission for the marriage;

    ·The applicant returned to Iran by himself so that he could marry [Ms B] in Iran before the baby was born. Their marriage was registered in a law office [in] October 2015, with only close relatives present at the ceremony. Later wedding celebrations were held at a relative’s house [in] October 2015 where more people we invited. Not long after, their son was born. They went to the Afghan Embassy in Iran to register their marriage, showing the religious marriage certificate and other identity documents. The civil marriage certificate was issued by the Afghan Embassy some time later;

    ·The applicant stayed in Iran for about three months, accompanying her to doctor’s appointments. He returned to Iran for about three months the next year to help his wife and spend time with his wife and son.

20. Written statements were also received from his wife [Ms B] and her father, [Mr C], who are both resident in Iran. In those statements both confirm that her family was not aware of her relationship with the applicant until it became clear she was pregnant. They state the family was upset, shocked and angry when they found out. They state that the applicant’s father called [Ms B’s] family and sought permission for the marriage, which they had to accept. Three months later the applicant came to Iran and married [Ms B].

21. Written statements were also received from the applicant’s parents [Ms A] and [Mr C]. Both state that they were not aware of their son’s relationship with [Ms B] until after they arrived in Australia, when he told them she was pregnant. Both state they were very upset with their son, before deciding that the applicant’s father would call [Ms B’s] father to seek his consent to the marriage. [Ms B’s] father agreed to the marriage and the applicant travelled to Iran for three months to marry [Ms B].

22. At hearing the applicant gave evidence consistent with his statement above. He further explained that he and [Ms B] had met on their way to and from school from about 2013, walking together in the street and occasionally sitting on a bench on the park, but had never been out together in public, visited each other’s homes or been introduced to each other’s families in the context of their relationship. At the end of 2014, they were seeing each other more often and their interest in each other increased.

23. One day when he knew his mother wasn’t home they went to his house, where they had sex for the first time. They were so worried about being found out, they stopped seeing each other for a period although they continued to talk on the phone. The applicant next saw her on the street some months later, when he told her he was going to Australia. [Ms B] told him on the phone that she thought she might be pregnant, but he didn’t think it was possible to get pregnant after only having sexual intercourse on one occasion. Her pregnancy was not confirmed by a doctor until about two weeks after the applicant’s arrival in Australia. She told him about the pregnancy and asked him to return to Iran to marry her.

24. At hearing I also took oral evidence from [Ms B] (by phone from Iran) and the applicant’s father, [Mr C]. [Ms B] confirmed that nobody had known about their relationship while the applicant was living in Iran. At the time he left for Australia, she did not expect they would get married or that their relationship would continue. She had not been sure of her pregnancy until seeing a doctor about two weeks after the applicant travelled to Australia.

25. She gave evidence that she immediately knew the danger of her situation because of the seriousness with which her family and community would view their sexual relationship. She stated her parents were extremely angry and upset when she told them about the relationship and the pregnancy. She confirmed his parents spoke to her parents and it was agreed the couple had no choice but to marry as it would otherwise impact severely on [Ms B], her son and the wider family. She gave evidence that she and the applicant had remained living with their own families up until the time he left for Australia and he never gave her money until after she discovered she was pregnant. Since that time, he has financially supported [Ms B] and their son.

26. The applicant’s father gave evidence that the family had no knowledge of the applicant’s relationship with [Ms B] until after they arrived in Australia. He said they were shocked and upset to discover their son had had a sexual relationship before marriage and he immediately rang [Ms B’s] father to apologise to the family and ask them to consent to the marriage. He said that while nobody was happy about it, the families realised that with the pregnancy there was no alternative but to allow the couple of marry. He stated that the family did not return with their son in Iran for the marriage in October 2015, but he travelled there about a year later to again apologise to [Ms B’s] family.

27. I accept the consistent evidence of the applicant and his witnesses as to the formation of the applicant’s relationship with [Ms B].

    Was the applicant married or in a de facto relationship prior to his entry to Australia in June 2015?

1. In order to determine whether the applicant failed to notify the department of a material change of circumstances pursuant to s.104, the Tribunal must consider whether the applicant was married or in a de facto relationship prior to being immigration cleared.

2. The Australian courts have held that a mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut.[5]

   [5] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

3. It is important to note that the applicant was not required to notify the department of any or all romantic or sexual relationships he entered into after the visa application was made and prior to being immigration cleared. Rather the obligation placed on him by s.104 was to notify the department in writing if his circumstances changed such that any answer he gave in his visa application was incorrect. The only relevant question asked of him in the visa application was whether he had ever been married or in a de facto relationship, to which he answered that he had not.

4. There is no evidence of any kind to suggest the applicant was married before he entered Australia and was immigration cleared [in] June 2015. To the contrary the applicant, his wife and their families have maintained the applicant did not marry until he returned to Iran in October 2015, several months after he first arrived in Australia. I accept the applicant’s evidence his marriage was registered [in] October 2015 and the wedding itself took place [in] October 2015. The applicant’s marriage certificate confirms the date of marriage as [October] 2015, as does the birth certificate of his [son]. For these reasons I am not satisfied that the applicant was married prior to his arrival in Australia.

5. Nor am I satisfied the applicant was in a de facto relationship with his wife [Ms B] prior to his arrival in Australia [in] June 2015. The applicant has given consistent and logical evidence as to an unplanned pregnancy which led to his sudden marriage in October 2015 and this is supported by the evidence of his wife and both families. It is common knowledge that such events occur to couples everywhere, including those who have no immediate plans for marriage, cohabitation or child rearing. Country information indicates that increasing numbers of Iranians are having sex illegally outside of marriage, with unwanted pregnancies occurring in about 13% of such cases.[6]

   [6] ‘Rise of pre-marital sex in Iran’, Telegraph Group – United Kingdom, 29 December 2008, CX217445.

