1804025 (Refugee)

[2019] AATA 1254

1804025 (Refugee) [2019] AATA 1254 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804025

COUNTRY OF REFERENCE:                  Iran

MEMBER:Sean Baker

DATE:18 January 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 18 January 2019 at 12:40pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – particular social group – stateless Faili Kurds – Iranian citizenship – daughter with rare medical condition – compassionate grounds – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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. [The applicant] lived in Iran before coming to Australia in 2011. This application is being considered with that of [Mr A] and [Miss B] (Tribunal file number 1804024), the husband and daughter of the applicant

2. The visa was cancelled because the delegate reached a state of satisfaction that [the applicant] had provided incorrect information when she was applying for a protection visa. The Subclass 866 (Protection) visa of [the applicant] was cancelled by the delegate under s.109(1) of the Migration Act 1958 (the Act) on this basis. 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 17 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, whose hearing was combined with that of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. 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

5. 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.

6. 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.

7. 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?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: the applicant, her husband (who has made a separate application for review) and their daughter were all claimed to be stateless in their applications for protection. They claimed that their families were stateless. They claimed that they had faced harassment and harm amounting to persecution on the basis of their status as stateless Faili Kurds. The answers they gave in their applications, and the evidence that this was incorrect, was particularised in the s.107 notice. Information available to the Department indicated that the applicant’s brother in an Iranian national. As the visa holder’s brother is an Iranian national and Iranian citizenship descends through paternal lines, the applicant must therefore be an Iranian citizen.

9. The applicant responded to the s.107 notice. In her response she said that she did provide incorrect information to the Department when she claimed to be a stateless Faili kurd. She is an Iranian national and is trying to obtain his Iranian identity documents.

10. At the hearing I discussed their answers in their protection applications and statutory declarations and the information put to them by the Department. In response both the applicant and her husband said that they were Iranian citizens. The applicant said that she was an Iranian citizen as were her parents. She said that as she and her husband were first cousins, it was the same situation for them both. She said that she used to hold a Shenasnameh and National Identity Card and an Iranian passport. They indicated their daughter was also an Iranian citizen. They said they had departed through [named] airport on their Iranian passports. I noted to them that it appeared to me that there had been non-compliance as particularised in the notice. They agreed.

11. I have carefully considered the information provided by the Department. Whilst not determinative in itself, the admissions of the applicant and her husband are, I find, determinative that they are Iranian citizens and held Iranian identity documents including the Shenasnameh, NID and passport only issued to Iranian nationals. I find that this information is determinative that they were not at the time they made their protection applications and statutory declarations accompanying, stateless, and therefore that they provided incorrect answers in those application forms and declarations.

12. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

13. 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).

14. 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.

15. While these 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 Procedural 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.

16. The applicant responded to the Notice of Intention to Consider Cancellation (NOICC) on 22 December 2017.

    the correct information

17. The applicant provided the correct information in her response to the s.107 notice and at all times after that; that is, that she is a citizen of Iran and is not stateless as she claimed. I consider that both to the Department and to me the applicant has made full admissions of the incorrect information. The applicant spoke, convincingly, of her remorse in having been untruthful. The admissions have come at some personal cost.

18. I have taken account that the applicant has disclosed the correct information, that she has demonstrated a degree of contrition and that the admissions cost her and her family. They did this during the process that led to the cancellation of the visa and I consider that her admissions should be given some weight towards the visa not being cancelled.

    the content of the genuine document (if any)

19. Not relevant in this case.

    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

20. In this case it is not disputed that the grant of the protection visas was based at least partly on the incorrect information given by the applicant. The cancellation decision claims that, had the protection application delegate been aware of the correct information at time of decision, it would have been highly unlikely the visa holder would have been granted a protection visa as the incorrect information was material to the grant.

21. The applicant and her husband maintained that they would have been granted the visas if they had correctly stated they were citizens because the rest of their claims were true. I pointed out that the decision appeared to have been based wholly or partly on them being undocumented stateless Faili Kurds deprived of basic human rights and fearing persecution in Iran on that basis. They said they were told by many other people to say they were stateless. They maintained that they would have been granted the visas. I noted that citizen Faili Kurds did not, according to the country information I had access to, appear to be persecuted, although they may face some low level discrimination in certain areas of Iran. They said that they had suffered in Iran. The applicant spoke of her family disputes and the family difficulties they had faced and that her father had been stabbed when she was a child.

