1730892 (Migration)

[2019] AATA 6686

1730892 (Migration) [2019] AATA 6686 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730892

MEMBER:Alison Murphy

DATE:23 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 23 October 2019 at 3:16pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) – Subclass 200 (Refugee) – incorrect information – facial recognition – images represent same person – numerous identities – various refugee claims – prior visa applications as child – unaware of incorrect information – recognised as refugee by UNHCR – level of protection not adequate – only one relative in Kabul – removal would breach non-refoulement obligations – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 46A, 100, 101, 107, 109, 376, 499
Migration Regulations 1994 (Cth), r 2.41

CASES

DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
Zhao v Minister for 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 from Afghanistan who claims to have resided in Quetta, Pakistan between 2002 and 2012. He was assessed as a refugee by the UNHCR in [Country 1] in 2012 and applied for an XB-200 offshore humanitarian visa in 2013 while in immigration detention in [Country 1]. The visa was granted to him on June 2013 and he arrived in Australia on August 2013. In December 2013 he was named as the sponsor in an XB-200 offshore humanitarian visa application lodged by his mother and sister, [Ms A, comprising Given Name 1 and Given Name 2] and [Ms B]. Their visas were granted in April 2015 and they arrived in September 2015.

3. On 8 December 2017 the delegate cancelled the applicant’s XB-200 offshore humanitarian visa on the basis that she considered the applicant gave incorrect information in his visa application. In particular she considered the applicant gave incorrect information about his identity, date of birth, visa history, lack of a travel document or national identity card, the date his family left Afghanistan and by stating he had not previously applied for a visa to Australia.  On the same date the delegate cancelled the visas of the applicant’s mother and sister.

   THE REVIEW PROCEEDING

4. The applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The matter was heard together with the review of the cancellation of the visas of the applicant’s mother [Ms A] and sister [Ms B] (AAT case number [number deleted]) and the Tribunal also received oral evidence from those persons. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

6. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificate

7. The Tribunal has before it the applicant’s Departmental files, including both the grant and cancellation files relating to the offshore refugee visas.

8. In the case of the cancellation file, the delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.376 of the Act. Where a certificate is issued under s.376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

9. The certificate states that disclosure of the information would be contrary to the public interest because it would reveal confidential Departmental investigative methods used to detect breaches of the law.

10. At hearing I provided a copy of the s.376 certificate to the applicant and his representative.

11. I am satisfied the s.376 certificate is valid on its face. The documents covered by the certificate evidence investigations undertaken by the Department in relation to the applicant and other persons. Most of the adverse material contained in the certificated documents has been disclosed in the s.107 notice and the delegate’s decision. I note that the certificated documents contain personal information relating to third parties and I have not provided the applicant with a copy of that information. I have discussed with him at hearing some details of that information in so far as it relates to the identity of persons named as secondary visa applicants in the other visa applications which the department suspects include the applicant.

    LEGISLATIVE FRAMEWORK

12. 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.

13. 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.

    Is the s.107 notice valid?

14. The s.107 notice in this case sets out in detail the information given by the applicant in his offshore visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

15. 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?

16. 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.

17. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and can be summarised as follows:

    ·On 6 January 1999, the visa holder was included as a dependent in a Global Special Humanitarian (BA 202) visa application which was refused on 13 February 1999. The provided details were [Applicant Name 1, which includes Surname 1] DOB [Date 1], never married;

    ·On 3 June 2005 the visa holder was listed as a dependent child in a Global Special Humanitarian (XB 202) visa application which was refused on 6 June 2005. The provided details were [Applicant Name 1] DOB [Date 2], never married;

    ·On 9 October 2006, the visa holder was listed as a dependent in a Global Special Humanitarian (XB 202) visa application which was refused on 12 October 2006. The provided details were [Applicant Name 2, which includes Surname 2] DOB [Date 3], never married. Information in that visa application indicated [Applicant Name 2] had three siblings, [Ms C], [Mr D] and [Ms E] and his parents were - [Mr F, comprising Given Name 3, Given Name 4, and Surname 2] and [Ms A Variant 1, comprising Given Name 1, Given Name 2, and Surname 2]. The visa application stated the family left Afghanistan in 2014;

