1728588 (Refugee)

1728588 (Refugee) [2018] AATA 5046 (25 October 2018)
DECISION RECORD

DIVISION:  Migration & Refugee Division
CASE NUMBER:  1728588
COUNTRY OF REFERENCE:                  Iran
MEMBERS:Brenton Illingworth (Presiding)
DenisDragovic

DATE: 25 October 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 25 October 2018 at 2:18pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – an irregular maritime arrival – stateless Faili Kurd living in Iran – whether applicant withheld significant details regarding her correct identity – whether the applicant provided incorrect information regarding her statelessness – decision under review set aside
PRACTICE AND PROCEDURE – valid s438 certificate
LEGISLATION
Migration Act 1958 (Cth), ss 97, 101, 102, 103, 104, 105, 107, 108, 109, 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

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).
The applicant was granted a visa on the accepted basis that she was in fear of persecution living as a stateless person and had no legal right to reside in her country of birth, Iran, and she feared arrest, torture and persecution in Iran.
Subsequent to being granted a protection visa the applicant’s mother was found to have legally entered Australia previously under an assumed name and using an Iranian identity card to secure her visa. The applicant’s claims that it was a false identity card did not sway the delegate. The delegate noted that the applicant’s mother submitted one Iranian passport, being an Iranian passport issued [in] 2008 and valid until [2018], to the Department since her initial visit to Australia. The delegate noted that the applicant’s name appears on her mother’s identity card. He did not accept that it was a forgery. The delegate did not accept claims that the applicant left Iran on a fake passport based upon country information suggesting it being highly unlikely, but instead found that she left on her genuine passport. The delegate noted that the applicant had submitted a report of a lost passport to the [State 1] Police. He did not accept the applicant’s claims that she had in actual fact lost a barge taraddod (Iranian intercity travel permit for non-citizens) but chose not to explain the difference to the police. In considering the totality of issues the delegate found that the applicant was an Iranian citizen. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 June 2018 together with her daughters in a combined hearing to give evidence and present arguments. The Tribunal also received oral evidence from her daughter’s [husband].
The applicant was represented in relation to the review by her registered migration agent.
Prior to the hearing the Tribunal was informed by correspondence dated 20 April 2018 that the migration agent had submitted an FOI request to the Department. As the applicant’s file contained a certificate under s.438 certain folios were not provided. Internal review of the decision was sought which led to the Department setting aside the earlier position and partially releasing additional documents. This was not satisfactory to the applicant with regards to the release of documents and as such she has sought review by the Office of the Australian Information Commissioner.
The Tribunal provided the certificate to the applicant prior to the hearing. The representative in correspondence dated 29 May 2018 argued that the certificate was defective in the reasons provided for non-disclosure.
At the hearing the Tribunal went through the validity of the certificate and discussed it with the applicant. The certificate appearing as folio 70 in the Tribunal folder we found to be valid. Nevertheless, we provided a summary of the documents and noted that a portion of the material covered by the certificate are the police reports which included a cover sheet from the police with the caveat:
The disclosure of information is provided under the provisions of clause 4(10) of Cabinet’s Information Privacy Principles Instruction (the Principles). The information collected from this correspondence, and any attached documents, may only be used witin the scope of clause 4(8) of the Principles. [State 1] Police advises all information contained in, and attached to, this correspondence is sensitive and must not be disclosed to any unauthorised person, including the individual to whom the information relates, unless required by, or under, any Act or law.
While withholding the police report, we nevertheless provided to the applicant the paragraph that was relevant to the applicant’s case, namely, the description of her lost passport as it was recorded by the police when the applicant made the report.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Relevant information pursuant to s.107 notice
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101(a) and s.101(b) which relevantly provides as follows:
Section 101: Visa applications to be correct
s101. 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
The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning: ‘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 s.46 allow to be used for making the application’.
On 1 November 2011 the applicant arrived on Christmas Island as an irregular maritime arrival. She claimed to be an undocumented stateless Faili Kurd living in Iran.
The applicant made the following claims in the protection visa application form and an accompanying statutory declaration:
· Your citizenship at birth: ‘Stateless Iran’
· ‘I left Iran with my family because we did not have any rights, we were not safe, our lives were in danger. Because I did not have any rights and no documentation I was never able to obtain an education or get a job. Even if people from my ethnicity (Faili Kurd) did work they were never safe, always worried that they would be caught. We were frightened that the Basij would come and arrest us.’
The applicant was found to be a person who engaged Australia’s protection obligations and was granted a Protection visa on 9 May 2012.
