1732389 (Refugee)

[2019] AATA 3361

1732389 (Refugee) [2019] AATA 3361 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732389

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Nicole Burns

DATE:23 May 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 866 (Protection) visa.

Statement made on 23 May 2019 at 11:09am

CATCHWORDS
REFUGEE – cancellation – protection visa – Ethiopia – political opinion – Ethiopian People’s Revolutionary Democratic Front – Oromo Liberation Front – social group – Oromo – returned to home country after applying for protection visa – health problems – emotional issues – parenting difficulties – compassionate and compelling reasons – kept low profile – decision to return not far-fetched – did not provide incorrect information – coherent and consistent evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 116
Migration Regulations 1994 (Cth), condition 8559

CASES
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that they were satisfied that the applicant provided incorrect answers in her protection visa application in breach of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] who is the father of the applicant’s two children, and Pastor [B] from her church. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. She attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercising of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 7 June 2017 which advised the applicant that her visa may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (visa applications to be correct) of the Act. She was advised to respond in writing. In response the applicant’s representative provided written submissions dated 21 June 2017 and 8 August 2017, a statutory declaration made by the applicant dated 10 August 2017 and supporting documents.

9. 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 of the Act complied with the statutory requirements.

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 as follows.

    Section 101(b) – visa applications to be correct

11. The non-compliance identified and particularised in the notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to her protection visa application, lodged on 6 July 2012.

12. The notice refers to answers the applicant provided in response to specific questions in the application form. Specifically at question 46 – about what she fears if she goes back to (Ethiopia) – the applicant stated:

    I am fearful of returning back to Ethiopia because of unforeseen personal circumstances that have developed since I have left the country. Since I left the country my residential property has been raided by government forces and my [sibling] has been jailed by authorities in relation to false accusation that implicated me with the opposition political party OLF. I have been accused of running an underground opposition campaign through [an association] [with] university colleagues.

    My family coming from Oromo ethnic group has in the past been targeted by the current government security forces of being prominent supporters of the opposition political party OLF. My whole family except my [sibling] has been displaced as a result of being hunted down by security forces. For many years, my [sibling] and I have not been able to locate other members of my family including my parents, [and other siblings].

    ... I just recently became aware that the [association] has been linked with working in clandestine for the OLF underground movement. My colleagues who are members of the association have been hunted down and subjected to imprisonment and torture. As [a member] of the association, I have also been implicated with the local OLF movement. A return back home would be risk of an imminent death and execution in the hands of the EPRDF brutal government.

    In the past I was falsely accused of having link with the OLF fighters in the bush and influencing my association's team members not to join the government party, EPRDF. I was also critical of the EPRDF policy for enforcing the public of students not to become their members. I was detained, brutally tortured, discriminated, badly beaten, sexually harassed and inhumanly raped by the EPRDF military forces.

    Having been suffered all these discriminations and harassment innocently, I was finally released on conditions I have signed that I will face the music if I or any of our members are found to have links with any outlawed party like OLF.

    I was terribly victimized and painfully endured a cruel and excruciating torture and inhuman persecution in the brutal hands of the EPRDF regime.

    It's for the above reason that I cannot go back to my country as there is no hope left for me to live in my country.

13. In response to question 45 – about why she thinks this will happen to her if she goes back to (Ethiopia) – the applicant stated:

    I am extremely fearful for my life because of my own personal experience with various authorities in the past. I have been subjected to continued abuse and discrimination at different levels of the government and observed a lot of injustice and brutality to my close associate.

    Like others who tried to stand in the government's way and brutally treated by

    
    

    government agents, in the past I have had my share of cruel treatment for my personal opinion and belief.

    Having been suffered all the above mentioned discrimination and harassment innocently, I was finally released on conditions I have signed that I will face the music if I or any of our members are found to have links with the outlawed OLF party or any of its subordinates.

    I was terribly victimized and painfully endured a cruel and excruciating torture and inhuman persecution in the hands of the EPRDF regime and its agents at large. It's the same government who is still on power and who has mistreated and persecuted me for being member of a particular social group, Oromo, and [a] group linked with OLF innocently. Therefore as long as the ruling party is still in power, my life will never be safe.