    ·On 19 December 2012, the applicant lodged an offshore humanitarian (XB 200) visa application in which he stated his date of birth was [Date 4] and he had never married or been in a de facto relationship. In that visa application he stated that no person included in the application had ever applied for an Australian visa before, that he did not have a travel or identity document, that he had a fear of returning to Afghanistan and that he left that country [in] January 2002. He provided his UNHCR Resettlement Registration Form and accompanying statement in which he stated he was an Afghan national of Hazara ethnicity and Shia Muslim faith and that he was an unaccompanied minor. He provided details of a land dispute arising out of his father’s inheritance following the death of his grandfather which he stated to be the reason his family fled Afghanistan for Quetta, Pakistan;

    ·Departmental records indicate that the visa holder arrived in Australia as the holder of an XB 200 refugee visa on 13 August 2013, granted on the basis that he satisfied the Minister that he engaged Australia’s protection obligations under the Refugees Convention. His status as an Afghani person was fundamental to this determination;

    ·The notice sets out that the following contrary information has come to the attention of the Department (in summary):

    oThe visa holder was included in three refused Global Special Humanitarian visa applications lodged in 1999, 2005 and 2006. In the first two his date of birth was recorded as [Date 1] and [Date 2] respectively and in the third it was recorded as [Date 3] and his name was listed as [Applicant Name 2] born [Date 3], child of [Mr F Variant 1, comprising Given Name 3, and Given Name 4] and [Ms A Variant 2, comprising Given Name 1, Given Name 2, and Surname 1] (also known as [Surname 2]);

    oThe Department’s Facial Image Comparison Unit has undertaken a review of the two facial images sourced from the visa applications submitted in the name [Applicant Name 1] and [Applicant Name 2] in 2006 and 2013. A Departmental officer who specialises in this field has found that the two images represent the same person;

    oThe applicant stated in his 2013 application that he was [Applicant Name 1], but this information is incorrect as there is evidence before the department that confirms his identity as [Applicant Name 2]. The applicant has used two identities however his identity as [Applicant Name 1] is incorrect;

    oThe applicant stated in his 2013 application that his date of birth was [Date 4], but this information is incorrect as information before the department confirms his identity to be [Applicant Name 2] born [Date 3];

    oThe applicant stated in his 2013 application that he had never applied for a visa to Australia. This information is incorrect as he had previously lodged an application in the name of [Applicant Name 2] in 2006;

    oThe applicant stated in his 2013 application that he did not have a travel or identity card, but this information is incorrect because the 2006 application for [Applicant Name 2] listed a national identity card issued [in] 2006;

    oThe applicant claims to have lived in Afghanistan until [January] 2002, but this information is incorrect because the 2006 application lodged under the identity of [Applicant Name 2] stated that the family left Afghanistan [in] December 2014.

18. The s.107 set out that the above matters indicated the applicant had failed to comply with s.101 by providing incorrect information to the department in his XB 200 Offshore Refugee visa application as to his identity, his date of birth, his visa history, his lack of a travel document or national identity card, and the date his family left Afghanistan. It invited his comment on the possible non-compliance and whether his visa should be cancelled.

19. The applicant did not respond to the s.107 notice, however his mother responded to the s.107 notice issued in her related case (AAT case number [number deleted]). At hearing the applicant maintained that he had no knowledge of the two earlier visa applications (the 1999 and 2005 visa applications) in which his father is named as the main applicant, nor the application made in 2006 which included [Applicant Name 2] (the 2006 application). He denied that he was also known as [Applicant Name 2] or that he was the person referred to by that name included in the 2006 visa application. He maintained his identity is that given by him in the 2013 visa application that is the subject of this review.

    Did the applicant give incorrect information as to his identity in his visa application?

