1811152 (Refugee)

[2018] AATA 5737

1811152 (Refugee) [2018] AATA 5737 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811152

COUNTRY OF REFERENCE:                  Iraq

MEMBER:David McCulloch

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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 19 December 2018 at 11:19am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in application –voluntary return to Iraq –  inconsistent claims whether Shia or Sunni Muslim – imputed political opinion – father worked for outspoken critic of militias – religion – Sunni Muslim – child killed by Shia militia – credibility issues – overall consistency of evidence – effect of trauma and separation from family –  decision under review set aside 

PRACTICE AND PROCEDURE – similar claims and joint witness – joint hearing with brother 

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 108, 109

CASES
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v Minister for Immigration & Multicultural Affairs [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 the applicant provided incorrect answers in his application for a protection visa. 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 delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application form for the protection visa. 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. The applicant appeared before the Tribunal on 13 December 2018 at 9:30 am to give evidence and present arguments.

5. A protection visa granted to the applicant’s brother, [Mr A], has also been cancelled in a decision dated 26 March 2018 by the same delegate of the Minister who cancelled the applicant’s protection visa.  A review of that decision by the Tribunal has also been sought by [Mr A] (AAT reference number 1811165). The issues in relation to both reviews are substantially similar. Both the applicant and [Mr A] returned to Iraq from Australia (at different times) for claimed family reasons. Both the applicant and [Mr A] refer to the same events in Iraq that occurred in 2011 and belonging to the same Muslim denomination as being the reasons why they left Iraq and why they fear returning. Both the applicant and [Mr A] had proposed to be witnesses in each other’s hearings. There were witnesses proposed in the hearings, including one witness, [Sheikh B], who would be giving evidence for both the applicant and [Mr A].

6. Given the connection between the applicant and his brother, the similarity in evidence and issues, and a joint witness, the Tribunal determined to hold a joint hearing of both applications. Therefore the review of [Mr A]’s cancellation decision was heard in the combined hearing that took place on 13 December 2018 at 9:30 am.

7. The Tribunal received oral evidence at the hearing from [Sheikh B] (for both the applicant and [Mr A]), [Mr C] (for the applicant) and [Ms D], [Mr A]’s wife (for [Mr A]). The Tribunal has also noted the evidence of [Mr A] in the hearing as relevant to the applicant’s claims.

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

9. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

11. The Tribunal has made a separate decision relating to [Mr A].

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

14. 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 as follows, including the response of the applicant (copied verbatim):

    Sections of Subdivision C with which it is considered the visa holder has not complied: Section 101. Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    By operation of s99 of the Act, 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.

    Evidence of non-compliance:

    On [date] November 2011, the visa holder travelled to Australia by boat without any visa and was classified as an Illegal Maritime Arrival.

    On 17 May 2012 the visa holder applied for a Protection (subclass 866) visa. As part of this application, he provided a Form 866 - Application for a Protection (Class XA) visa. The visa holder provided the following information in Part C of the form (in italics).

    At question 42, the visa holder answered 'Iraq' to the question of 'l am seeking protection in Australia so that I do not have to go back to.'

    At question 43, the visa holder answered 'Please refer to Statutory Declaration, sworn on 25/12/2011 'to the question of 'Why did you leave that country?'

    Enclosed in his application for Protection visa, was a Statutory Declaration signed by the visa holder on 25 December 2011, which states (in italics):

    'I left Iraq on [date]/09/2011 because I feared being killed by the Bader militia. They are Shia Muslims.

    My father was a driver for a leader from a mosque, gave the 'call' for prayers and delivered sermons on Fridays. He was a vocal critic of the militias, including the Bader militia. Over the loudspeaker from the mosque he denounced the militias as 'killers', 'bloodsuckers' and said they were not Iraqis. He criticized them once or twice a month. I heard him criticize the militia several times.

    [In] May 2011 my father and [Imam E] were in a motor vehicle driven by my father when the Bader militia attacked them. The militia followed their vehicle. Their vehicle rolled My father's [limb] was [injured] and the Imam was killed. I believe they were from the Bader militia because they had harassed and attacked our family several times. They attacked my father because he was a Sunni Muslim and worked for [Imam E].

    About 1 week later, the militia arrived at our house. I was not home at the time. My mother and brother, [Mr A] were inside the house. They asked for my father's whereabouts. She replied that she didn't know where he was. They questioned why she hadn't buried him if he was dead. They beat [Mr A] in the head and on his ribs. They threatened my mother that if my father and I did not come forward 'we know how to find them.'

