1732212 (Migration)

[2018] AATA 2787

1732212 (Migration) [2018] AATA 2787 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732212

DIBP REFERENCE(S):  BCC2015/2715380

MEMBER:Christopher Smolicz

DATE:12 July 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 12 July 2018 at 4:49pm

CATCHWORDS

Migration – Cancellation – Subclass 202 (Global Special Humanitarian) visa – Incorrect answers – Whereabouts of first named applicant’s husband – Husband’s disappearance – No contact with husband for five and a half years – Husband found by friend – Credible witness – Difficulties searching for husband as a single women – Decision under review set aside and substituted – No jurisdiction with secondary applicants

LEGISLATION

Migration Act 1958 (Cth), 101, 107, 109, 140

Migration Regulations 1994 (Cth) Schedule 2 cl 202.222

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate found the applicant did not comply with s.101(b) of the Act and cancelled the visa on the basis that she had provided incorrect answers in her Offshore Humanitarian visa application lodged on 25 May 2011.

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

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants appeared before the Tribunal on 10 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A].

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. 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

   Background

9. The applicant is [age] years old. She was born in Afghanistan and is from the Hazara ethnic group. She has had no formal education and cannot read or write in her own language.

10. On 25 May 2011 the applicant lodged an application for a Subclass 202 (Global Special Humanitarian) visa. The Subclass 202 visa is applicable to offshore applicants. An applicant must lodge an Application for Offshore Humanitarian Visa (Form 842) and be included (proposed) in a Refugee and Special Humanitarian Proposal (Form 681) which must to be lodged by an Australian citizen or permanent resident.

11. The applicant was proposed for the visa by her son [Mr A]. [Mr A] also proposed his [biological] siblings (one of whom has subsequently died and was withdrawn from the application). [Mr A] was [age] years old at the time he lodged the application. He arrived in Australia by boat in 2010 and was granted a Subclass 866 protection visa on 12 January 2011.

12. On 6 October 2013 the applicant and [several] of her children were granted Subclass 202 visas and arrived in Australia on 12 December 2013.

13. On 23 June 2014 the applicant lodged an application to sponsor her husband for a Subclass UF-309 Partner visa.

14. Included with the application was a statutory declaration in which the applicant declared that in early 2008 her husband went missing from Maidan Province where they owned property. Her family unsuccessfully searched for her husband for one and half years. In about December 2010 the family moved to Pakistan. The applicant declared that in about April 2014 [Mr B] a family friend from Australia travelled to Afghanistan and met her husband and was able to provide her with his contact details. The applicant declared that her husband was initially abducted by the Taliban but eventually able to travel to [Country 1] before moving back to Afghanistan in 2011.

15. On 23 June 2014 the applicant’s husband lodged a Form 80 (Personal Particulars for Character Assessment) form in support of his Subclass 309 visa application. He declared that he was employed as a [occupation] in [Country 1] from January 2008 to until January 2011. The applicant’s husband also lodged a form 47SP (Application for migration to Australia by a partner) in which he provided the same information.

16. On 29 July 2014 the applicant travelled to Afghanistan to meet with her husband.

17. The Department of Immigration alleged that information provided by the applicant’s husband in Forms 80 and 47SP conflict with the applicant’s claim that her husband went missing in 2008.

18. On 16 October 2017 the Department issued a Notice of Intention to Consider Cancellation (the notice). The notice was issued under s.109 of the Act.

    The law

19. 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.

20. 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.

    Did the notice comply with the requirements in s.107? 

21. In the present case, 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. The applicant’s agent has conceded that the notice complied with the regulations.

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

22. 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 in the following respect.

23. On 25 May 2011 the applicant completed Form 842. In response to question 11, ‘Do you have a husband, wife de facto partner or any dependants who normally live with you and are not included in this application?’, the applicant answered, ‘[Mr C], [Date of Birth], Spouse, Has been missing since 2008’.

24. The delegate claims this information is incorrect because the applicant’s husband was not missing but was living in [Country 1] from 2008 to January 2011 and in Afghanistan from that point onwards. The delegate could not identify any obstacles which would have prevented the applicant’s husband from maintaining contact with the applicant during this time. The delegate concluded that the applicant’s claim that she was unaware of her husband’s location was not credible.