20. As detailed above, the s.107 notice alleges the applicant’s true identity is [Applicant Name 2] born [Date 3] and that he was included in a visa application made under that identity in 2006. The s.107 notice alleges that to the extent the information given by the applicant in his 2013 application is inconsistent with that given by or on behalf of [Applicant Name 2] in the 2006 application, the 2013 information was incorrect. Specifically it is alleged the applicant gave incorrect information in his 2013 visa application as to his identity, his date of birth, his visa history, his lack of a travel document or national identity card, and the date his family left Afghanistan.

21. I have considered the matters identified in the s.107 notice and elsewhere on the departmental file that are said to establish that the applicant and [Applicant Name 2] are the same person and that [Applicant Name 2] is the applicant’s true identity. Those matters are:

    ·A facial image comparison of the photos of the applicant and [Applicant Name 2] sourced from the 2006 and 2013 visa applications;

    ·Purported similarities between the refugee claims made by the applicant in 2013 and the 2006 visa application including [Applicant Name 2];

    ·Similarity in the parents’ names in the visa applications made by the applicant in 2013 and the 2006 visa application including [Applicant Name 2].

22. For the reasons that follow, I am not satisfied on the evidence before me that the applicant was included in the 2006 visa application under the name of [Applicant Name 2] born [Date 3] or that the applicant’s true identity is [Applicant Name 2].

    Facial Imaging Comparison Report

23. The s.107 notice states that the Department’s Facial Image Comparison Unit has undertaken a review of two facial images sources from visa applications in the names of [Applicant Name 1] and [Applicant Name 2] in 2006 and 2013 and found there to be indications that the two images represent the same person. At hearing the applicant denied that he was [Applicant Name 2]. He denied knowing any person by the name of [Applicant Name 2] or any of the other persons named in the 2006 visa application.

24. The Facial Image Comparison Report contained on the departmental file is dated 9 May 2017 and compares two facial images. It does not identify the source of those images, other than to say the request for comparison of those images was received from the delegate who nominated one primary image and a second for comparison. The author of the report states that having examined the images, he is ‘of the opinion that there are indications that they represent the same person’.

25. Having considered the Facial Imaging Comparison Report on the departmental file, I am not satisfied that the images compared are those from the 2006 and 2013 visa applications as stated in the s.107 notice. The report itself states that each image is in the name of [Surname 1] and provides the same ICSE details. The image files are dated 5 April 2013 and 26 April 2013 respectively.

26. Importantly, neither image compared in the Facial Imaging Comparison Report is an image contained in the departmental file regarding the 2006 visa application in which [Applicant Name 2] was included. While that file (with which I have been provided) contains two images of the person said to be [Applicant Name 2], neither is the subject of the comparison in the Facial Imaging Comparison report. Rather it appears to me that the report may have compared two photographs of the applicant sourced from the other visa applications.

27. For this reason I am not satisfied that Facial Image Comparison Report supports an inference that the applicant and [Applicant Name 2] are the same person, nor that [Applicant Name 2] is the applicant’s true identity.

    Purported similarities between the claims of the applicant and [Applicant Name 2]

28. The s.107 notice states that the claims made by the applicant in the 2013 visa application were the same claims put forward in the 2006 visa application which included [Applicant Name 2].

29. I can only assume that statement was made in error. In fact the claims in the two visa applications are almost entirely different.

30. The claims made in the 2013 visa application are briefly summarised in the s.107 notice to the effect that the applicant claims to have fled Afghanistan for Pakistan in 2002 because of a land dispute that arose between his father and paternal uncle following the death of the applicant’s paternal grandfather. It is claimed that the applicant’s brother was killed by his uncle as a result of that land dispute, as a result of which the family left Afghanistan for Pakistan where the applicant remained living until his departure in 2012.