22. I have considered the evidence given by the applicant and her husband at hearing, which was heartfelt and compelling. However, despite this information, I consider that the decision to grant visas to the applicant, her husband and their daughter, were based wholly or partly on the incorrect information. Prima facie, this would appear to be the rationale for them providing the incorrect information at that time – the applicant was not able to explain why that would not have been the case. I give this factor significant weight towards the visa being cancelled.

    the circumstances in which the non-compliance occurred

23. The applicant was very significantly affected by the dispute and stabbing of her father when she was a child and the disputes within her family. She was deeply affected by the death of her nephews. Of most concern to the applicant was the health of her daughter, who went undiagnosed and poorly treated in Iran it is claimed. The applicant appeared as a deeply traumatised person from these experiences. For these reasons the applicant and her husband claim they decided to leave Iran to travel to Australia.

24. They claim, and I have no reason to doubt, that they were pressured by the people smuggler and others to conceal their Iranian citizenship and claim statelessness whilst en route, and told that they would be sent back to Iran if they told the truth. The representative states, and I accept, that they were confused and vulnerable at this time.

25. At hearing the applicant and her husband also said that the situation for Kurdish people in Iran was very difficult – they were discriminated against. I discussed with the applicant and her husband the information in the Department of Foreign Affairs and Trade report on Faili Kurds in Iraq and Iran which states:

    3.53  Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.

    …

    3.62  Faili Kurds who are Iranian citizens have access to employment on the same basis as other Iranian citizens.

    …

    4.4  DFAT has spoken to a range of credible contacts in relation to the societal treatment of Faili Kurds. Contacts have not reported instances of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault. However, contacts were not prepared to rule out the possibility of this occurring to individual Faili Kurds, due to their vulnerability as refugees and their Kurdish identity.

    4.5  On this basis, DFAT assesses that this type of societal discrimination against Faili Kurds is not widespread, but cannot be ruled out in individual cases.[1]

    [1] Department of Foreign Affairs and Trade, DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014.

26. The applicant disagreed with this assessment but did not posit any alternative information about the situation for Faili Kurds who were citizens in Iran. The applicant said that she had been truthful from the time of the NOICC, that she had tried to be truthful earlier but had been too scared to reveal the truth because of what they had been told on the boat. She said that she had been very afraid of telling everything because of her daughter’s health but that they had told the truth. They had acknowledged that what they had said on arrival had been lies. She said that her family circumstances in Iran were really terrible and she was so afraid of returning, she feared those people who had attacked her father. She said that her brother changing his religion to Baha’i also worried her and she believed she would be harmed for being a family member. She said that they had been pressured by distant family members because of her brother’s change of faith.

27. I have had regard to the circumstances which led the applicant and her husband to decide to leave Iran. I am very sympathetic to the difficult situation that they found themselves in and I understand her belief that she had no choice but to be untruthful. The applicant spoke movingly of her fear and distress because of her situation and that of their family in Iran. I accept that she and her husband were scared and vulnerable on the way to Australia and made the choice to lie about their circumstances because of this vulnerability. I accept that there are strongly compassionate circumstances in which the non-compliance occurred.

28. However, the applicant and her husband provided incorrect information in their applications for protection which go to the very heart of our humanitarian and protection program. Their provision of incorrect information is therefore serious because it may undermine that program and community support for that program. For this reason I can give this factor only little weight towards the visa not being cancelled.

    the present circumstances of the visa holder

29. The applicant suffers from a number of health issues. She has been diagnosed as suffering from a major depressive illness for which she is taking medication and she also has several physical health issues including [a medical condition] which makes it difficult to care for her daughter. The fact that the applicant’s daughter suffers from a rare [medical condition] is said by the Doctor to contribute to the ill health of the applicant. At hearing she spoke of her distress that her daughter may not live beyond [age] years old and that she did not know if her daughter’s condition would stay the same or become worse. She said that since arriving in Australia she had been experiencing emotional challenges. She said that since the cancellation they had really suffered.

30. The applicant’s husband had been working and had set up his own business but since the cancellation had not been working and the situation for the family has been extremely precarious. I consider that there are significant compassionate grounds relating to this ground and others below which mean that I give this factor some weight towards the visa not being cancelled.

    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

31. The applicant and her husband have disclosed the incorrect information and provided as much information as possible. From the date of the response to the NOICC, I assess that they have provided as much information about the non-compliance to the Department and the Tribunal as they have been able. I give this little weight towards the visa not being cancelled.

    any other instances of non-compliance by the visa holder known to the Minister

32. There are no other known instances of non-compliance and I give this little weight towards the visa not being cancelled.

    the time that has elapsed since the non-compliance

33. The visas were granted to the applicant and her husband and daughter in 2011. They appear from the information before me to have integrated well into the community – the applicant had undertaken a number of courses to work in [specified industry] and the applicant’s husband was working and had set up his own business. I give this little weight towards the visa not being cancelled.

    any breaches of the law since the non-compliance and the seriousness of those breaches

34. There is no information that the applicant, or her husband or their daughter, have breached the law in any way and I give this some weight in favour of the visa not being cancelled.

    any contribution made by the holder to the community.