    My mother telephoned me and told me what had happened. She said there was a truck was parked outside and that it was a typical Bader militia truck. It was a white pickup truck My father and I returned home. I took [Mr A] to [Hospital 1] in [Town 1]. My father drove my other [brothers] and my mother to a farm outside [Town 1] and I took [Mr A] to a friend's house for 4 months because the Bader militia would have killed us had we remained at home.

    My wife and my children remained at my family's home. I intended to return home to collect my wife the following day however, the Bader militia arrived at home and asked her for my family's whereabouts. They beat her with batons across the back. My son picked up a stone and threw it at the militia. One of the militia pulled out his gun and shot my son and killed him.

    I was walking home at the time (1 day after driving [Mr A] to [Mr F]'s house). As I approached the house, I heard gunshots. I saw my wife crying. I saw my son's body in the courtyard. The militia had left at that time. My wife told me that they wore masks and black clothes. I believe they were the Bader militia.

    My father, mother and [other] brother's remained on the farm. I telephoned my father from the house that day and told him what had happened. I drove my wife and children to reunite with my father, mother and brothers at the farm where they were residing at the time. I returned the live at [Mr F]'s house with [Mr A].

    I left Iraq 4 months later with [Mr A]. We travelled to [Country 1] together, however were separated by the smugglers in [Country 1] where we caught different boats to Christmas Island. I did not bring my wife and other children with me because I did not have sufficient funds to pay for their departure from Iraq.'

    At question 45, the visa holder answered 'Please refer to Statutory Declaration, sworn on 25/12/2011' to the question 'What do you fear may happen to you if you go back to that country?'

    The visa holder's statement provides the following:

    'I believe if I return to Iraq I would face a real chance of being killed by the Bader militia.

    The militia will kill me and my brothers.'

    At question 46, the visa holder answered 'Please refer to Statutory Declaration, sworn on 25/12/2011' to the question 'Who do you think may harm/mistreat you if you go back?'

    'I believe if I return to Iraq I would be at real risk of being killed by the Bader militia on account of my religion as a Sunni Muslim.'

    At question 47, the visa holder answered 'Please refer to Statutory Declaration, sworn on 25/12/2011 'to the question 'Why do you think this will happen to you if you go back?'

    The visa holder statement provides the following:

    ‘My father worked for [Imam E] which made my father a greater target of the militia. I will be a greater target as such.'

    At question 48, the visa holder answered 'No' and 'Please refer to Statutory Declaration, sworn on 25/12/2011.’ to the question 'Do you think the authorities of that country can and will protect you if you go back? Why not?'

    The visa holder's statement provides the following:

    'The government cannot protect me because the militia controls or influences many government departments in Iraq. The Government is predominantly Shia Muslims. They will not protect me because lam a Sunni Muslim.

    I will not be able to relocate to any province in Iraq, including in Basra because Basra and other towns are under the militia's control.

    I will be identified as a Sunni Muslim by the manner in which I pray and will be harmed by the Bader militia.

    I have been identified as the son of my father who worked for an outspoken Sunni religious leader. I will not be able to relocate anywhere for this.'

    On 23 May 2012, on the basis of this information as well as meeting all other relevant criteria, the visa holder was granted a Protection visa on the basis that he engaged Australia's protection obligations under the Refugees Convention.

    Since the grant of his Protection visa, despite his claimed fears, the visa holder has travelled to Iraq. Departmental records indicate that between the following dates the visa holder had travelled to Iraq:

    ·Departed Australia [in] October 2013 and returned [in] June 2014.

    Upon his departure [in] October 2013, the visa holder completed and signed an outgoing passenger card. On that card the visa holder answered 'Iraq' to the question 'Country where you will spend most time abroad' The visa holder also indicated on the outgoing passenger card that the purpose of his travel to Iraq was for visiting friends or relatives.

    According to information the visa holder provided to the Department in his visa application, including at his Protection Obligations Assessment interview, which took place on 25 December 2011, the via holder stated that his family live in [City 1], which is located in the Basra Governorate in Iraq. The district of [City 1] and the greater governorate of Basra was the visa holder's former place of residence from which he sought protection.

    Upon his return to Australia on [date] June 2014, the visa holder completed and signed an incoming passenger card. On that card the visa holder answered 'Iraq' to the question 'Country where you spent most time abroad.' The visa holder's total period of overseas travel was 8 months and 21 days (264 days).