31. The claims in the 2006 visa application are not detailed or summarised in the s.107 notice. They are set out in the Form 842 completed by the main applicant, an [age] year old female, who states her father was a member of the Wahdat party. She states her father fled their village for fear or arrest of death on account of his party membership and remains unaccounted for. She states her mother remarried and she and her siblings were taken into the care of her grandfather, who developed [an illness] and moved the family to Quetta, Pakistan before dying. She talks in general terms about her family’s financial position, conditions in their village in Afghanistan and her fears for herself and her sister regarding their lack of education opportunities and risk of forced marriage.  She makes no reference of any land dispute affecting the family and states the family left Afghanistan for Pakistan in 2004.

32. The only commonality between the two sets of claims is that in each case, the visa applicants identify themselves as Afghan nationals of Hazara ethnicity and Shia religion from Jaghuri district, Ghazni province. DFAT reports that ethnic Hazaras are overwhelmingly of Shia religion and make up around 40% of the population of Ghazni province[1]. In such circumstances I do not consider their similar ethnic and religious profile offers any probative basis for a finding that the applicant and [Applicant Name 2] are the same person, or that [Applicant Name 2] is the true identity of the applicant.

    Similarities in the names of the parents of the applicant and [Applicant Name 2]

    [1] DFAT Country Information Report Afghanistan 27 June 2019 at 3.10

33. The s.107 notice sets out that the applicant was included in a Global Special Humanitarian visa application lodged in 2006 as a dependent child of his parents [Mr F Variant 2,comprising Given Name 3, Given Name 4, and spelling variant of Surname 1] (also known by the surnames [Surname 1] and [Surname 2]) and [Mrs G, comprising Given Name 5, Given Name 1, and spelling variant of Surname 1] (also known by the surnames [Surname 1] and [Surname 2]). It states the review applicant’s name in this application was listed as [Applicant Name 2].

34. To the extent the s.107 notice implies that the 2006 visa application contains the names [Mr F Variant 2, with either Surname 1 or spelling variant of Surname 1] or [Mrs G, with either Surname 1 or spelling variant of Surname 1] that is incorrect.  The 2006 visa application identifies the visa applicants as [Ms C] (the primary applicant), [Mr D], [Ms E] and [Applicant Name 2] (the primary applicant’s siblings) and names their parents as [Ms A Variant 1] and [Mr F]. The 2006 visa application does not suggest that the parents are also known by the family name [spelling variant of Surname 1] or [Surname 1] or that [Ms A Variant 1] is also known as [Mrs G]. The only commonalities in the names of the visa application between the information provided in the 2006 application and the applicant’s 2013 application relates to the given names of the parents. I note that none of the persons included in the 1999 or 2005 applications had the family name [Surname 2].

1. 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.[2]

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

2. It is possible that the commonalities in the given names of the parents in the 2006 and 2013 visa applications are indicative of fraudulent information in one or both visa applications, but it is also possible that they are merely a coincidence and the two visa applications are unrelated. For the reasons set out above, I have not accepted [Applicant Name 2] is the true identity of the applicant, nor that the claims for protection in the two visa applications bear any similarities to each other except in so far as the visa applicants in both cases identify themselves as Afghan nationals of Hazara ethnicity and Shia religion from Jaghuri district, Ghazni province.

3. I consider that at best, the similarities in the given names of the review applicant’s parents in the 2013 application and the visa applicants’ parents in the 2006 application raise a suspicion that they may be the same individuals with different surnames. Even if that is the case, there is no evidence that the correct information is that set out in the 2006 application, rather than that given by the applicant in the 2013 application. In the absence of any other evidence that the two families are connected, I am not satisfied that the applicant is the same person as [Applicant Name 2] or that the applicant was included in the 2006 visa application.

   Conclusions as to identity

4. For the reasons set out above, I am not satisfied that [Applicant Name 2] and the applicant are the same person nor that that the applicant was included in the 2006 visa application under the name [Applicant Name 2]. It follows that I am not satisfied that the applicant provided incorrect information in his 2013 visa application, merely because the information provided by the applicant in the 2013 application differs from that provided by or on behalf of [Applicant Name 2] in the 2006 application. For these reasons I am not satisfied the applicant provided incorrect information about his lack of a travel document or national identity card or the date his family left Afghanistan.

