1727951 (Migration)

[2021] AATA 2929

1727951 (Migration) [2021] AATA 2929 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727951

MEMBER:Denis Dragovic

DATE:10 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 June 2021 at 11:48am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – claimed adverse profile – target of the Militia – non-state actor – voluntary returns to the country of persecution – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had returned to his country of origin, Iraq, for a period amounting to sixteen months through the years of 2011 to 2017 and concluded that ‘the visa holder's frequent trips back to the country of persecution after he was granted protection are inconsistent with a person who holds a genuine fear of harm in that area.’ The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 31 March 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

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

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) which reads:

   Visa 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.

10. The notice identified non-compliance in the following respects:

    a.The answers given to questions 41 – 46 in the applicant’s application form for a protection visa. These questions include why the applicant left Iraq and why he is seeking protection in Australia. The answer given by the applicant to these questions simply stated, ‘Please see attached statement’.

    b.The statement provided in response to these questions was reproduced in full in the Notice of Intention to Consider Cancellation (NOICC).

11. In summary the statement submitted at the time of the protection visa application explained that he was employed by a [foreign] security company in Baghdad, Iraq. This employment was discovered by militants. He was beaten severely in July 2009. He promised to stop working for the security company and was released but they said they would follow up with him. He decided not to wait for their further visit and instead went into hiding. Following concerted actions by the government to capture militants the applicant believed he was safe and returned to his home in Baghdad. In September 2009 militants came to his house late at night seeking him and fearing harm he escaped and then decided to flee Iraq.

12. The full statement is reproduced herewith:

    Why I left my country:

    I was working with a private [foreign] Security Company at [Workplace 1] commenced in 2005, only my family knew of my employment. It was not safe to have friends of my employment as I was working with a foreign company and that. I and others aware would be considered as being a traitor to the Iraqi people.

    Although I kept it secret, I avoided using the main road to get to work instead I entered via [location] so that no one would see me with my uniform and bag. However [in] June 2009, while returning home, I was stopped by two Iraqis who called out my name. They beat me and then dragged me into [location] where I was heavily interrogated. They yelled at me that I was a spy and a traitor, they forced me to show them the contents of my bag.

    I pleaded my innocence, saying that I only worked at [Workplace 1], however when they opened my bag they found my Security Badges. It was obvious to them that I would have a weapon, they beat me severely, I pleaded to be released and promised that I would not continue to work anymore for the [foreign] Company. They reluctantly agreed, but strongly reminded me that it was only temporary and they will get more information on me.

    I went home and made the decision that I could not wait for them to come back for me as I they would. Any person found to be working for the International forces or companies are at risk of being killed by the terrorists and extremists known as the Militia groups as they believe that the international forces are dirty forces.

    I remained in hiding for at least three months as I was so very scared. My mother was afraid for my safety as it was known that any person working for the foreign forces is killed by the Extremists and Terrorists (the Militia).

    On the 12^th September 2009, the Government with the Foreign Forces surrounded Baghdad and arrested the Extremists and Terrorists known as the Militia groups.

    At first I thought that I would now be safe however on the 15^th September 2010 my brother brought to my attention that he has seen a car patrolling outside our house. I denied any concerns and said I was safe at home.

    On the 12^th September 2009, late at night, four people entered our house looking for me. I escaped via our neighbour's house. I remained hiding there until the next morning where I requested if the neighbour’s nephew could take me to my cousin's house or close by. I called my cousin from the police station to collect me, I was only there for a short while until I went to my sister’s house, and however they also did not want me to stay there as it was dangerous for them to be housing beaten by those men who had been to my house.

    I had nowhere to go as those men would find me, they were of the Militia, known as Ktaeb and Aaseb Al Hak.

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

    I will be killed

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

    The Militia

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

    They believe that I am a traitor as it was found I was working for [a foreign company]. I have been in contact with my brother recently and he told me that he and my mother have received more threats and demands to know where I am.

    My mother and brother have had to go in hiding as there were more threats after I left. They have posted notices on the door stating that blood is demanded from this place.

13. The applicant arrived in Australia [in] April 2010 and on the basis of the above claims was granted a protection visa on the 13 April 2011 by the Departmental delegate.