35. The applicant completed her diploma [but] because of her daughter’s ill health she was not able to work in this field. She was seeking some voluntary work in the field prior to the cancellation but had to stop this with the cancellation. She said that she has to take her daughter to many appointments. I note that her husband was working in his own business and supporting the family. I give this some weight towards the visa not being cancelled.

36. I have also considered the Departmental guidelines, which include the following factors which I consider are highly relevant to this case.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

37. The applicant would be barred from making further visa applications. She would be liable to detention, as would be her husband and their daughter. However, I note that the applicant has admitted to being a citizen of Iran and therefore it would appear that she can obtain a passport or other travel document and return to Iran and be admitted to the country. I will deal below with any concerns about what might occur once there.

38. I give this factor little weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s.140

39. Not relevant, although noting that the applicant’s husband’s visa was also cancelled and that their daughter’s visa was consequently cancelled as a result.

    whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

40. The applicant’s [age] year old daughter has a very rare [disorder, Medical Condition 1,] that requires monthly [treatmentwith Medicine 1 at Hospital 1] and [a specified] disability, as well as [Medical Condition 2]. The disorder is chronic. She has also spent the majority of her life in Australia. The applicant said at the hearing that they had been told by Doctors that their daughter may not live beyond [age] years old.

41. The Convention on the Rights of the Child,[2] to which Australia is a party, relevantly provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration,” and further that “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being.”[3] The Convention also provides for what is understood to be a protection of family unity, contained in several articles and the preamble that provide the right of the child to be cared for by her parents,[4] preservation of family relations[5] and that children are not separated from their parents against their will unless such separation is necessary for the best interests of the child.[6]

    [2]

    [3] Article 3, Convention on the Rights of the Child,

    [4] Article 7, Convention on the Rights of the Child, Article 8, Convention on the Rights of the Child, Article 9, Convention on the Rights of the Child, type="1">

42. Most relevant to this case is the health care that the daughter is receiving in Australia and the principle of family unity.

43. From the letters and evidence provided, it is clear that the applicant’s daughter is getting the care she needs here in Australia. An analysis of her best interests then needs to consider whether the care she would receive in Iran would be as good or better – if not, then clearly her best interests are to remain in Australia and continue to receive the treatment she is getting here.

44. The delegate put forward that there is no information to suggest that the applicant’s daughter would not receive medical care in Iran. In support of this proposition, the delegate’s decision quotes several sources which deal with the general health care situation in Iran, which indicate that Iran’s medical facilities are excellent and the healthcare system is well structured,[7] and that Tehran opened the world’s largest [specified treatment facility].[8] It was also noted, following the DFAT report above, that it appeared that Faili Kurds who were citizens were able to access services on the same basis as other citizens and do not appear to face much if any discrimination in accessing health care.

    [7] Tahsili, Z., Brand, L, ‘Healthcare in the Islamic Republic of Iran,’ Lex Arabiae, Meyer-Reumann & Partners, January 2010, Asaei, S. E., ‘Iran’s Excellent Primary Health Care System,’ UNICEF,

    [8] ]Source deleted]

45. The delegate used this information to conclude that the applicant’s daughter could access health care in Iran.

46. At hearing I put this information to the applicant. He responded that they had not been able to access diagnosis or treatment for his daughter in Iran, which was why they had come here. He reiterated that his nephews had died because of poor medical treatment. He said that his daughter had recently been able to start walking on her own, she required a great deal of support and was going to a school for children with disabilities. He said that all of these things were not available in Iran or were only available if you had the money. He said even if the medication was available, with the current financial situation, how would he be able to cover the cost. I noted that there was some information that [Medicine 1 treatments] such as those their daughter was receiving were available in Iran and indeed that Iran was leading the way in trialling cost-effective [Medicine 1 treatments].[9] I noted that Iran was recognised as a world leader in [the related field of medicine] and that a new centre had been constructed in Tehran. The applicant said that he did not think that his daughter would receive the care she needed.

    [9] [Source deleted].  

47. At the end of the hearing the applicant submitted that not all health care was free, and that the US sanctions had meant that a lot of health care and medicines were not available. I provided further time after the hearing for the representative to submit further information in relation to this.

48. The representative provided a submission detailing the impact of the US sanctions on healthcare in Iran. Attached to this was a letter from the applicant’s daughter’s treating paediatricians. The paediatricians responsible for her care at [Hospital 1] state that if she does not receive [specified medical treatment] she would be at risk of infection and likely to die. They confirm that they had spoken with colleagues in Iran and that she would not be able to receive such treatment in Iran through the public system, nor would the family be able to afford it privately. The letter also notes that she requires [various forms of therapy] and education support at school due to her [disability] and that it would be very difficult for her to learn Persian. Also attached is a letter from a doctor in Iran who attests that patients with [Medical Condition 1] require [treatment] not available in Iran, which can be sourced from [another country] with great difficulty and that these [treatments] are not free.