5. There are other reasons to be doubtful about the applicant’s date of birth, most notably that his now deceased father (or possibly the sponsor, who is not identified in the material before me) appears to have provided different dates of birth for the applicant in the 1999 and 2005 visa applications.

6. At hearing the applicant gave evidence that he believed his date of birth was as stated in the 2013 application because before he left Pakistan, his father showed him the last page of the family Koran which recorded his date of birth as [Date 4]. He stated he had no knowledge of how or why his date of birth was recorded differently in the 1999 or 2005 visa applications (noting he was aged approximately [age] and [age] when these applications were made).

7. Ultimately the inconsistencies in the dates of birth in the earlier applications remain unexplained. However for the following reasons I am not satisfied that the date of birth given by the applicant in the 2013 visa applicant is incorrect:

   ·The applicant’s date of birth as stated in his 2013 visa application is consistent with the UNHCR Refugee Certificate issued to him [in] 2012 and renewed [in] 2013;

   ·The applicant’s date of birth as stated in his 2013 visa application is consistent with the taskera issued to him by the Afghan authorities in 2018;

   ·The applicant was subjected to an age assessment by the UNHCR in [Country 1] dated [April] 2013. The assessment report records that he stated his date of birth was written on the back of the family Koran and approximately 12-18 months earlier his father told him he was [age] years old. The assessment report also noted that the applicant’s responses to questions about his age, his family details, his education and employment were consistent with his family history and with the age of his brother, as well as his social history and his general circumstances. The assessment report concluded that the applicant’s physical appearance, behaviour, his demonstrated lack of maturity were consistent with that of a juvenile under the age of [age] years old;

   ·While there have been inconsistencies in the dates of birth given for the applicant between the 1999, 2005 and 2013 applications, there is no evidence that any of the inconsistent dates of birth given for the applicant are correct.

8. I note also that the s.107 notice sets out that the applicant and his family are believed to have left Afghanistan [in] December 2014 and not 2002 as stated by the applicant, even though the department’s movement records show the applicant had been in Australia for some eighteen months by December 2014 and it is apparent from the departmental file that he had been in [Country 1] for some time before that.

9. For these reasons I am not satisfied the applicant provided incorrect information in his 2013 visa application about his identity, his date of birth, his lack of a travel document or national identity card, or the date his family left Afghanistan.

   Did the applicant provide incorrect information about whether he had previously applied for a visa to Australia?

10. The s.107 notice alleges that the applicant was included in three previous applications for global humanitarian visas lodged in 1999, 2005 and 2006. In respect of the 1999 and 2005 applications, it is alleged the applicant was included under the identity of [Applicant Name 1]. In respect of the 2006 visa application, it is alleged that the applicant was included under the identity of [Applicant Name 2] born [Date 3].

    The 1999 and 2005 visa applications

11. The 1999 and 2005 applications each included a secondary applicant by the name of [Applicant Name 1]. I note the discrepancies in the various visa applications as to the date of birth given for [Applicant Name 1]. In the 1999 application his date of birth was given as [Date 2], while in the 2005 application his date of birth was given as [Date 1]. It is not clear whether the information in the 1999 and 2005 visa applications was provided by the main applicant (the applicant’s now deceased father) or the sponsor and I note that on any assessment of the evidence the applicant was a young child at the time of each of those visa applications.

12. Notwithstanding those discrepancies, I am satisfied that the applicant along with other members of his family were included in two refused Global Humanitarian visa applications lodged in 1999 and 2005, given his father is named as the main applicant and the applicant, his mother and sister are named as his dependants (along with a number of other dependants). The departmental files relating to those visa applications have not been provided to the Tribunal and the provided material does not contain copies of the application forms or any other documents from those files. Rather the information set out in the s.107 notice appears to have come from ISCE screens reproduced in the material covered by the non-disclosure certificate.