    My traumatic past means I am extremely fearful for my life and my close associates. I will be mistreated in the hands of the current Ethiopian government police and security agents, and therefore, I cannot feel safe to return back while the current government is in power.

14. The notice also refers to the following statement made by the applicant in a six-page statutory declaration dated 10 September 2012 as follows:

    I lodged an application for a protection visa with the Department of Immigration on 6 July 2012, I now make the following statutory declaration to provide further information in support of my claims for protection.

    I am sure that if I go back to Ethiopia, my life will also be in danger... I would certainly be arrested... if I returned to Ethiopia and I fear that I would be subjected to brutal treatment because of the past history and the paper I signed...

    I have been terrified since I learned what happened to my [sibling]. I knew that I couldn't go back to Ethiopia.

15. The former Refugee Review Tribunal (RRT) in reviewing the delegate’s decision to refuse to grant the applicant a protection visa found Australia did have protection obligations in respect of the applicant based on these claims on 6 August 2013. The applicant was granted a protection visa on 7 February 2014. She was found to be a refugee by the RRT on imputed political opinion grounds as an Oromo Liberation Front (OLF) supporter, fearing persecution at the hands of the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) government.

16. However subsequently, as set out in the notice, the applicant returned to Ethiopia from  [August] 2015 to  [May] 2016 (evidenced by stamps in her Australian travel document and what she told an officer on arrival at [City 1] airport on return). Her long stay in Ethiopia, using a travel document in her own name and apparent safe return only 18 months after being granted a protection visa led the delegate to conclude that the applicant had provided incorrect information in her protection visa application form (and September 2012 statutory declaration) that she feared that she would be subject to brutal treatment by agents of the Ethiopian government if she returned. The delegate concluded that the applicant did not fear such treatment at the time she applied for the visa. The delegate states that if the applicant had a profile as claimed at that time, she would have been arrested when she returned to Ethiopia, noting the EPRDF were (and are) still in power there.

    Response to the NOICC

17. In their written responses to the NOICC the applicant’s representative acknowledged that the applicant returned to Ethiopia for around eight months in the period in question but submitted that this does not automatically enliven s.101 of the Act. She noted Departmental policy envisages that some refugees want to return to their country of origin and that the decision to return does not necessarily negate a subjective and objective fear of return at the time of application.

18. The representative explained that the applicant returned due to her compassionate and compelling circumstances at the time: that is, she was in poor health and was struggling to cope being pregnant and with a young child and no longer in a relationship with their father. It was submitted that whilst in Ethiopia for the eight months the applicant stayed in the capital – Addis Ababa – and led a restrictive life.

19. Also provided in response to the NOICC was a statutory declaration from the applicant dated 10 August 2017. In it she confirms that her protection claims are true and that she continues to be afraid to return to Ethiopia on that basis; explains the reasons she returned to Ethiopia in 2015/2016 and her arrangements whilst there; and her (then) current circumstances.

20. Supporting documents provided in response to the NOICC included:

    ·A report from [a] Counsellor/Advocate, [Organisation 1] dated 9 May 2013 which provides an assessment of the applicant’s psychological functioning;

    ·A copy of a Family Court of Australia consent order [in] July 2017 setting out custody arrangements for the applicant and Mr  [A’s] children;

    ·A letter of support from Pastor [B], The [Named church] (the applicant’s church) dated 13 July 2017; and

    ·A letter from a Counsellor/Advocate, [Organisation 1] dated 24 August 2017 with respect to the applicant.

21. On 19 December 2017 the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the NOICC and assessed the applicant did not comply with s.101(b) of the Act. The decision records that the delegate considered the applicant’s response to the notice but was not persuaded.

22. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

23. During the review stage the applicant’s representative has provided to the Tribunal a detailed written submission addressing the matters raised by the delegate, setting out the applicant’s personal circumstances and immigration history, detailing the reasons the applicant returned to Ethiopia (and her circumstances and experiences whilst there), and the discretionary factors (if required). She reiterates that the applicant did not provide incorrect information at the protection visa application stage, noting that the applicant was found to be credible by the former RRT, who accepted her claims. Further, the representative submitted that the applicant’s return to Ethiopia in 2015/2016 – for significantly compassionate and compelling reasons – is not inconsistent with her claims at the protection visa application stage in 2012.

24. The applicant provided a statutory declaration to the Tribunal dated 9 May 2019 reiterating the reasons for her return to Ethiopia and providing an update about her personal circumstances. The other supporting documents provided (that were not already provided in response to the NOICC) included:

    ·A statutory declaration dated 9 May 2019 from Mr [A], the father of the applicant’s two children; and

    ·A letter of support from [a] [Senior Official] of [Organisation 2] where the applicant has volunteered for a number of years.

25. At the hearing the Tribunal discussed the relevant contents of the NOICC with the applicant. She disagreed that there was non-compliance with the Act as set out in the notice. She said her claims at the protection visa application stage – including about her and her family members’ past experiences in Ethiopia and related fears – were correct.  Despite her fears she made the decision to return to Ethiopia with her young [Child 1] (and pregnant with her second [Child 2]) in August 2015 with the assistance of her pastor and fellow church members in [City 1] (who have links to church resources and support in Addis Ababa) and the financial assistance of Mr [A] because of the difficult circumstances she found herself in. Specifically, caring for a young child primarily on her own, being pregnant with another child, being disappointed in the lack of emotional support her children’s father could provide, and experiencing health and emotional problems as a consequence, including serious sleep deprivation and associated anxiety. At hearing the applicant said she felt emotionally broken: that it was all too much at the time. Mr [A] gave evidence that the applicant sometimes went days without sleeping, making him worried about her and their [Child 1]’s safety. His oral evidence and that of Pastor [B] was that whilst they (and others) were very concerned about her and her [Child 1]’s emotional welfare at the time, they also felt limited by what help they could provide.

26. The applicant told the Tribunal she did not plan to go to Ethiopia for so long: however after receiving daily help (and company) on return through church members, Mr [A’s] extended family members and hired help, and seeing her [Child 1] settle and thrive, she continued to stay, month by month. She did not travel outside Addis Ababa and was largely confined to her home (she rented a unit in Addis Ababa, paid for by Mr [A]), looking after her young [Child 1] and, after [date], her newborn baby as well. She said a few months after her second [Child 2] was born she was planning to return to Australia once she had organised his passport (he obtained Australian citizenship by descent). Her plans were accelerated after her [Child 1] had some health [problems] (in Australia he was found to [have a certain condition]) and she returned to Australia with him in May 2016. She left her [Child 2] in the care of a close friend in Addis Ababa and Mr [A’s] cousin brought [the child] to Australia following a visit to Ethiopia a few months later.

27. Currently the applicant said she lives in a unit in [Suburb 1] with her two (Australian citizen) [children] who both attend child care three days a week. Her eldest will go to school next year. They spend most weekend (days) with Mr [A] and his family members, including his mother, aunt and nieces and nephews. The applicant volunteers at a local op shop, is heavily involved in her church, and is now doing well psychologically, noting at hearing her children are her key motivation to take care of herself.

    Findings on non compliance

28. The Tribunal has considered the information contained in the NOICC, the applicant’s response to it, the applicant’s oral evidence to the Tribunal, the witnesses’ oral evidence to the Tribunal, the representative’s submissions to the Tribunal, and other relevant evidence before it to assess whether the grounds for cancelling the visa are made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in visa cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[1]

    [1] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

29. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.