14. Subsequently [in] July 2011 the applicant departed Australia for Iraq returning in Australia [in] October 2011. The applicant again departed for Iraq in 2012, 2013, 2014 and 2015. In total the applicant had spent 16 months in Iraq. As a result, the Department notified the applicant of its intention to consider cancellation by sending the applicant a NOICC letter on March 2017 and subsequently the Department cancelled the applicant’s visa on 6 November 2017.

15. The NOICC identified the incorrect answers as being those that related to his claims of why he feared returning to Iraq, specifically, answers to questions 41 – 46 on the application form. The delegate wrote, ‘Taking into account your apparent voluntary travel back to Iraq, totalling 16 months from 2011 to 2015, without apparent harm, suggest your claims provided on the Protection visa application, relating to holding an adverse profile and fear of militia…is unsupported.’ The delegate engaged with each question from 41 – 43 concluding that ‘your travel back to Iraq suggests these claims were incorrect,’ and for 44 and 45 that ‘this suggests that you did not hold the claimed adverse profile you stated in your protection visa application.’ Question 46 was found to be incorrect as the applicant had stated that the Iraqi authorities could not provide protection which the delegate found to be ‘incorrect as voluntarily (sic) returned to Iraq on five occasions.’

16. At the Tribunal hearing the applicant provided greater detail to his circumstances in 2009. He explained that he used to work on a roster of 3 days on and 3 days off, each day finishing at 6pm. But because others knew that the roster ended at 6pm or early in the morning he would leave [Workplace 1] later or wait until early in the morning. He would take other precautions including using different routes and hiding his badges and identification. [In] June 2009 as he was going home from work the situation was bad with a lot of US forces acting against armed militias. Along the route into his neighbourhood there used to be check points controlled by the militias. At one of these he was searched, he had a bag and they asked about his work, he said that he worked in [Workplace 1] as a cleaner. They searched him further and found his security badges and realised that he was working for a security company. He was assaulted and beaten. They threatened him harm if he didn’t leave his work. They suspected that he was working as an interpreter for the US armed forces.

17. After being beaten and threatened he claimed that he was allowed to return home. He said that he became very cautious but continued to work after taking leave for one or two weeks. He told the Tribunal that he once stayed at [Workplace 1] for one week straight without taking the risk of returning home. He said that he continued with this cautious living and working approach until September when things were getting out of hand. He said that the militias were attacking anyone working for a foreign company, not just foreign forces.

18. The next incident occurred on the 15 September 2009 (in his statement this is written as 2010 but I accept that this is a mistake as he arrived to Australia in April 2010). The militia came to his house, they did not knock. His mother and wife were in the house and as they came through his mother shouted, ‘they came, they came’. They demanded to know where he was, specifically naming him and shouting, ‘where is he we are here to take him away’. His mother tried to delay them, but they just pushed her aside and entered the house. They didn’t harm her, nor did they threaten her at this stage.

19. In response, the applicant claimed to have jumped over the fence into the neighbour’s house where he remained for one day. The following day the neighbour helped him get out of the suburb where he lived. He first went to another part of Baghdad and then to Basra where one of his sisters lived.

20. Between 15 September and December 2009, when he fled Iraq, the applicant claims that he lived with his sister for a month, but she became concerned about her safety and the safety of her husband who worked for the Iraqi police. He said that they did not want him to remain as the security situation was getting worse. He said that he had many friends working at [Workplace 1], and he knew that they had ways to get in and out of the country, so he spoke to them. He went back to Baghdad and arranged for a flight out of Iraq.

21. During the period that he was in Basra his wife moved out of the Baghdad home which the militia had raided and went to live with her parents in a different, rural area, while his mother left the house and started living in another area in Baghdad. The applicant’s younger brother who was living in the same house at the time and had previously been kidnapped in 2007 with the family needing to pay a ransom also moved with his mother. Subsequently he travelled to [Country 1]. They all moved as they feared the militia and its growing control in the area, especially as they had already experienced the kidnapping of one son before.

22. The applicant believes that the militia who had beaten him were one of the Shia militia, but he wasn’t sure which one. He suspects that it was either Asa’ib Ahl-Haqq but thought it possible that it could be one of the others such as Kata’ib Hizbollah or Ja’ish al Mahdi but he said that it could have been any other group.