13. Consequently I cannot establish who signed the visa applications lodged in 1999 and 2005, what relationship the other dependents named in the application were stated to have with the main applicant (the applicant’s deceased father), the identity of the proposers or what other documents may have been provided in support of the applications. I note that the applicant and his mother denied knowing any of the other persons named as dependents in the 1999 and 2005 visa applications.

14. However as I am satisfied that the applicant was included in those visa applications, it follows that I am satisfied that the applicant provided incorrect information in the 2013 visa application when he stated that he had not previously applied for a visa to Australia. This is because section 100 of the Act makes clear that an answer to a question is incorrect even though the person providing the answer did not know that it was incorrect.

    The 2006 visa application

15. For the reasons given above, I am not satisfied the applicant was the subject of the 2006 visa application under the name of [Applicant Name 2], nor am I satisfied that [Applicant Name 2] is the true identity of the applicant.

    Conclusion on non-compliance

16. Given my finding that the applicant provided incorrect information in the 2013 visa application when he stated that he had not previously applied for a visa to Australia, I find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

19. The correct information: I consider the correct information is that the applicant was included in two Global Humanitarian visa applications lodged in 1999 and 2005.

20. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).

21. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: Although there is no decision statement in the Department’s materials provided to the Tribunal, the s.107 notice set outs that the applicant’s visa was granted on the basis that the applicant satisfied the Minister that he engaged Australia’s protection obligations under the Refugees Convention and that his status as an Afghani person was fundamental to this determination.

22. Nothing in the s.107 notice or the cancellation decision suggests that had it been known that the applicant was included in the earlier visa applications, it would have impacted on the decision to grant him the visa. Nor is there anything in the s.107 notice or the Departmental file that would suggest the applicant and his family are not Afghan citizens or that they are citizens of any other country.

23. Having found the applicant’s identity is as set out in the 2013 visa application, and there being no suggestion that he is not an Afghani person or that any of the refugee claims made by the applicant in that visa application were incorrect, I am not satisfied the decision to grant the visa was based in any part on the incorrect information.

24. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2013 visa application.  He has consistently denied knowing he had been included in the earlier visa applications and he was aged [age] and [age] at the time those visa applications were made.

25. The present circumstances of the visa holder: The applicant is a [age] year old male living with his mother and adult sister son in [Location 1], [State 1]. He attended school in Australia until 2015. When he was successful in getting a job in a [factory] the family moved to [State 1]. He worked [in this] factory for 2.5 years before getting a job [in another occupation] where he continues to work. A letter from the head of [Organisation 1], [Mr H] states the applicant is active in that community, participating in [named festivals] and other ceremonies in [City 1]. [Mr H] states the applicant is of great character and positive personality who is kind, polite and positive in his attitude and behaviour.

26. The applicant’s mother keeps house for the applicant and his sister, while his sister has undertaken a number of training courses in Australia and currently works from home [in an occupation]. Her husband lives in Kabul with his family, where he is [employed in a position] with his own [business].

27. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The delegate considered the applicant did not seek to correct the incorrect information before the visa was cancelled. As I accept the applicant was not aware of the earlier visa applications, being aged between [age] and [age] at the time they were made, I accept he had no opportunity to correct the incorrect information before his visa was cancelled.

28. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that there is no information suggesting any other non-compliance by the applicant.

29. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2013 and six years have elapsed since then.

30. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

31. Any contribution made by the holder to the community: As referred to above, the applicant is active in [Organisation 1].

    Other factors to be considered

32. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

33. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia[3].

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements:

    [3] DMH16 v MIBP [2017] FCA 448

34. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

35. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

36. In relation to the Refugees Convention, the Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    -    there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    -    the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

37. In this case the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.

    Country of nationality

38. The applicant has at all times claimed to be an Afghan national who resided in Quetta, Pakistan as a refugee between 2002 and 2015. As set out above, the s.107 notice sets out that the applicant’s identity as an Afghani person was fundamental to the decision to grant him the visa. This statement would seem to suggest that the delegate suspected the applicant may not be an Afghan national.