30. It is not in dispute that the applicant returned to Ethiopia – pregnant and with her [Child 2] – in August 2015, around 18 months after she was granted protection in Australia on the basis of her claims that she had a well-founded fear of persecution in Ethiopia. It is also not in dispute that she remained in Ethiopia for over eight months before returning to Australia, and during that time gave birth to her [Child 2], whom she left in Ethiopia for a few months with a friend when she returned to Australia in May 2016, with her eldest. Such actions do raise a question about the applicant’s claimed fear of persecution in Ethiopia: in particular her claims to have been directly targeted by the EPRDF security forces in the past and given the EPRDF have remained in power since then. Also, because her claims included her feeling sure that if she returned to Ethiopia her life would be in danger, she would ‘certainly’ be arrested, and she would be subjected to brutal treatment because of her past history and because she signed a document following her detention in 2011 agreeing that if the authorities found any connection between her or her family members with the OLF, she had to accept whatever punishment they gave her. She claimed that she was prompted to apply for protection after she heard (whilst in Australia) that two friends from the organisation [in] Ethiopia – the  [Association] ([abbreviation]) – and her [sibling] had been arrested and interrogated by the authorities, possibly accused of supporting the OLF.

1. Although the applicant’s claims clearly related to fearing serious harm from the authorities of the country, the Tribunal notes they are, nonetheless, subjective claims. The applicant did not claim that she had fled Ethiopia or that she faced being arrested at the airport if she returned there because of outstanding charges or warrants against her. In fact in her statutory declaration dated 10 September 2012 the applicant specifically states that after her detention outside of [a named city] (Oromia region) for [a number of] days in September 2011 she was not arrested with anything, but her release was ‘on the condition that if they found any connection between myself or members with the OLF, I had to accept whatever punishment they gave me. They made me sign a paper agreeing to this’.

2. At hearing the applicant said that she thinks she was able to return to Ethiopia unnoticed because she was not a public figure or well-known and therefore would not be identified at the airport on return. Even if she was of ongoing adverse interest to the authorities in Oromia region, she doubts that there was a centralised system identifying her as someone of interest outside Oromia. The Tribunal finds it plausible that the applicant could be in the country for a temporary period of time and go unnoticed, particularly if she kept a low profile including not working, not being politically active and limiting her stay to the capital, Addis Ababa, outside the area where she claimed to have been of adverse interest to the local authorities in the past (the last time being in 2011).

3. The Tribunal found the applicant a credible witness at hearing whose oral evidence about her circumstances leading up to her return to Ethiopia, reasons for her return, and her life whilst there was detailed and coherent and supported by the oral evidence of Mr [A] and Pastor [B]. They indicated in their evidence their concern for the applicant’s health and safety and that of [Child 1] at the time and that they worked together to try and come up with a temporary solution to provide the support she needed. Reports from [Organisation 1] have been provided which show the difficulties the applicant had leading up to this period coping with her past traumatic experiences and the loss of her family members in Ethiopia. The Tribunal therefore accepts her reasons for returning to Ethiopia and accepts they were compelling reasons. Whilst it appears somewhat illogical for the applicant to return to a country where she claimed to have been seriously harmed before and feared serious harm in the future (and where she claimed the authorities had taken away most of her family members, among other things), having regard to the particularly acute and precarious situation the applicant found herself in prior to leaving Australia in August 2015, including the evidence that she was possibly a risk to herself and her child if the situation did not change, the Tribunal finds in such a context her decision to return to Ethiopia at this time, despite some residual fears, was not far-fetched and in that context, understandable.

4. As well, at hearing the applicant recounted her (and her family’s) past experiences in Ethiopia which led to her initial departure from her country and the events that have transpired since she left. Her oral evidence was credible and consistent with her claims before the Department and the former RRT at the protection visa application stage and reflected in the detailed account set out in the 2013 report from her counsellor at [Organisation 1]. As mentioned, her claims were also corroborated by Mr [A’s] oral evidence, who told the Tribunal he met the applicant in 2012 and supported her during her protection visa application and review. The applicant’s claims were also consistent with information she purportedly relayed to a Departmental official from Ethiopia over the telephone as set out in an email dated 4 May 2016 contained on the Departmental file (a copy was provided to the Tribunal on review by the representative), with the following exception. According to the record of the conversation, the applicant said that she lost her biological parents when very young; that she has not lived with them since school; and she does not know if they are dead or alive. However at hearing the applicant clarified what she meant was that her parents have been lost – since being taken by the Ethiopian security forces in 2002 – when she was at [University] and she suggested that was what was meant by ‘school’. The Tribunal is satisfied the applicant has clarified her evidence in this regard, which accords with her previous claims in this respect.