49. The representative also provided a number of articles which supported the claim that sanctions had had a significant impact on the supply and pricing of medicines. I have also found recent reports that the latest rounds of sanctions have restricted the supply of medical supplies to Iran.[10] Indeed, it appears that sanctions imposed by the US at the end of last year did not include a mechanism to guarantee Iranian imports of basic medicine supplies.[11]

    [10] Cunningham, E., ‘Fresh sanctions on Iran are already choking off medicine imports, economists say’, the Washington Post, 17 November 2018,

    [11] Borger, J., Dehghan, S., ‘US rebuffs Europeans over ensuring Iran sanctions exempt food and medicine’ The Guardian, 3 November 2018,

50. I therefore have further information before me than the delegate had access to, including the letter from the treating paediatricians at [Hospital 1] and the doctor in Iran, as well as news reports which shed some light on the current state of medicine in Iran. Having carefully considered the information before me, I consider that the evidence demonstrates that the applicant’s daughter would have great difficulty accessing the medicine and treatment that she requires, and that if she is unable to access these treatments the consequences may be significant, including her death. I have placed particular weight on the letter from the consulting paediatricians and their indication that they have spoken with medical specialists in Tehran. Even if I was minded to consider that the applicant and his wife could afford their daughter’s treatment through the private health care system in Iran (and I am doubtful of this), then I consider that the evidence before me strongly indicates that it is extremely difficult in Iran to source medicines given the sanctions, and taking account of the letter from the Iranian Doctor I consider it very likely that this includes the difficulty he refers to in sourcing [Medicine 1].

51. I find therefore that the care the applicant’s daughter would be provided with in Iran would be substantially below that she is receiving in Australia, for reasons of supply of [Medicine 1], and cost. I find therefore that the best interests of the child are very clearly in this case, for her to remain in Australia and continue to receive the level of care she is receiving here. Further, I also accept that she would not receive the other areas of care referred to by her parents and the letter from the Paediatricians.

52. It is noted in the delegate’s decision that the best interests of the child must be weighed against the seriousness of the non-compliance. I agree. However, in the daughter’s case, the potential outcome of the child being returned to Iran would, according to the letter from her treating Paediatricians at [Hospital 1], result in her death. Non-compliance and the abuse of the visa system are indeed serious. However, the Departmental Guidelines require me to take account, where relevant, of consideration of the best interests of the child and to give this a primary consideration. I must therefore weigh the established and very grave danger that returning this family would place this child in. it would be wrong in law, as well as immoral, for this not to be given a high weighting in considering the situation of this family. In the case of the applicant’s daughter, I find that the best interests of the child, given a primary consideration, leads me to find that this weighs very heavily in favour of the visas of the family not being cancelled.

53. This is relevant despite the fact that I am reviewing the mother’s cancellation only. As above, the daughter’s visa was consequentially cancelled when the father’s visa was cancelled and therefore the daughter’s visa status is directly affected by the visa status of her father. I have found in the father’s case that the best interests of the daughter is a direct and relevant consideration in that decision under review. In this case I have found that the best interests of the daughter are very clearly to remain and continue to receive care in Australia. The principle of family unity confirms that her mother and primary care giver should remain in Australia – to remove her would lead either to the best interests of the child not being given a primary consideration, and to her serious possible harm or death, or to the principle of family unity being breached if the daughter were to remain but her parent or parents, and primary carers, were removed from her.

54. There are additional matters of concern under this consideration including the treatment of the applicant who has not worn the veil in her eight years in Australia and would wear it on return only because she feared the consequences and whether this is persecutory conduct. It is not necessary, given my findings elsewhere, to fully detail these considerations. They are not as significant as the above and do not add to my weighing above.

    any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

55. If the applicant returned to Iran I accept that this would lead to great hardship for her, her husband and daughter, including as above whether her daughter could access the medicine and health treatment she needs, but also whether the applicant and her husband could receive treatment for their mental health. I give this some weight towards the visa not being cancelled.

56. I have carefully weighed the above considerations. The applicant has abused the visa migration program, her non-compliance is at the more serious end because lying about matters fundamental to refugee assessments goes to the very heart of those programs and community support for them.

57. However, in this case there are compassionate grounds of the highest order, that is, the possible death or lack of adequate medical treatment for a child to be weighed against this. Having carefully considered, I find that this consideration outweighs those in favour of cancellation.

    Conclusions

58. 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.

59. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Sean Baker
    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.