    On [date] February 2016 the visa holder's brother, [Mr A] returned to Australia from overseas travel and was interviewed by officers of the Department at [the airport]. During the interview the visa holder's brother informed the officers that he is a Shia Muslim. Therefore, I consider that the visa holder is also a Shia Muslim rather than a Sunni Muslim as claimed in his Protection visa application. The visa holder was granted his Protection visa on the grounds that he faced a real chance of harm by the Shia militia of Iraq as a Sunni Muslim. Given this information it appears that the visa holder has provided incorrect answers in his application for a Protection visa. It appears that the visa holder did not and does not hold the adverse profile as claimed in his Protection visa application.

    The Protection visa was granted on the basis that the visa holder satisfied the Minister that he engaged Australia's protection obligations under the Refugees Convention. The visa holder has consistently maintained that he will be seriously harmed or killed if he returned to Iraq. However the visa holder has voluntarily returned to Iraq for approximately eight months to the Basra Governorate without apparent issue or impediment. The visa holder's claim that he faced persecution by the Bader militia as a Sunni Muslim was fundamental to the determination that he is a person to whom Australia has protection obligations. There is evidence that the visa holder is a Shia Muslim, which contradicts his claims. As the incorrect information the visa holder provided was material to this determination it appears the visa holder may not have engaged Australia's protection obligations.

    I consider that the visa holder may not complied with section 101(b) of the Act as he has provided incorrect information to the following questions on the Form 866:

    At question 42, the visa holder answered 'Iraq' to the question of 'I am seeking protection in Australia so that I do not have to go back to', I consider this to be an incorrect answer because the visa holder voluntarily returned to Iraq for approximately 8 months, where he claimed to have faced persecution from the Bader militia.

    At question 43 the visa holder stated that he left Iraq on 21 September 2011 'because I feared being killed by the Bader militia. They are Shia Muslims.' I consider this is incorrect information because the visa holder voluntarily travelled to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any apparent issue. Based on the answer the visa holder provided on his outgoing passenger card, the visa holder stated the purpose of his travel to Iraq was for visiting friends or relatives, I consider that he voluntarily returned to [City 1] in the Basra Governorate, his former place of residence from which he sought protection. I also consider that the visa holder is a Shia Muslim, based on information his brother provided to the Department at an interview [in] February 2016.

    At question 45, the visa holder stated 'I believe if I return to Iraq I would face a real chance of being killed by the Bader militia. The militia will kill me and my brothers.' I consider this to be incorrect because the visa holder voluntarily returned to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any incident.

    At question 46, the visa holder stated that 'I believe if I return to Iraq I would be at real risk of being killed by the Bader militia on account of my religion as a Sunni Muslim.' I consider that the visa holder has provided incorrect information because the visa holder voluntarily travelled back to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any apparent issue or coming to any harm. I also consider that based on information provided by the visa holder's brother to the Department [in] February 2016, that the visa holder is a Shia Muslim, rather than a Sunni Muslim as claimed in his Protection visa application.

    At question 47, the visa holder stated that he feared being killed upon return to Iraq because 'My father worked for [Imam E] which made my father a greater target of the militia. I will be a greater target as such.' I consider this to be incorrect information because the visa holder has since voluntarily returned to Iraq for a period of approximately 8 months and has returned to Australia without apparent harm or incident.

    At question 48, the visa holder answered 'No’ to the question 'Do you think the authorities of that country can and will protect you if you go back?' and further explained in his statement that ‘[T]he he government cannot protect me because the militia controls or influences many government departments in Iraq. The Government is predominantly Shia Muslims. They will not protect me because lam a Sunni Muslim. I will not be able to relocate to any province in Iraq, including in Basra because Basra and other towns are under the militia's control. I will be identified as a Sunni Muslim by the manner in which I pray and will be harmed by the Bader militia. I have been identified as the son of my father who worked for an outspoken Sunni religious leader. I will not be able to relocate anywhere for this.' I consider the above answer and statements to be incorrect because since the grant of his Protection visa the visa holder has voluntarily returned to Iraq - the country from which he claimed persecution - for a stay of approximately 8 months without incident. Based on the answer the visa holder provided on his outgoing passenger card, the visa holder stated the purpose of his travel to Iraq was for visiting friends or relatives, I consider the visa holder voluntarily returned to [City 1] in the Basra Governorate, his former place of residence from where he claimed to have faced persecution from the Bader militia. I also consider that based on information provided by the visa holder's brother to the Department [in] February 2016, that the visa holder is a Shia Muslim, rather than a Sunni Muslim as claimed in his Protection visa application.