23. In considering the applicant’s circumstances I note that he has not embellished his evidence through the numerous engagements he has had with Australian migration bodies. There is one minor apparent difference that has emerged between his evidence given to the Department and that which was provided to the Tribunal, namely how he spent the period between June and September 2009. In his written submission he only mentioned that he went into hiding whereas during the hearing he explained that he hid in [Workplace 1] for a while but otherwise he continued to work. I am inclined to dismiss this difference for the reason that the written statement in which he describes this period is limited to one sentence and as such is not so much inconsistent with the evidence provided at hearing as incomplete relative to the three hours of evidence provided at the hearing in which he went into detail about his activities.

    Consideration of whether there are grounds to cancel the visa

24. In considering whether there are grounds for cancellation as identified in the NOICC I turn my mind to consider whether the applicant provided incorrect information in his application. The incorrect information identified by the delegate of the Minister was that his claims of being a target of militias and his life being at risk was incorrect because he had returned to Iraq on five occasions across a period of five years and stayed for a period of 16 months. It can be inferred that the basis of the NOICC connecting the claim to fear harm as expressed in the application form and the fact that he returned is two-fold. Firstly, that the applicant did not have the subjective fear that he claimed to have as he otherwise would not have returned and as such the events that he claimed occurred, must not occur. Secondly, as an objective fact, that the applicant was not killed while he lived in Iraq for 16 months would indicate that his claim to have an adverse profile and that he would be killed if he was to return to Iraq, was false. This logic which was either implicitly or explicitly reasoned in the NOICC led the delegate to find that the applicant’s claims in his application were false and therefore he had provided incorrect information.

25. To begin to consider this it is important to ask whether it is possible to concurrently hold a fear and yet overcome that fear and risk one’s life. In other words, could it be possible that the applicant’s narrative was true and yet he still decided to return to Iraq. What could have compelled the applicant to risk his life to return to Iraq? At the hearing the applicant explained that he had returned to be reunited with his family and to take care of his mother.

26. The applicant said that he was scared to go back to Iraq. He said that he had left his youngest son who was one and a half years old behind in Iraq. He said that he first returned to Iraq to see his son and to get papers and a passport for his three children as they would not be issued without the father present.

27. Contemporaneous country information was provided by the representative that supported this claim:

    3.4.1 Documentation requirements for children under the age of 18 must have confirmation from a guardian in order to be issued a passport (Iraqi Ministry of Interior, n.d.b). The guardian must enclose a copy of his/her own identity documents and appear in person when the applicant submits his/her passport application and fingerprints. Children under the age of 10 can only be issued a passport if their father can document Iraqi citizenship (Iraqi Ministry of Interior, n.d.b).[1]

    [1] LandInfo, ‘Iraq: Travel Documents and other identity documents’, 16 December 2015, p 9 available at:

28. Relevant to this decision I note that the above country information states that for the applicant to arrange for his children’s passports he had to appear in person in Iraq.

29. In addition, the representative provided contemporaneous country information on the situation of married women obtaining approval to access a passport:

    The Passport Directorate also states that a married woman must obtain the approval of her husband [up]on granting her a passport noting that her husband must submit his identification documents and must be present in person in the subsidiary passports department in order to provide his live fingerprint.[2]

    [2] Immigration and Refugee Board of Canada, Iraq: Requirements and procedures to obtain a passport from within and outside of Iraq, including procedures to obtain a passport for youth, women, and Bahais; length of time to issue passports; features of the new A-series passport; validity of the G-, S-, H-, M-, and N-series passports, 23 December 2011, IRQ103919.E, available at:

30. Again, for the applicant to arrange for his wife to leave Iraq he had to appear in person.

31. I note that in both circumstances there is no scope to delegate the responsibility to someone else unless guardianship had changed in circumstances such as the death of the father/husband.

32. The applicant also described his mother’s deteriorating health. He said that she had long standing diabetes and her kidneys were not functioning.

33. I put to him that he hadn’t mentioned the need for passports in his response to the NOICC. He said that the NOICC reached him when his mother’s death was on his mind and he didn’t have a lawyer to represent him. He said that his situation was very bad at the time and he wrote the response only with the help of friend. I note that there is no evidence to suggest that the applicant was supported by a lawyer or a migration agent in preparing his response to the NOICC and as such accept this to be true.

34. In a post hearing submission copies of the children’s passports were provided. Each show the date of issue being [date] 2011. This evidence support’s the applicant’s claims that he was facilitating the passports for his children during his first return trip as he is recorded as being out of Australia between July and October 2011. In addition, there is evidence that the applicant, shortly after his return, applied for humanitarian visas for his mother and children on 25 December 2011, which were refused on 16 August 2013. He subsequently applied for a partner visa.