25. In response to question 25, ‘What is the name of the country you have a fear of returning to?’, the applicant answered ‘Afghanistan’. The delegate found this answer to be incorrect because at the time of the application lodgement date the applicant’s husband was living in Afghanistan and it is ‘likely’ that she would have known of his whereabouts and lived with her husband as one family unit.

26. In an interview conducted with the Department on 30 May 2013 the applicant advised that her husband went missing five and half years ago in Maidan Province, Afghanistan, and she subsequently moved to Peshawar, Pakistan, two years earlier with her children. The delegate claims that information before the Department ‘suggests’ that he was not missing and he continued to be a member of the applicant’s family unit.

27. The Department allege that submissions dated 12 June 2014 provided by the applicant’s migration agent in support of the Subclass 309 application further contradict the applicant’s initial claims. In particular the agent stated that the visa holder was separated from her husband following his abduction by the Taliban and she believed he had been executed. The Department further alleges that these claims were not declared earlier in her Subclass 202 visa application, where the applicant states that her husband went missing in 2008 and makes no reference to the Taliban.

28. The Department claim the applicant’s husband was not missing, nor had he been abducted by the Taliban. The Department allege that the applicant’s husband was residing in [Country 1] from January 2008 to January 2011, which is inconsistent with the applicant’s claim that he went missing in 2008.

29. The Department claim the visa holder’s Subclass 202 visa was granted on the basis she faced substantial hardship in Afghanistan because her husband was deceased and she was a single mother with [several] children to look after. The visa holder claimed that she relocated to Pakistan in order to live in a safer environment, however, as a single mother of [several] dependent children, she claimed she was unable to support herself and her situation was becoming increasingly untenable. She claimed that she could not return to Afghanistan because her husband was missing and she wanted to travel to Australia and be reunited with her son.

30. According to the delegate’s decision, in order for the visa to be granted the criteria for Subclause 202.222(2) needed to be satisfied at the time of decision. The delegate noted the criteria in regard to compelling reasons, which include an assessment of the level of discrimination or persecution the applicant is subject to in their home country (Afghanistan).[1] The delegated noted that at the time the applicant lodged her visa application (25 May 2011) her husband had returned from [Country 1] to Afghanistan in January 2011 and by the time the interview was conducted with the applicant on 30 May 2013 her husband would have been there for over two years.

    [1] The Tribunal notes that at the time of the decision, the criteria for the Subclass 202 visa do not require the applicant to establish a fear of persecution in the home country as was stated in the delegate’s decision.

31. The Department was of the view that had the delegate who granted the applicant the visa become aware that her husband was still part of the family unit, was freely living in [Country 1], had returned to Afghanistan and was ‘likely’ still providing both financial and emotional support, it is possible the applicant’s humanitarian visa may not have met the relevant criteria.

32. On 25 October 2017 the applicant, with the assistance of her agent, responded to the s.107 notice. The applicant denied any non-compliance and submitted that the Department’s identification of possible non-compliance is not based on any evidence but rather purely supposition and flawed reasoning.

    Tribunal hearing

33. The Tribunal was provided with statutory declaration from the applicant, her son ([Mr A]) and a transcript of an interview with [Mr C] (the husband) taken by the applicant’s agent. The Tribunal also took evidence from the applicant and her son at the hearing.

34. The applicant and [Mr A] presented at the hearing in a manner the Tribunal perceived to be truthful and credible. The Tribunal finds that their evidence was consistent with the country information applicable to their particular circumstances detailed below. The Tribunal has decided to wholly accept the applicant’s evidence and finds that she has not provided incorrect answers in the manner particularised in the notice. The Tribunal’s reasons are set out below.

35. The applicant submitted that she married her husband in Maidan Wardak Province.

36. They inherited land from her husband’s father. Her husband worked the land as well as working the land of other farmers. They experienced a lot of trouble from Kuchi nomads and the security situation was not good in their home area.

37. In about 2008 they moved to [Kabul], but continued to return to the home area two or three times a year to tend to their land. It started to become too dangerous for the whole family to return to Wardak. In early 2008 the applicant’s husband travelled by bus to Wardak and they never heard from him again.