In May 2014 the applicant submitted a report to the [State 1] Police claiming to have lost her Iranian passport. The relevant passage describing her statement is as follows:
R/p states that she recently moved [house]. Since she moved house she has not been able to locate her Iranian passport. She reported it online but was told by the embassy that was not acceptable and she had to attend a police station to report.
This information was conveyed to the Department and formed the basis for the decision to initiate cancellation.
The Department sent a Notice of Intention to Consider Cancellation (NOICC) by registered mail on 8 August 2017. The NOICC provided a summary of answers the applicant had provided during the protection visa application process relating to her claimed statelessness. It then related the findings that the applicant’s mother [Ms B] had previously entered Australia twice under a different name, [Ms C]. Facial image comparisons found that the two people, [Ms C] and [Ms B], were the same person. It then engaged with the [Police] report, noting country information that shows ‘Iranian passports are issued to nationals of Iran,’ and that the Iranian Embassy’s website provides information on how to apply for a replacement including listing a requirement to provide a copy of the Australian police report. It then explains that the information available indicates that the applicant did not hold the adverse profile claimed. As such the delegate explained that the applicant had not complied with s.101(a) and s.101(b) in that the applicant had not provided an answer to questions 4 and 21 of Form 866C, and provided incorrect answers to questions 1 of Form 866B and questions 20, 22, 24 and 43 of Form 866C in relation to identity and claims for protection.
With respect to the particulars in the s 107 notice detailing the breach of s 101(a), the notice states that the applicant failed to answer two questions, namely:
a.Question 4 being “What other names have you been known by”; and
b.Question 21 being “Your current citizenship (if different to at birth)”.
In association with her mother’s application for a subclass 679 visa, the applicant’s mother submitted an Iranian ID card which stated her spouse is [Mr D], and named as one of her children [Ms A] born in Iran on [date of birth]. Based on this, the delegate determined the applicant had been known by another name and that her true identity is [Ms A].
The delegate also found the applicant to be an Iranian citizen and therefore provided incorrect information by failing to answer question 21 “Your current citizenship (if different to at birth). By not providing an answer to both questions, the delegate said the visa holder withheld significant details regarding her correct identity.
I am satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that based upon the evidence available he has formed the view that incorrect information was provided.
The applicant submitted a response to the NOICC which in summary made the following claims:
·      The applicant’s mother used a false passport to enter Australia.
·      The applicant was not aware of her mother’s travel to Australia nor her use of a forged passport at the time of her application for protection.
·      The applicant used a false Iranian passport to leave Iran.
·      When lodging the lost Iranian passport report with [police] she was referring to a barge taraddod issued to her by the Iranian authorities. She described the document as ‘a passport used by Faili Kurds to travel between the cities of Iran’.
·      She has never held citizenship of another country.
·      A scanned example of a barge taraddod was provided.
·      The barge taraddod is valid for three months.
·      The purpose for the applicant of having previously held a barge taraddod was to be able to travel to the Sultan Suhak shrine.
·      The applicant’s belongings were recovered from the Iranian police in 2013 by distant relatives. Among these documents were the barge taraddod. In July 2014 she reported them lost in the process of moving house. As a result she reported the document stolen to the police.
·      Because the barge taraddod is a rare document she referred to it as an Iranian passport as she was hoping that the police would recognise the Islamic republic’s symbol in addition she claimed that it was commonly referred to as a passport by stateless Faili Kurds.
The applicant also included a statutory declaration from [Ms B], the applicant’s mother. This was noted at the Tribunal hearing.
·      [Ms B] married at [age] and lived in very poor circumstances. They were on the brink of starvation when in 1956 a wealthy distant [relative] visited them and offered to provide financial support if she was to have children for him as he was infertile. [Ms B]’s husband agreed to the arrangement.
·      [Ms B] bore [number of] children which were all given to her [relative].
·      In 1979 [Ms B] and her family including the applicant were expelled from Iraq and moved to [Iran].
·      Fifteen years after expulsion to Iran [Ms B] received a letter informing her of the death of [Ms E], the wife of the wealthy distant [relative]. The letter from a relative of [Ms E] included [Ms E]’s identification document, passport and a letter containing the names of the [children] and their contact details along with a large sum of money.
·      Using the documents, [Ms B] added the names of her two remaining children [Ms F] and [Ms A], and replaced the photo of [Ms E] with her ([Ms B]’s) photograph. She specifically included “[name]” as the last name as she was planning to claim the children were actually the distant relative’s children. However she could not get identity documents for the two children she had added as evidence of the father’s Iranian nationality was required.
·      [Ms B] got in touch with the children raised by [Ms E]. When two of these children came to Australia she travelled here to meet them without telling her children who believed that she was visiting Iraq. This is how she first came to Australia in 2003 under the name of [Ms E].