    I consider therefore that the visa holder did not hold the claimed adverse profile with the militia as declared in his Protection visa application. The visa holder's voluntary return to Iraq is in contradiction with his claims that he would be or were a target of the militia and that he would be killed by militia groups if you returned to Iraq.

    The visa holder was granted his Protection visa on the grounds that he faced a real chance of harm by the Shia militia of Iraq as a Sunni Muslim. In view of his voluntary travel back to Iraq one year after his visa grant for a significant period of time and his brother's admission to the Department of being a Shia Muslim, I consider that the visa holder provided incorrect answers to questions 42, 43, 45, 46, 47 and 48 in Part C of his Protection application Form 866. The visa holder's Protection visa therefore, is liable for cancellation for non-compliance with section 101(b) of the Migration Act 1958.

    PART C: DECISION ABOUT NON-COMPLIANCE (S 108)

    Section 108 of the Migration Act 1958 provides:

    The Minister is to:

    (a)      consider any written 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.

    Does the visa holder agree that there was non-compliance? No

    If no, reasons why the visa holder disputes that there was non-compliance:

    The visa holder has provided the following information as part of his response (verbatim):

    'Background

    I was born [date] in [City 1] Basra Iraq. I have 3 younger brothers, [Mr A], [Mr G] and [Mr H] the eldest of my brothers. My father's name is [name deleted] and my mother's name is [name deleted]. My father passed away in 2015. My brother [Mr G] and [Mr H] live in Iraq with my mother, wife and children.

    Living in Iraq was very difficult. We faced a lot of discrimination because we are Sunni Muslim. Since the fall of the Saddam Hussein in 2003, there has been so much hatred and discrimination between the Shia Muslims and the Sunni Muslims. The Shia were in control of the government and were in authority.

    I am married to [Ms I]. We got married in 2003. We have 5 children together, they are:

    [names and ages deleted]

    My eldest son [Child J] was killed in 2011 by the Bader Militia.

    I fled Iraq and came to Australia in 2011. I was about [age] years old. The Badir Malitias (sic) wanted to kill me and my father and brother [Mr A]. They had already killed my son and I had to leave. I arrived in Australia and was placed in [a detention centre]. I stayed there until I was granted the Protection (Subclass 866) visa on 23 May 2012.

    Life in Iraq

    When I was born, my family and I lived in [City 1] which is in Basrah. [City 1] is a very big city. We lived in a house that belonged to my father. I attend school up until grade 5. I then left school and helped my father. I used to do small jobs like selling vegetables, cleaning the streets' and cleaning the Mosque. We were always in fear because we were Sunni Muslims. Life was very difficult.  We used to get help such as donations from the Mosque.

    When I was about [age] years of age I got married. My wife [Ms I] is a distant relative of mine. I was about [age] years old. She was also the same age. We had a very small wedding with close family and friends. During our marriage we lived with my parents in their house.

    Life in Iraq was very difficult. Although we were Iraqis, there was a lot of discrimination against us. The Shia Muslims were in authority and hated the Sunni Muslims. We were not considered Muslims by the Shia because we were Sunni Muslims. There was always conflict between the Sunni Muslims and the Shia Muslims in the area that I live in, Basrah Iraq. We were in constant fear.

    My father used to go to the Mosque called [Mosque 1] in the city of [City 1]. My father got a job as the driver for the Imam of the Mosque. The Imam's name was called [Imam E]. He was a Sunni Sheik My father was his driver for about 2 years. He would pick up the Imam and take him to the Mosque and drive him back home again.

    [Imam E] would sometimes speak of the Bader Militia in his sermons. He used to refer to them as "killers".

    In May 2011 my father was driving [Imam E] home. They were attacked by the Bader Militia. They shot the Imam dead. My father escaped with [an injured limb]. They attacked my father and the Imam because they were Sunni Muslims.

    The Bader Militia came to our house about 1 week after the killing of the Imam. They wanted to know where my father was. My brother [Mr A] was at the house with my mother. [Mr A] was beaten by them. They beat him on the head and on his rib area. He was hurt badly.

    My mother telephoned me and told me what happened. She also told me that there was truck outside of the house which belonged to the Bader Militia. My father and I came to the home when the truck had left. [Mr A] needed urgent attention so I took him to the hospital in [City 1] called [Hospital 1]. I then took [Mr A] to a friend's house. My friends name is [Mr F]. My father took my mother and my other 2 younger brothers to a farm that was on the border of [City 1]. Almost on the outside of [City 1]. It was about 50km from where our house was.