39. However I cannot find any basis in the material for such a suspicion. In particular I cannot locate anything in the s.107 notice, the cancellation decision or any other document contained in the Departmental file that would suggest the applicant is not an Afghan citizen, that he is a national of any other country or even that inquiries or investigations are being undertaken as to his country of nationality. He has produced an original taskera attesting to his Afghan citizenship and he was found to be an Afghan national by the UNHCR in [Country 1] in 2012.

40. There being no evidence before me that would indicate the applicant is a citizen of any other country, I find he is a citizen of Afghanistan and I have assessed his claims against that country.

    Well-founded fear of persecution

41. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity, his Shia religion and a land dispute involving the applicant’s now deceased father and his father’s brother.

42. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.

    The applicant’s personal background

43. The applicant is a [age] year old male originally from [a] village in the Jaghuri district of Ghazni province, Afghanistan. He was [age] years old when his family left Afghanistan for Quetta, Pakistan following the death of his brother in a land dispute between the applicant’s father and his father’s brother. He travelled to [Country 1] where he was assessed by the UNCHR as an unaccompanied minor of Afghan nationality and recognised as a refugee in 2012 and arrived in Australia in 2013.

44. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion. The applicant and members of his family have participated in the visa grant and cancellation processes with the assistance of interpreters in the Hazaragi language and have the distinct visual features shared by Hazaras. As the applicant left his village in Jaghuri district as a young child and has no remaining relatives there, I accept that if he is removed to Afghanistan he will not return to his village but he will relocate to Kabul where his sister’s husband lives with her family.

1. I note that in any case, the DFAT report indicates the security situation in the applicant’s home area of Jaghuri district, Ghazni province deteriorated significantly in 2018. Ghazni province forms part of the Hazarajat. While the security situation in the Hazarajat has been considerably better than in most other parts of Afghanistan in recent years, DFAT reports that security conditions in some parts of the Hazarajat deteriorated significantly in 2018. This included large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, leading to protracted fighting and large scale displacement since August 2019. It reports the Taliban began offensive operations in the Jaghuri and Malestan districts of Ghazni province, with UNAMA verifying 20 civilian deaths and six injuries in Jaghuri, while Ghazni province reportedly saw an 84% overall increase in civilian casualties in 2018[4].

   [4] DFAT Country Information Report Afghanistan 27 June 2019 at 2.60 – 2.69

2. In light of the deteriorating security situation in Ghazni province as well as the applicant’s personal circumstances, I find that if the applicant’s visa remains cancelled he will return to Kabul where his sister’s husband resides.

   The applicant’s fear of harm in Afghanistan

3. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity, his Shia religion and a land dispute involving the applicant’s now deceased father and uncle.

4. I consider the applicant has a well-founded fear of persecution in Afghanistan for the essential and significant reasons of his Shia religion and his Hazara ethnicity. In making that assessment I note the contents of the most recent DFAT report dated 27 June 2019 as well as other sources summarised below.

   The general security situation in Afghanistan

5. The DFAT report indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence[5].

   [5] Ibid at 2.52 – 2.59

6. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[6].

   [6] DFAT Country Information Report Afghanistan 27 June 2019  at 2.52 – 2.59

7. DFAT reports that UNAMA has documented 32,114 civilian deaths and 59,561 civilian injuries across Afghanistan since 2009, but given UNAMA’s stringent methodology for recording conflict-related casualties the true figures are likely to be higher. Conflict related civilian casualties rose considerably between 2013 and 2014, and have remained high in subsequent years. DFAT reports that of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, which increased by 48% in 2018, causing 1,404 deaths and 2,721 injuries[7];

   [7] Ibid at 2.60 – 2.69

8. UNAMA documented 271 incidents of conflict-related abductions carried out by AGEs in 2018, affecting 1,857 civilians and resulting in the death of 53 and the injury of 33[8]. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence[9].