38. The applicant went to the bus station to check if they had any news about the buses travelling to Wardak province that day. They were told that some buses had been stopped by the Taliban. The applicant believed that her husband must have been killed, however, in her application for the Subclass 202 visa she said he was missing because she had no definite news that he was dead.

39. The applicant said that soon after her husband went missing her lease came to an end and she had to move to new premises in Kabul. She continued to live in Kabul with her children for about two and half years without her husband. Her elder sons were working and financially supporting the applicant and their siblings.

40. In 2010 her son ([Mr A]) left Afghanistan and travelled to Australia. [Mr A] gave credible evidence about how he was able to borrow money to fund his trip to Australia. He arranged that he would contact his mother when he arrived in Australia by calling a telephone kiosk in Kabul and leaving his details. He told his mother to regularly attend at the kiosk and ask if he had called. He arrived in April 2010 and was able to make contact with his mother and told her to leave Afghanistan and travel to Pakistan.

41. The applicant said she took part in a short interview with the Department’s office in Islamabad (30 May 2013). She told the truth that her husband had been missing for five and half years in Kabul, and that she came to Pakistan two years ago and had been living in Peshawar since they arrived. She told the Department that her son ([name deleted]) went to Quetta to find work and was killed in a bomb attack and was withdrawn from the Subclass 202 visa application.

42. The applicant said that on her Subclass 202 form she declared that she feared returning to Afghanistan. When questioned at the hearing she confirmed that she fears persecution in Afghanistan because she is a Hazara Shia Muslim.

43. The applicant declared that she had no contact with her husband while he was working in [Country 1]. She did not know he was there until April 2014 when a friend, [Mr B], travelled back to Afghanistan and while visiting Kabul met her husband. [Mr B] had not previously known the applicant’s husband and it was only through conversation did he realise that his wife and children were in Australia. [Mr B] provided him with their contact details.

44. In support of this evidence the applicant has provided the Tribunal with a transcript of an interview between [Mr B] and the applicant’s agent. The Tribunal was also provided with a photograph of [Mr B] and the applicant’s husband taken in Kabul on 14 June 2014. The Tribunal has accessed [Mr B]’s movement details which confirm that he departed Australia on 3 April 2014 and was in Afghanistan at the time the photo was taken.  

45. The applicant made contact with her husband in July 2014 when she travelled to Afghanistan for three months. She has subsequently made several trips to Afghanistan.

46. It was only after they were reunited in 2014 that her husband was able to tell her details about what happened to him in 2008. Her husband told her that when he was travelling by bus from Kabul to Wardak they became aware that the Kuchi nomads were ahead. The bus stopped and the passengers went to hide in the local farms. A fight broke out and the Kuchi started firing at them. They tried to escape from one village to another. They remained in one village for about 40 days. He was only able to return to his village about three to four months later and then returned to Kabul but could not find his family. He was subsequently offered work in [Country 1] in 2008 and left Afghanistan. He had no knowledge that his wife children had left Kabul and relocated to Pakistan.

47. [Mr A] gave evidence that when he applied for the protection visa in Australia he did not know whether his father was dead or alive. When he filled in his form he declared that his father was missing because he was told that if he had no evidence to confirm that he was dead, that was the appropriate answer.

48. [Mr A] gave evidence that [Mr B] was his employer in Australia. [Mr B] knew his father was missing and treated him like a son. [Mr B] told [Mr A] that he would ask questions and look for his father when he travelled to Afghanistan. [Mr A] gave evidence about the time he first spoke to his father by telephone from Australia. He was able to show the Tribunal a photograph of his father on his mobile phone that was taken by [Mr B] and sent to him in Australia. [Mr A] said his father told him about the efforts he made to look for his family when he was in Kabul. He would return to their old rented premises and no one was able to tell them where his family had moved.

49. The applicant gave evidence that she had no other family in Afghanistan and they did not own any mobile telephones in 2008. When her husband went missing there was no means of remaining in communication.

    Findings

50. The Tribunal has had regard to the s.107 notice and the evidence presented at the hearing and finds that the applicant provided truthful information when she completed Form 842 and declared that her husband was missing since 2008 (Q.11). The Tribunal finds that the applicant provided truthful information when she declared that she fears returning to Afghanistan (Q.25). The Tribunal is not satisfied the applicant provided an incorrect answer when she was interviewed on 30 May 2013 by the Department’s office in Islamabad and said her husband went missing five and half years ago in Maidan Province, Afghanistan, and she subsequently moved to Peshawar, Pakistan, two years earlier with her children.