    My wife and children stayed at the house. My father and I arranged that I would take my wife and children to the farm and that he would take my mother and brothers. I was planning on taking them to the farm the following day however, the Bader Militia came to the house and asked where we were. They beat my wife. My son [Child J] tried to help her. He threw stones at the militia and one of the militia's shot him with a gun and he was killed. My son was only about [age] years of age. At that time, I was coming to the house. When I got there the Bader militia had gone. I found my wife crying and I looked and saw my sons body on the ground.

    I drove my wife and my 4 children to the farm to be with my parents and brothers at the farm. I went and stayed with [Mr A] and [Mr F]'s house. We stayed there for about 4 months.

    The Move to Australia

    After 4 months, [Mr A] and I left Iraq to come to Australia. [Mr A] was very young when he left with me. He was about [age] years old. I had to take him with me because he was a target. I made arrangements for the both of us to leave Iraq.

    We travelled to [Country 1] together. We were separated in [Country 1] and came on different boats to Christmas Island. We only had enough money for [Mr A] and I to leave Iraq. We didn't have enough to bring the rest of the family. [Mr A] and I had to leave Iraq, if we didn't leave, we would have been killed.

    We remained [in a detention centre] until we were granted the Protection visa. We were granted our visas on 23 May 2012.

    Protection (Subclass 866) visa in 2012.

    The DIBP allege that I have provided incorrect information in the notification letter to consider cancelling my visa. I stand firmly by my statutory declaration I provided the DIBP with my protection visa application dated 25 December 2011. This is a trite encounter of what happened and why I fled Iraq with my brother [Mr A].

    I do not agree with the DIBP that I provided incorrect information. I am a Sunni Muslim. I have always been a Sunni Muslim and I still follow the faith of a Sunni Muslim.

    When I left Iraq in 2011, I was in fear of my life from the Shia group, Bader Militia. Jam still in fear of my We. I acknowledge that I returned to Iraq in October 2013. However, I spent my time in hiding and was there for the purpose of my family.

    Sunni Muslim

    The DIBP allege that I am Shia Muslim based on what my brother [Mr A] said to the officer of the Department during an interview at the International airport upon his return back from Iraq. [Mr A] had stated that he was a Shia Muslim. The DIBP now allege that l am not a Sunni Muslim and in fact say that I am a Shia Muslim because of what my brother stated. I do not agree with the allegation. I have always been of Sunni faith. My brother [Mr A] has always been of Sunni faith.

    My brother [Mr A] is almost [age] years of age. He left Iraq with me when he was about [age] years old. He was a young boy that had gone through a very rough time and was running for his life. My brother [Mr A] is scared of authorities because of his experiences in Iraq as a Sunni. He was scared and said he was Shia so that he could be left alone. My brother [Mr A] had returned to Iraq after he buried our father who passed away on 15 October 2015.

    The Mosque that my father worked for was called [Mosque 1], is known to be a Sunni Mosque. The Imam that my father was the driver for was a Sunni Muslim. My father had always gone to that Mosque and practiced as a Sunni Muslim. We all have always followed the faith of the Sunni school of thought. There is no evidence that the DIBP has to make an allegation that I am not a Sunni Muslim. They have based this on my brothers comment without considering why he stated it I never lied to the DIBP and I stand firmly by the fact that lam a Sunni Muslim and I continue to be a Sunni Muslim.

    [date] October 2013 — Trip to Iraq

    It is correct that I travelled to Iraq on or about October 2013. I came back to Australia on or about June 2014. I travelled approximately 1 and a half year after I was granted the visa. I felt that I was in a position where I had no other choice but to go to Iraq.

    I received a telephone call from my mother and wife who were both crying. My mother was sick. She suffers from a [medical] condition and has had [surgery], amongst other conditions. She insisted that I come and see her. She was convinced that she was going to pass away and wanted to see me. I am the eldest son and I have an obligation to my parents and family. That's our culture. I couldn't refuse.

    My wife has [a medical condition] and she is also not well. She has not been the same since our son was killed. She was very concerned for the children and begged me to come. I felt that I had to go and see my children. I had to check on them. I knew the risks involved but after losing my eldest son I felt the need to see if my children were safe.

    I got in contact with my father's friends [Mr K], who was helping my family. He met me at the airport in Iraq. He knew people that worked there and handed them money so that I could leave the airport through another exit I did not leave the airport through the main doors.