1. As a matter of record, the applicant’s family arrived in Australia in October 2013. Two of his three children have Australian citizenship, the third child and his wife do not.

2. Regarding his mother, the applicant went back to Iraq in December 2014 for one month because, he claimed, his mother was very sick. He returned to Iraq in 2015 again despite the security situation getting progressively worse because, he claimed, his mother was in intensive care. He said that he went to say good-bye to her. He claims that he received a medical report from his brother about his mother and he took that to Immigration before he went overseas. His mother died in October 2016. The applicant did not travel to Iraq in 2016.

3. I asked him why he thought he had to fly to support his mother for less than one month if he has three sisters in Iraq, one brother in [Country 1] and one in [Country 2]. He said that it was because his mother wanted him and his other brothers to support her and the three sisters all lived in Basra, al-Kut and al-Amara, which I acknowledge are a substantial distance away from Baghdad and along a dangerous road.

4. Country information from 2010-2011 describes the situation in Iraq as follows:

   The US Overseas Security Advisory Council reported in April 2011 that despite the general decline in terrorist-related violence, the security situation in Iraq remained fluid. Terrorists and insurgent groups continued to conduct large-scale attacks, often targeting personnel and facilities associated with American organisations and the Government of Iraq.

   Insurgents also continued to carry out effective small-scale attacks throughout Iraq that caused fewer casualties but hindered free movement and influenced public opinion regarding safety and security.

   A March 2011 report by the UN Secretary-General described the security environment in Iraq as volatile. It stated that the civilian population continued to face ongoing acts of violence perpetrated by armed opposition groups and criminal gangs. “In particular, armed groups continue to employ tactics that deliberately target crowded public areas and kill and maim civilians indiscriminately. While some attacks appear to be sectarian in nature, frequently targeting religious gatherings or residential areas, others seem random, aimed at creating fear and terror in the population at large…”.

   In January 2011, the UN Assistance Mission for Iraq noted that armed violence continued to impact negatively on civilians, subjecting them to arbitrary loss of life and injury and limiting their access to and enjoyment of basic rights, including the right to access humanitarian services, the right of assembly, freedom of expression and religion. It also reported that the decrease in civilian casualties slowed in 2010 compared with the significant reduction in civilian casualties in 2007-2009, and that the distinction between criminal activity and terrorism became increasingly blurred during 2010.

   The International Committee of the Red Cross stated in December 2010 that though progress was achieved in some urban areas, in other places the lives of many Iraqis did not change for the better. In 2010, thousands of civilians continued to be exposed to the unpredictability of suicide attacks and other forms of armed violence, especially in Baghdad, Mosul, Diyala, Anbar, Salah Al-Din and Kirkuk.[3]

   [3] Department of Immigration and Citizenship, Onshore Protection Branch, ‘Country Guidance Note: Iraq’, September 2011

5. A distinction needs to be made between the state as a feared persecutor and a non-state actor. In a situation in which the state is the persecutor the act of returning is a considerable risk as it requires crossing through international borders controlled by state authorities or risking crossing into the country illegally and being caught. In the context of Iraq, it would require the applicant travelling through numerous customs, immigration and security check points. Furthermore, day to day activities would expose him to high levels of risk. Accessing passports for his children, for example, would be a risk under a scenario where he feared a state actor. But the situation is different in a scenario in which the feared persecutor is a non-state actor.

6. In this case the claimed persecutor was a non-state actor and in particular an unknown militia. Their strength arises from their control of checkpoints, their knowledge of the neighbourhoods and their integration into a community. The risk arising from returning to Iraq arises from the degree to which people know of his presence which can be influenced by the amount of time he spends in public and the number of times he passes through militia-controlled check points and other similar exposures.

7. This also means that as the persecutor is a non-state actor the risk for the applicant had he remained in Iraq, which was the basis of his application for protection, was different to the risk he faced visiting Iraq. That is because had he remained in Iraq, he would have had a fixed address, he would have children to take to school and a job to go to. He would have had neighbours who know him or neighbours who questioned who he was. All of this would have created a pattern and exposed him to risk unlike intermittently returning to Iraq without any obligations living temporarily in a location in such a way that his risk profile would have been much lower.