·      She subsequently returned to Australia twice.
Following this process the Department concluded that the applicant was in breach of s.101(a) and s.101(b) and in particular that she has also been known as [Ms A] and was not stateless but a citizen of Iran and as a result the visa was cancelled under s.109 on 10 November 2017.
The Tribunal received a pre-hearing submission. Elements of the submission relevant to the question of whether grounds for cancellation arise are summarised below:
· The evidence before the delegate could not have led him to reach the required state of satisfaction as provided for by the Department’s Policy Advice Manual.
· The applicant maintains that she provided correct information to the Department in the visa application.
At the hearing we discussed with the applicants the police report each made separately:
·      [Ms A] reported [in] May 2014 a lost passport inferring it may have been lost during moving houses.
·      [The applicant’s daughter 1] reported [in] July 2014 the loss of her and her sister’s passports in [a] shopping centre.
·      [The applicant’s daughter 2] reported [in] July 2014 the loss of her and her sister’s passport in [a] shopping centre.
·      [The applicant’s son] reported [in] May 2014 a lost passport at [a] Shopping Centre.
The applicant’s daughter corrected the record and said that she had not lost any documents and there was no theft of documents in the manner described. She admitted the police reports were false. The decision to make the false reports was a decision they jointly came to. The applicant’s daughter explained that they needed some sort of identity document for their Australian citizenship applications hence the family decided to each separately go to the police and make a false report. With this false report the applicant then applied to the Iranian Embassy for identification documents. The applicant agreed that what her daughter had said was true.
The applicant’s daughter [summarised] the evidence in the following terms:
She called the Iranian Embassy saying that she needed an identification card. The embassy said that they should get a police report as they didn’t have any Iranian
identification. When she looked at the online system there was only the option to report a ‘lost passport’, so she did. She then applied for it claiming that she did so ‘like a bullet in the darkness’, maybe something will be created such as a birth certificate. We asked why a birth certificate would be generated if she is stateless. She said that she was given previously a barge taraddod. I put to her that it is not a birth certificate. She confirmed that she did not get any documents from the Embassy.
The applicant agreed with the evidence as provided by her [daughter].
The applicant then said that her daughter applied on the Iranian Embassy’s online system on her behalf with the hope of getting the barge taraddod. The applicant said that her thought was to submit the document to the Australian government for the citizenship process.
The applicant admitted to having lied to [State 1] Police in respect of a lost passport and then to the Department through the NOICC process by claiming the lost passport was a barge taraddod.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled, namely that the applicant held an Iranian passport and therefore was an Iranian citizen and not a stateless person.
Section 108(b) requires the decision maker to decide whether there was non-compliance in the way described in the s.107 notice. The decision maker must make a positive finding that there was non-compliance, and only then does the power to cancel under s. 109 arise.
Considerable submissions were made by the applicant supporting her claim to be Kurdish. The Tribunal accepts as fact that she is Kurdish. The Tribunal also notes that information from the Department of Foreign Affairs notes that not all Faili Kurds are stateless.[1] As such being Kurdish does not shed additional light on whether the applicant provided incorrect information regarding her statelessness.
[1] Department of Foreign Affairs, DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 at [2.15]
Central to the question of the applicant’s claims of statelessness are that she exited Iran on a forged passport and that the report of a lost passport to the [State 1] police was false. The applicant and her family members provided context to the circumstances that brought them to Australia as stateless persons. The Tribunal will consider each of these elements separately.
The applicant submitted in a statement that they exited Iran on a forged passport. Country information from periods close to the dates of the applicant’s exit from Iran states that it is difficult to exit using a forged passport but possible by bribing officials.
[T]he head of passport border control at Imam Khomeini Airport (IKA) Immigration Police had initially rejected the possibility of a person bribing their way through the airport, he did concede that “where a person does manage to leave Iran illegally this is not due to flaws within the computer system but rather a human error – i.e. a person has been bribed”.[2]
The source did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros. It was added that the source considered that the right connections were also important if one was to bribe one’s way out of the airport. When asked if an average Iranian could pay the necessary bribe, the employee commented that, “Everybody has connections in Iran”. The source indicated that many illegal Iranian migrants abroad have left Iran using original national passports but there were also examples of people having left on foreign forged passports.[3]
[2] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, p.37
[3] Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.67 BA32-EC3E599D646D/0/Iranendeligudgave.pdf> Accessed 26 April 2018