    [Mr K] took me to where my family were staying. It was on the border of [City 1], where the farms were. I stayed there in hiding with my family. I did not go anywhere as it was too risky. No one for (sic) the authorities knew that I was in Iraq. I stayed in Iraq for 8 months because I had to look after my family, my parents, wife and children. I risked my own life for them. I had to. My mother was taken to hospital while I was in Iraq and she had [surgery]. My wife was also sick and I couldn't leave her. I was in a very difficult position. But they are my family and I have an obligation to them.'

    My children are still stuck in Iraq with my wife. They live a hard life. They don't attend school because they are in hiding and cannot go anywhere. They are exposed to an unsafe life where being in hiding is normal.

    I feel guilty for leaving them in Iraq. I feel guilt everyday and want them to be safe and with me. I am a family man. My role is to look after my family. I would die for them. When I travelled to Iraq I was thinking about them not me. I put my life in danger for them. I didn't travel to Iraq because it was safe but rather they needed me. When living in Iraq, in that uncertainty and danger your family is your life and reason to live.

    I wanted to make a visa application for my wife and children to come to Australia. The DIBP required a lot of money which I didn't have. I want to make an application for them to come to Australia as soon as I can afford to.

    I financially support my wife and children. I send them whatever amount I can afford to from my carer payment'

    The visa holder has also provided the following documents:

    ·A translated medical report issued by [Hospital 2] dated 15 September 2013. This document states [the applicant’s mother], born [year] was transferred to [Hospital 3] and she was found to be suffering from [specified medical condition].

    ·A translated copy of a Certificate of Death provided by the Department of Health and Community census, Ministry of Health, Republic of Iraq issued [date] May 2011. This certificate advises [Child J], born [date] was deceased as of 11pm on [date] May 2011 and that his father is [the applicant] and his mother [Ms I]. The cause of death is listed as 'bullets penetrating the body — shot by an unknown person'. Place of death is recorded as 'Home'.

    ·A medical report from [Hospital 2] dated 3 December 2013. This reports advises that [Ms I] was transferred to the hospital from [Hospital 3] on 3 February 2013 and an examination concluded she was suffering [specified medical condition].

    ·A translated letter from [Sunni Organisation 1] dated 4 October 2017. This letter states "We hereby confirm [Imam E] the Imam of "[Mosque 1] located in [the City 2 area] encountered an assassination attempt on his life on [date]/05/2011. On that date, militiamen opened fire on him."

    ·A letter from [an Australian association] dated 22 October 2017. The letter advises that the visa holder has been attending the Sunni Friday sermon at [Suburb 1] Prayer Hall 'from time to time' and he commenced attending prayer at the hall in 2016.

    ·A translated letter from the Director of [Sunni Organisation 1] dated 21 December 2011. This letter states "We hereby confirm that citizen [the applicant] is a member of the Sunni community in our province; he is one of those who encountered death threats and displacement particularly after his son [Child J] was murdered on [date]/05/2011. Following this tragedy he survived attempts on his life and he and his family were displaced from their home by force."

    ·A translated letter from the Director of [Sunni Organisation 1] dated 4 October 2017. This letter states "We hereby confirm that citizens [the applicant] and [Mr A] are members of the Sunni community in our province; they encountered death threats, assassination attempts and forced displacement."

    ·A letter from the Mayor of [City 3] dated 3 October 2017. This letter states "We hereby confirm that citizens [the applicant] and [Mr A] of [City 3 area] were persecuted by (armed) militia that mushroomed in Iraq. They were constantly chased by terrorists and on [date]/05/2011 terrorists succeeded in murdering [Child J]. The persecution they encountered on ground of their Sunni faith led them to flee Iraq."

    [assessment…]

    I consider the visa holder has provided incorrect information in association with his application for a Protection visa as follows:

    ·At question 42, the visa holder stated that he was seeking protection in Australia so that he did not have to return to Iraq. I consider this to be an incorrect answer because the visa holder voluntarily returned to Iraq for approximately 8 months, where he claimed to have faced persecution from the Bader militia.

    ·At question 43 the visa holder stated that he left Iraq on 21 September 2011 as he feared being killed by militia groups. I consider this is incorrect information as the visa holder voluntarily travelled to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any apparent issue. I also consider the visa holder is a Shia Muslim, based on information his brother provided to the Department at an interview [in] February 2016.

    ·At question 45, the visa holder stated that he would be killed by the Bader militia. I consider this information is incorrect as the visa holder voluntarily returned to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any incident.