51. The Tribunal finds that the applicant correctly declared that her husband was missing when she applied for the Subclass 202 visa. The Tribunal finds that the applicant’s evidence has been consistent in this regard. The Tribunal finds that the applicant only became reunited with her husband when [Mr B] located him in Kabul in April 2014.

52. As detailed above the Tribunal accepts that the applicant’s husband went missing in 2008 when he was traveling by bus from Kabul to Wardak. The Tribunal accepts that the applicant was told that the bus was attacked by Kuchi nomads who are affiliated with the Taliban. The Tribunal accepts that the applicant suspected that her husband may have been killed at the time but had no evidence.

53. The Tribunal has had regard to the following country information and finds that it supports the applicant’s evidence that Kuchi nomads posed a threat to Hazaras traveling from Kabul to Wardak in 2008.

54. Specifically, country information confirms that the Hazara districts of Wardak province have, since 2007, been the scene of ongoing violent disputes between Hazara farmers and Pashtun nomads called ‘Kuchis’. These disputes have their origins in the late 1880s with the government massacre of Hazara communities and the awarding of Hazara ancestral land to Kuchi nomads.[2] Hazara residents of Wardak and Bamyan provinces accuse Kuchi herders of invading their villages, damaging farmlands and property. Kuchis accuse Hazaras of denying their centuries-long right to pasture land for ethnic reasons. Most Kuchis rely on animal husbandry for their livelihoods and have found that their access to pasture has diminished over the past three decades due to a combination of economic and social and political factors.[3] Since 2007 the conflict between Kuchis and Hazaras has become more violent, particularly in the two Behsud districts of Wardak province during the summer months. Landinfo[4] indicates that the conflict is characterised by random, violent attacks caused by Kuchi nomads entering Hazara areas in the summer months.[5]

    [2] Danish Immigration Service 2012, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March, p. 46 < Accessed 4 October 2012 <CIS23406>; Fioriti, J 2012, ‘Afghan nomad clashes raise fears of ethnic strife’, AFP, 6 August, Reliefweb website <

    [3] ‘Kuchi minority complain of marginalization’, 2010, IRIN, 24 November <

    [4] Independent body within the Norwegian Immigration Service. 

    [5] Landinfo 2011, Afghanistan: The conflict between Hazaras and Kuchis in the Beshud Districts of Wardak Province, 6 June, p. 6 < > 

1. In March 2012, the Danish Immigration Service cited advice from Afghanistan International Human Rights Commission (AIHRC) that in past years the conflict has been particularly destructive in the districts of Hisa‐I‐Awali Bihsud, Markazi Bihsud and Day Mirdad of Wardak Province and Nawur district in Ghazni Province. According to the AIHRC, villages have been destroyed and 2,000 Hazara families have left these districts for Kabul and Mazar. The AIHRC claims ‘[t]he conflict erupted each year from 2007 up to 2010, but in 2011 there have been fewer disputes’.[6] A more recent report in June 2012 claimed that the conflict between Hazaras and Kuchis had escalated with up to 2,000 Kuchi raiders, allegedly aided by the Taliban, attacking Hazara villages in the Kajab valley in Markazi Bihsud district of Wardak Province.[7]

   [6] Danish Immigration Service 2012, Country of Origin Information for Use in the Asylum Determination Process, March, p.46 <

   [7] Fioriti, J 2012, ‘Afghan nomad clashes raise fears of ethnic strife’, AFP, 6 August, Reliefweb website <

2. Professor Maley[8] provided the following comments on the security situation for Hazara’s traveling by road:

   [T]ravel for Hazaras remains extremely dangerous, and claims that roads are open need to be treated with great caution. On 3 December 2011, I received the following observation from a very highly respected Kabul-based observer: 'Dozens of Hazaras have been killed or abducted and never heard of while travelling between Ghazni and Jaghuri and also through Wardak province to Behsud and Bamyan. Ghulam Hussain Naseri, a Hazara member of parliament from Behsud, reported on November 10 that 10 Hazaras were forced off vans and buses going to the Hazarajat in Wardak and killed in dreadful manners in front of other travelers during the preceding 10 days.[9]

   [8] William Maley, AM is a Professor of Diplomacy at the Asia-Pacific College of Diplomacy at the Australian National University. He has published extensively on Afghan politics for over three decades.