The applicant did not mention bribing anyone at the airport. The family could not explain how they obtained the passports as they claimed that it was organised by the men in their family. It may be that the forged passport is actually a fraudulently obtained legitimate passport.[4]
[4] Danish Immigration Service, LANDINFO (Norway) and Danish Refugee Council 2013, On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures: Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom 9 November to 20 November 2012 and 8 January to 9 January 2013, February, p.68 EC3E599D646D/0/Iranendeligudgave.pdf Accessed 6 March 2018
The Tribunal has also considered the evidence provided by the applicant regarding the report she made to the police about a lost passport. The original report she gave to the [State 1] Police clearly stated the lost item being a passport. When engaged by the Department in the process of cancelling her visa she said that it wasn’t a passport but rather a barge taraddod. At the Tribunal hearing she shifted her claims again by stating that there was no document at all. This apparent willingness to change her evidence at each stage is of great concern to the Tribunal.
The applicant provided to the Tribunal an explanation why she provided misleading information to both the [State 1] Police and the Department. She claimed that she was under the impression that to apply for her Australian citizenship she would require an identity document. She therefore conspired with her family to lie to the police and obtain a report which she could then submit to the Iranian Embassy. The Tribunal is concerned that the applicant, whose daughters speak English, would not have someone from the family enquire with the Department whether a stateless person would need to provide documentary evidence of their identity.
The Tribunal has considered the applicant’s explanation for making the false police report and in particular (i) whether her application to the Embassy was to obtain a document that truly existed, and as such suggest that she is an Iranian citizen, or (ii) whether she acted upon a misplaced desperation to seek any document that may have existed in the Iranian system, because she thought it was what would be required of them when applying for citizenship. Considering that the applicant did not contact the Department to check on what identity documents would actually be required of stateless people, for which even a simple search online would have provided an answer that none were required, the competing explanations are difficult to reconcile.
Nevertheless, the applicant and her family members provided a detailed narrative surrounding how they came to be stateless centred around the applicant’s mother selling her children which is supported by country information[5] of similar practices continuing to occur decades after the applicant’s claimed events. As the practice of selling children occurs now at a time when there is greater awareness of the consequences and some legal safeguards in Iran, the possibility of it occurring then and in the circumstances described is plausible.
[5] UN Committee on the Rights of the Child (CRC), The Third Periodic Report on the Convention on the Rights of the Child: The Islamic Republic of Iran, March 2013, available at: [accessed 22 August 2018] p101 and Radio Farda, Parliamentarians: 'Child Selling On The Rise In Iran', 21 May 2017 warned-over-rise-on-child-selling-phenomenon-in-Iran/28500644.html accessed 22 August 2018
While the Tribunal acknowledges the Iranian identity documents which the applicant’s mother provided to the Australian government during her two earlier visits to Australia, including a passport, suggest that the family are citizens of Iran, and another that lists the applicant as an officially registered child, the Tribunal notes the country information states:
Information has been located referring to the general availability of fraudulent documents in Iran. An unspecified Western embassy in Tehran stated that ‘it is possible to buy legal documents in Iran and obtain genuine documents in a fraudulent manner’. Consular officers at the U.S. embassy in Ankara have stated that ‘documents are easy to get in Iran through bribery and connections’, including civil documents.[6]
[6] Danish Immigration Service op cit
In respect of the reason for the applicant making a false report to [State 1] Police and the circumstance in which the family members conspired to each give a false report, the whole of the evidence is of concern. Nonetheless, the Tribunal does not find that the information in the [State 1] Police report with respect to the lost Iranian passport was in fact true as purported by the delegate, and accepts that claim of a lost passport, or as subsequently varied to lost barge taraddod, was false and made in the naive attempt to gain identity documents for the purposes of the Australian Citizenship application process.
In considering the country information, the applicant’s explanation and corroborating testimony from family members, the Tribunal does not accept on the face of the evidence that the applicant is an Iranian citizen. The Tribunal further finds that the applicant is a stateless Faili Kurd.
In respect of the description of the applicant by her mother in the Iranian Identity Card, the applicant did not know about the false description at the time of her application for protection. The false description was contained in a document provided in the course of the applicant’s mother’s visa application. There is insufficient evidence before the Tribunal to determine whether this document is a fraudulent document or a fraudulently obtained legitimate document.
On the evidence before the Tribunal, the applicant has never represented herself as having the last name “[name]”. The names “[Ms A]” and spouse “[Mr D]” were identified in a document created by her mother, without the applicant’s knowledge or consent. The Tribunal accepts the applicant’s mother was never legally married to [Mr D] and the reference to him as her spouse was false. The name “[name]” does not appear in any other document and the applicant has used the last name “[a different name]” consistently throughout the visa application process.
The Tribunal finds that the applicant has not been known by the name “[Ms A]”. The Tribunal finds that the applicant has not been known by any other name, and is in fact a Stateless Faili Kurd, and as such did not provide incorrect information as described in the NOICC. For those reasons, the Tribunal finds there has been no non- compliance in the manner described in the NOICC.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Brenton Illingworth Senior Member
Denis Dragovic Senior Member
ATTACHMENT – Migration Act 1958 (extracts)
5      Interpretation
(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.

97 Interpretation

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).

98 Completion 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.

99 Information 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.

100 Incorrect 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.

101 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.

107 Notice 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.

108 Decision 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.

109 Cancellation 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.

[2018] AATA 5046

25 October 2018

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Immigration

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