    ·At question 46, the visa holder stated that he would be killed by the Bader militia on account of him being a Sunni Muslim. I consider the visa holder has provided incorrect information as he voluntarily travelled back to Iraq for a prolonged stay of approximately 8 months after being granted a Protection visa without any apparent issue or harm. I also consider based on information provided by the visa holder's brother to the Department [in] February 2016, the visa holder is a Shia Muslim, rather than a Sunni Muslim as claimed in his Protection visa application.

    ·At question 47, the visa holder stated he feared being killed upon return to Iraq because ''My father worked for [Imam E] which made my father a greater target of the militia. I will be a greater target as such.’  I consider this to be incorrect information because the visa holder has since voluntarily returned to Iraq for a period of approximately 8 months and has returned to Australia without apparent harm or incident.

    ·At question 48, the visa holder stated that he did not believe that the authorities could protect him if he return to Iraq as he would be identified as a Sunni Muslim and persecuted by the Bader Militia. I consider this answer to be incorrect because since the grant of his Protection visa the visa holder has voluntarily returned to Iraq - the country from which he claimed persecution - for a stay of approximately 8 months without incident. I also consider that based on information provided by the visa holder's brother to the Department [in] February 2016, that the visa holder is a Shia Muslim, rather than a Sunni Muslim as claimed in his Protection visa application.

    As the visa holder has provided incorrect information I consider that his Protection visa is liable for cancellation consideration under Section 109 of the Act.

1. No issue has been raised by the applicant as to the validity of the s.107 notice.  The Tribunal considers that the notice is valid.

2. Various statements and submissions have additionally been provided to the Tribunal:

   • Statutory Declaration of the applicant dated 6 December 2018
   • Statutory Declaration of [Mr A]  dated 5 December 2018
   • Copy of original and translation of the death certificate of the applicant’s father indicating a date of death on 15 October 2015
   • Statement dated 6 December 2018 of [Sheikh B]
   • Declaration of [Mr C] dated 5 December 2018
   • Medical information and reports relating to medical conditions suffered by [Mr C]
   • Handwritten letters of [Mr C]’s children
   • Medical report dated 21 November 2018 of [a doctor]indicating a congenital and hereditary [condition] of the applicant
   • Submission dated 12 December 2018 of the applicant’s migration agent on behalf of both the applicant and [Mr A].

   Assessment

3. While civil law concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist: refer to Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32].

4. In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. The cancellation of a protection visa is a very serious matter, entailing as it does the denial of a permanent ability of the applicant to reside in Australia and having been granted on the basis of a risk to the applicant of serious or significant harm to the applicant on return to his home country. As such, any factual findings should be based on logical and probative material and not speculative information or inexact proofs. This is the approach the Tribunal has taken in the review of the evidence and in making a finding.

5. The Tribunal has listened to the recording of the Protection Obligations Evaluation interview that took place between the applicant and a Departmental officer on 25 December 2011.  In addition the Tribunal has listened to the Protection Obligations Evaluation interview that took place as part of the separate protection visa application by the applicant’s brother, [Mr A], on the same day with the same Departmental officer. The protection visa applications by both the applicant and his brother were determined by the same Departmental officer.

6. In listening to both interviews, the Tribunal has noted the consistency between the detail of the claims of the applicant and his brother. The responses to questions by both the applicant and his brother were spontaneous, natural and lacking any sense of embellishment. The applicant and his brother provided mostly consistent responses to most key issues as well as peripheral issues of detail.

7. In terms of the consistency on matters of detail not central to the claims but telling as to truthfulness, both the applicant and his brother were consistent in evidence that the mosque that the applicant’s father was the driver for was located only a short distance from the family home. Both gave consistent evidence that the preacher who the applicant’s father was the driver for was not the permanent Imam of the mosque. He would attend the mosque on Fridays to preach, and on some other days, but was not there on a full-time basis.

8. In the Tribunal hearing with respect to the cancellation decision, the Tribunal explored with the applicant and his brother, [Mr A], details as to what happened in Iraq in 2011 and in the lead-up to their departure for Iraq. The Tribunal also explored with the applicant and [Mr A] their respective return visits to Iraq, why they made the decision to return, and what they did while they were there.