   [9] ‘On the Position of the Hazara Minority in Afghanistan’, 7 December 2011 <bmrsg.org.au/wp.../2011/10/Maley-Hazaras-Opinion-Updated2.pdf>

3. The Tribunal finds that the fact that the applicant’s husband was working and living in [Country 1] from 2008 to January 2011 is not inconsistent with her belief, at the time, that he was missing and possibly killed.

4. Further, the Tribunal is satisfied that there were genuine obstacles which prevented the applicant and her husband from maintaining contact with each other during this time. The Tribunal accepts that the applicant did not have access to a mobile phone in 2008 and the applicant was forced to move from her rented premises and relocate soon after her husband went missing. The applicant and her family relocated to Pakistan. The Tribunal notes that there are estimated to be between 600,000 and 900,000 Hazaras living in Pakistan, mostly in and around the city of Quetta in Balochistan Province.[10]

   [10] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March, s.2.9. 

5. The Tribunal also finds that the applicant’s evidence needs to be assessed against the history of conflict and insecurity which have been the main drivers of internal displacement in Afghanistan. Apart from internal displacement due to the conflict in Afghanistan, Kabul City saw large flows of Afghan refugees returning from neighbouring countries, putting further strain on the city’s services. At the same time, humanitarian aid over recent years decreased resulting in less support and services, traditionally provided for by NGOs.

6. In particular, the Tribunal has had regard to the following information provided by the UNHCR about internally displaced persons (IDP) in Afghanistan:

   IDPs remain among the most vulnerable groups in Afghanistan; many – especially in conflict-affected rural areas – are beyond the reach of humanitarian organizations. Among IDPs, women, children, elderly persons and persons with disabilities are especially vulnerable. Afghanistan is experiencing a period of rapid urbanization; many IDPs end up in large urban centres that have limited absorption capacity and where access to basic services remains a major concern. The lack of efficient urban policy and regulatory frameworks, as well as weak and ineffective governance, have reportedly contributed to increased poverty and inequality in urban areas.[11]

   [11] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, HCR/EG/AFG/16/02 <>

   Professor Maley holds the view that it is a mistake to conclude that Kabul is safe for Hazaras. He cites the December 2011 suicide bombing attack against Shia Afghans, mostly Hazaras, who were commemorating the Ashura festival in downtown Kabul which killed at least 55 people, with Pakistani Sunni extremist group Lashkar-e Jhangvi claiming responsibility. He states that to depict this attack as an isolated incident misses the underlying history of antagonism towards Hazaras that is pertinent to assessing what the future holds.[12]

   [12] Professor William Maley AM, ‘On the Return of Hazaras to Afghanistan’, 16 March 2017 <>

   The Tribunal finds that the applicant, as an internally displaced single Hazara woman would have faced genuine obstacles searching for her husband in Kabul during this time.

7. In assessing the applicant’s evidence the Tribunal also finds it relevant to look at the eligibility criteria for a Subclass 202 visa and whether there was some advantage for the applicant to declare her husband was missing as is suggested by the delegate.

8. The Tribunal has regard to information located on the Department’s file regarding the 202 visa application.[13] Correspondence confirms that [Mr A] was represented by the Legal Services Commission [when] he lodged the ‘Split family humanitarian’ visa application.  He was an unaccompanied minor and a ward of the Minister for Immigration under the care of [Refugee] Services at the time.

   [13] File no. OSF2001107128 p. 29.

9. [Mr A] gave evidence at the hearing that he only proposed his mother and siblings for the Subclass 202 visa because at the time he believed his father missing, presumed dead. The Tribunal accepts [Mr A]’s evidence that if he knew his father was alive and not missing he would have included him in the application. Importantly, the Tribunal finds that as a minor he was able to sponsor immediate family members which included both his parents for Subclass 202 visa.

10. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

12. The Tribunal has no jurisdiction with respect to the other applicants.

    Christopher Smolicz
    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.