8. The applicant explained that during his visit from mid-July to mid-October 2011 and in subsequent visits he stayed in [Town 1] in Baghdad. [Town 1] is about an hour away from the neighbourhood where he had lived and was known to the militias. That he chose to stay in an area such a considerable distance away from where he was known gives some weight to his claims that he feared harm from militia.

9. The area he needed to obtain the passport was in [District 1]. To get to [District 1] he had to go through check points, but he said that there are check points controlled by the Iraqi army and others controlled by militias. He said that he knew which was which and he would go through those controlled by Iraqi army. This claim is backed by independent country information which confirms that at that time in addition to official government checkpoints militias also ran their own checkpoints.[4] The applicant’s explanation of how he reduced his risk by actively seeking out government checkpoints adds weight to his claims that he feared the militia.

   [4] Omar Al-Nidawi, Michael Knights, ‘Militias in Iraq's Security Forces: Historical Context and U.S. Options,’ 22 February 2018

10. The applicant had also entered Iraq using his Australian travel documents. When I asked the applicant why he did this, he answered that he thought it would minimise the risk he faced as his named was spelled a little differently than it was on his Iraqi documents. While I don’t accept that there is a connection between the risk that he faced arising from the militia and going through immigration as I do not accept that the militia would have him on some sort of watch list, that the applicant considered this and took this precaution adds further weight to his claims that he feared the militia.

11. The applicant said that during his time in Iraq he rarely travelled outside of the house, going once to the suburb of [District 1] for the passports and otherwise taking his mother when necessary to a nearby hospital.

12. Yet, despite his claims being supported by country information and the consistency of his claims along with the credibility in which he presented the claims, the applicant returned to Iraq on five occasions and remained in Iraq for 16 months. Can these return visits unilaterally undermine the credibility of his claims? Or could there be an alternative reason? I find that the applicant’s return visits do not negate his claims, but rather that he risked returning to Iraq to spend time with his ill mother, his family and to facilitate the exit of his family from Iraq, a motivation that the applicant concluded, understandably in my mind, was more important to him than his own life.

13. I now turn my mind to the alternative implicit justification for cancelling the applicant’s visa, namely, why he wasn’t killed despite claiming to have an adverse profile such that he would be killed. As noted earlier, it is important to distinguish the harm the applicant would face from non-state actors by living and working in Iraq, travelling everyday to a job, being known in the community and taking his children to school, from the risk he would face returning for short periods of time where he could live in a different area and keep a low profile. That the applicant returned on five occasions as opposed to once or twice, which appears to figure heavily in the delegate’s decision to cancel the applicant’s visa, is not relevant as the state is not the persecutor and as such his level of risk does not increase based on the number of times he travels in and out of the country passing through immigration.

14. The applicant’s risk is tied to who knew that he was present in Iraq, whether they had any associations with the militias that knew him and how often he would risk being exposed to the militia who had previously pursued him and had knowledge of his association with the [foreign] security firm. In this regard, his explanations were convincing. He kept a low profile. He stayed in an area an hour’s drive away from where he used to live. He didn’t leave the house often.

15. I have accept that the applicant was harmed as described in his application and subsequently expanded upon at the Tribunal hearing. I accept that the applicant feared being killed when he was living in Iraq and as a result fled the country. I accept the applicant’s claim that he continued to harbour a subjective fear for his life which led to him leaving Iraq.

16. While it was unwise of the applicant to return to Iraq not only considering the security concerns but his visa status, ultimately, I find 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.

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

19. I note as a comment, that the applicant’s fear of harm was based upon the threats of a localised militia. He had family members in three different cities across Iraq. He was qualified to work with an international security firm, a role that could be fulfilled in many other parts of Iraq. The security situation in 2010 when he had applied for his visa and the Department was considering whether to grant it, was improving. The future disruption caused by the arrival of Islamic State was not known at the time. Despite this evidence strongly suggesting that the applicant would not meet the threshold to trigger Australia’s protection obligations as he could have moved to another part of Iraq, the visa was granted to the applicant. While it is gratifying to the applicant and his family that the threshold applied by the delegate was generously low, such that it appears questionable to this member, it is not the role of the Department or this Tribunal to remedy that perceived mistake. The question before this Tribunal was a simple one, namely whether the applicant had provided incorrect information.

    Denis Dragovic
    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.