   The applicant’s fears on the basis of his ethnicity and religion

   [8] Ibid at 2.75 – 2.80

   [9] Ibid at 2.70 – 2.74

9. DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, with the worst recorded massacre in recent history occurring in 1998, when the Taliban massacred at least 2,000 Hazara in Mazar-e-Sharif, leading many Hazara to flee Afghanistan[10].

   [10] Ibid at 3.8

10. DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains however the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups.

11. DFAT assesses that Hazara residing within the Hazarajat, particularly in Bamiyan province, face a lower risk of conflict related violence than those residing in other parts of the country, particularly Kabul. It states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’[11].

    [11] Ibid at 3.7 – 3.16

12. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[12].

    [12] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42 – 3.46

13. In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city[13].

    [13] Ibid at 3.29 – 3.35

14. In June 2019, DFAT assessed that Shia face a high risk of being targeted by Islamic State Khorasan Province (ISKP) and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul[14]. Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack[15].

    [14] Ibid at 3.29 – 3.35

    [15] >

    In August 2019, the UK Home Officer reported that attacks by insurgent groups, particularly ISKP, have significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads[16].

    [16] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at

    Analysis of the applicant’s claims

15. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia he will return to an ethnic Hazara neighbourhood in Kabul, where his sister’s husband lives.

16. The DFAT report indicates that Hazaras and Shias in that city have been subjected to ongoing major attacks since mid-2016, that those attacks are religiously motivated and have recently targeted Shia majority or ethnic Hazara neighbourhoods. DFAT assesses that Shias in Afghanistan face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities, including Kabul[17]. DFAT also reports that Hazaras have distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan and are widely perceived as being supporters of the government[18]. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban, and that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[19].

    [17] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29 – 3.35

    [18] Ibid at 3.7 – 3.16

    [19] Ibid 3.42 – 3.46

17. In view of the DFAT advice, I accept there to be a real chance the applicant will face serious harm if he returns to Kabul, now or in the reasonably foreseeable future, for the essential and significant reasons of his Shia religion and Hazara ethnicity.

18. In this case, the harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect him from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. 

19. As to whether the applicant will receive protection from the Afghan state from the harm that he fears, DFAT indicates that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest[20]. In such circumstances I find that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect[21].

    [20] Ibid at 5.1 – 5.4

    [21] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1

20. It follows that I accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion and Hazara ethnicity if he is returned to Kabul, now or in the reasonably foreseeable future.

100.   A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so.  What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country[22]. 

[22] SZATV v MIAC (2007) 233 CLR 18

101.   I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. I have accepted he has no living relatives in Afghanistan except his sister’s husband in Kabul. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence, the fact that the applicant has not lived in Afghanistan since he was a young child and has no relatives or connections outside of Kabu, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

102.   For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity and Shia religion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations. It is therefore not necessary for me to go on and consider the applicant’s other claims to protection.

103.   Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening.

104.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant lives with his mother and sister in [Location 1], [State 1]. His sister is married to an Afghan man resident in Kabul Afghanistan, whom she hopes to sponsor to Australia on a partner visa.

EXERCISE OF DISCRETION

105.   Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa.  In particular I give significant weight to the following matters:

·Had the correct information about the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2013, I am satisfied the applicant would still have been recognised as a refugee on the basis of his profile as a young male of Afghan nationality, Hazara ethnicity and Shia religion, who had resided as a refugee in Quetta, Pakistan since 2002 and been recognised as a refugee by the UNHCR in [Country 1] in 2012;

·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara race and Shia religion;

·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. I am satisfied that his removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;

·The applicant lives with mother and sister, who were granted offshore refugee (XB 200) visas in 2013 on the basis of his sponsorship. Their visas have also been cancelled and are the subject of a review before this Tribunal;

·Nothing in the material before me suggests the applicant has breached any Australian laws since arriving in  Australia, nor that he otherwise poses any threat or risk to the Australian community. Rather the material before me indicates he is a valued member of his local Afghan Hazara community.

CONCLUSIONS

106.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

107.   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.