6. The fact that the applicant and [Ms B] had a sexual relationship prior to the applicant’s arrival in Australia does not establish that their relationship was that of de facto partners. Not all sexual or romantic relationships constitute a de facto relationship. Rather s.5CB of the Act defines a de facto relationship as follows:

   De facto relationship

   (2)  For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)  they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)  the relationship between them is genuine and continuing; and

   (c)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis; and

   (d)  they are not related by family (see subsection (4)).

7. The criteria for determining whether a person is in a de facto relationship are set out in r.1.09A of the Migration Regulations 1994, which requires an assessment of all the circumstances of the relationship including the following matters set out in subregulation (3), being:

   (a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets; and

   (ii)  any joint liabilities; and

   (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)  whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)  the basis of any sharing of day-to-day household expenses; and  

   (b)  the nature of the household, including:

   (i)  any joint responsibility for the care and support of children; and

   (ii)  the living arrangements of the persons; and

   (iii)  any sharing of the responsibility for housework; and  

   (c)  the social aspects of the relationship, including:

   (i)  whether the persons represent themselves to other people as being in a de facto relationship with each other; and

   (ii)  the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)  any basis on which the persons plan and undertake joint social activities; and  

   (d)  the nature of the persons’ commitment to each other, including:  

   (i)  the duration of the relationship; and

   (ii)  the length of time during which the persons have lived together; and

   (iii)  the degree of companionship and emotional support that the persons draw from each other; and

   (iv)  whether the persons see the relationship as a long-term one.

8. In this case, the evidence before the Tribunal is incapable of establishing the parties were in a de facto relationship at any time before the applicant’s arrival in Australia. There is no evidence that the parties had any joint ownership of property or joint liabilities prior to the applicant’s arrival in Australia, nor that they pooled financial resources or shared household expenses. There is significant evidence as to the applicant’s financial and other support for his wife and child after his arrival in Australia, but this is consistent with his evidence that once the pregnancy was confirmed he realised there was no alternative but to marry his wife and he has supported his wife and child in Iran since then.

9. There is no evidence the applicant and his wife have ever lived together in a joint household, noting the consistent evidence of the applicant, his wife and their parents to the effect that the applicant and his wife each lived with their own families prior to the applicant’s travel to Australia. While the applicant has since applied for a partner visa to bring his wife and son to Australia, that visa has not been granted and his wife and son continue to live in Iran.

10. The available evidence indicates that the applicant and his wife saw each other infrequently while the applicant was in Iran and their family and friends were not aware of their relationship. Further, the evidence suggests that prior to medical confirmation of the unplanned pregnancy, the applicant and his wife were unsure whether there was a future for their relationship, whether their families would ever consent to their marriage or whether the relationship would end with the applicant’s migration to Australia.

11. For these reasons I am not satisfied that at the time the applicant travelled to Australia, he and [Ms B] lived together or had a mutual commitment to a shared life to the exclusion of all others.

12. Finally the available country information about Iran indicates that relationships involving sexual relations outside of marriage are still viewed as a crime in Iran, punishable by flogging, and in some circumstances, death, although in practice the death penalty is rarely carried out.[7] While that country information indicates that increasing numbers of Iranians are having sex outside of marriage, there are numerous reports of such couples having run-ins with the Iranian authorities who apply sharia principles.[8]

    [7] ‘Islamic Penal Code of Iran’, Islamic Consultancy Parliament, 30 July 1991, CIS#20883; ‘Iran's legal codes are studded with inconsistencies & vagaries’ , Guardian (Unlimited) (UK), 7 August 2010, CX262196.

    [8] ‘Rise of pre-marital sex in Iran’, Telegraph Group – United Kingdom, 29 December 2008, CX217445; ‘Stolen Kisses: Iran's Sexual Revolutions’, Nation, The (US), 25 November 2008, CX215242.

13. DFAT reports that hard-line sharia interpretations and conservative cultural and societal norms continue to limit the extent to which women are able to participate in Iranian society, requiring them to adhere to conservative dress codes and to obtain their husband’s permission to travel alone or work in occupations deemed incompatible with family life.[9] Country information submitted by the applicant’s representative indicates that de facto relationships are known as ‘white marriages’ in Iran and are increasingly common in Tehran and other major cities, however persons entering into such relationships still face prosecution by the Iranian authorities if reported.[10]

    [9] DFAT Country Information Report 7 June 2018 at 3.78 - 3.89.

    [10] See country information in submissions dated 8 October 2019.

14. In such circumstances I consider it highly unlikely that the applicant and [Ms B], both living in Iran as refugees from a religious and ethnic minority, would have lived in a de facto relationship of the kind envisaged by s.5CB and r.1.09A prior to their marriage [in] October 2015.

15. As I am not satisfied the applicant was in a married or de facto relationship with [Ms B] at any time prior to his arrival in Australia, I am not satisfied that he failed to notify the department of a material change in his circumstances such as would render his answers in his visa application to be incorrect. It follows that I am not satisfied he failed to comply with s.104 of the Act or that there was non-compliance by the applicant in the way described in the s.107 notice.

    Conclusion on non-compliance

16. 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. 

17. 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

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)     requiring the holder:

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

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

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

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

    (b)    otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)    visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

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