5. Taking into account these considerations the applicant’s return to Ethiopia for eight months in 2015/2016 does not, in the Tribunal’s view, necessarily mean her claims at the protection visa application stage to fear persecution there on imputed (pro-OLF) grounds and ethnicity (Oromo) grounds are untrue. Particularly, as mentioned, given the Tribunal accepts she stayed in the capital only – not returning to the area where she had an adverse profile – and kept a low profile whilst there. The Tribunal also accepts that circumstances can change, and the fact that the applicant was not of interest to the authorities during her temporary visit to Addis Ababa during this period does not necessarily mean she was not fearful of the local authorities (elsewhere) at the time she made her protection visa application in 2012 or that her claims of being threatened and harmed by such actors in the past as set out in her visa application (and September 2012 statement), and about the treatment of her family members were untrue.

6. For these reasons, including on the basis of the coherent and consistent account of her claims, and the Tribunal’s acceptance that she had compelling reasons for her return to Ethiopia in 2015/2016, the Tribunal is not satisfied there is a sufficiently probative basis in this case to support a finding that the information the applicant provided about her protection claims at the visa application stage are incorrect.

7. In summary the Tribunal agrees with the delegate that the applicant’s return to Ethiopia for eight months from August 2015 at the very least raises a concern about her alleged fears of being persecuted there at the time of the visa application, particularly given the claimed persecutor was the ruling EPRDF and they remain in power (and were at the time of her return). However, this does not, in the Tribunal’s view, constitute evidence to the requisite level as required by Zhao that she provided incorrect answers in her protection visa application (and related statutory declaration) about her feared persecution and allegations of past harm and threats to her and her family members in Ethiopia.

8. For the reasons set out above the Tribunal finds that the grounds identified by the Minister’s delegate have not been established, such that it has reached a real state of satisfaction that incorrect information was provided. For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   Other matters: condition 8559

9. In the NOICC it was noted that the applicant’s protection visa, granted on 7 February 2014, was subject to condition 8559 requiring that the holder of the visa must not enter the country by reference to which the holder was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing. Yet, it was noted, there was no record that the applicant requested or was given the Minister’s approval for her entry to Ethiopia in 2015.

10. In the decision record the delegate addressed this matter when considering the discretionary factors (to cancel the visa or not). At hearing the applicant said she was not aware of that condition, which is why she did not seek the Minister’s approval to travel to Ethiopia (on an Australian travel document) at the time.

11. The representative has submitted that whilst it is clear the applicant’s protection visa was subject to condition 8559, neither the imposition of the condition or its breach, can automatically enliven a cancellation power. She noted further that the condition, and the policy guidelines, allow for the Minister to approve entry to a relevant country of reference in writing in some circumstances, demonstrating that not all travel to a home country will necessarily undermine the basis on which the protection visa was granted.

12. The Tribunal accepts that it was necessary for the applicant to obtain approval prior to returning to Ethiopia in August 2015 because her protection visa was granted after 3 June 2013 and was therefore subject to condition 8559. The Tribunal accepts she never obtained such approval.

13. However, in this case the applicant’s visa was not cancelled because she had not complied with a condition of the visa, but because the delegate was not satisfied that she had completed her application form in such a way that no incorrect answers are given or provided: s.101(b). Therefore, as indicated above, the issue in this review is whether the applicant gave incorrect answers in her application for a protection visa in the way described in the notice sent to her and, in particular, whether she did in fact fear being seriously harmed by the authorities if she returned to Ethiopia as she said in her protection visa application and her September 2012 statutory declaration. The Tribunal considers the fact that the applicant breached condition 8559 because she did not seek approval from the Minister before returning to Ethiopia in 2015 is irrelevant to this question and does not alter the findings the Tribunal has made on this case, as set out above.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Nicole Burns
    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 rea[child]s 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.