9. The applicant and his brother were broadly consistent and convincing in both the original interviews and in the Tribunal hearing as to the key claims about what occurred in 2011 and their practice as Sunni Muslims in Iraq and Australia. They were consistent and convincing to the Tribunal in claims of their father being injured after militias attacked the car in which the preacher of the mosque was being driven by the applicant’s father, resulting in the preacher being killed. There was consistent evidence that this incident caused the applicant’s father to go into temporary hiding. Both were consistent that a week after the incident, the militia came to the family home because they had assumed that the applicant’s father had been killed but had not seen a funeral in relation to him. They had an adverse interest in the applicant’s father and wanted to find out his situation. There was consistent evidence that the applicant was physically attacked by the militia during this visit.

10. Both applicant and his brother provided similar and consistent detail in the hearing of being able to exit the airport at Basra, on their respective return visits from Australia, through arrangements that that family friend, [Mr K], had facilitated through bribery. This required both the applicant and his brother on their respective visits to wait in an area before entering immigration security to be approached by an individual who took their passports and arranged for the passports to be stamped and returned to them, prior to them both exiting the airport. Both the applicant and his brother indicated that they had brought money with them to pay [Mr K] at least some of the bribery costs.

11. Both the applicant and his brother indicated that during their respective visits from Australia, they only remained at the farm on the outskirts of Basra where their families were living.

12. Both the applicant and his brother in the Tribunal hearing and interviews gave convincing and consistent evidence as to growing up Sunni Muslim in Iraq in a predominantly Shia neighbourhood. Both the applicant and his brother gave evidence in the hearing of attending a number of Sunni Muslim mosques in Australia, but with that religious observation being sporadic. Both gave evidence in the hearing that following the death of their father in 2015, they increased their religious observation and attendance in Australia.

13. [Sheikh B] gave evidence in the hearing as a witness by telephone. He confirmed a written statement dated 6 December 2018 that had been provided to the Tribunal. In the hearing, he indicated that both the applicant and his brother began attending the [Suburb 1] Prayer Hall of which he was Imam from early 2016.  They attended from time to time at least up until [Sheikh B] ceased being Imam in December 2017. [Sheikh B] indicates that the Prayer Hall observes Sunni Muslim thoughts and traditions and that as far as he was aware, all attendees were Sunni Muslims.

14. The Tribunal notes that this evidence by [Sheikh B] is significantly probative of the claims by the applicant and his brother to be Sunni Muslims. It constitutes independent third-party evidence that the applicant and his brother were practising as Sunni Muslims from the early part of 2016. This significantly predates the Department flagging concerns to the applicant and his brother when it provided respective notices of intention to cancel the visas in September 2017. The delegate who cancelled the protection visas speculated that Sunni Muslim practice could have been ‘staged’ after [Mr A] revealed to immigration officials in February 2016 that he was a Shia Muslim. The Tribunal is not satisfied of this. In the absence of the government flagging immediately adverse consequences as a result of this admission, the Tribunal does not think that the applicant or his brother would have been alerted to a potential cancellation of the protection visas causing them to fraudulently undertake different religious practices.

15. The Tribunal notes the following credibility concerns with the applicant and his brother’s claims. In relation to their religion, as indicated, their claim to be Sunni Muslims is contradicted by [Mr A] indicating to immigration officials on return to Australia in February 2016 that he was a Shia Muslim. Written statements on behalf of [Mr A], and as indicated by him in the hearing, are that he said he was Shia in fear, as Sunni Muslims are associated with ISIS and that a truthful answer could implicate him to immigration officials. He also indicated that he was not in a proper frame of mind because of trauma involving the death of his father.

16. The additional credibility concern relating to the applicant’s claimed religious denomination is the fact that, when [Mr A] was married in 2017, he was married by a Shia Muslim cleric. It has been explained in written statements and in the hearing that this was because [Mr A]’s wife to be, [Ms D], was a Shia Muslim and that she wished to be married by a Shia cleric.

17. [Ms D] gave evidence to the Tribunal as a witness consistent with written claims and submissions in this respect. She confirmed that her husband is a Sunni Muslim and that this was not a barrier to their relationship. She gave evidence that it is not unusual in Iraq, particularly in Baghdad, for there to be marriages between Sunni and Shia Muslims. [Mr A] similarly gave evidence that their love for each other was the paramount issue and different religious denominations were not an issue.

18. In relation to the visit by the militia in 2011 when the applicant was hit on the head, there is an inconsistency in evidence as between the Protection Obligation Interviews of both the applicant and his brother.

19. [Mr A] indicated in interview that the applicant’s wife and children were not in the family home when the militia visited and attacked him and threw his mother to the ground. In contrast, when the applicant gave evidence in his interview, he indicated that they were present. It is noted that the applicant was not at the home when the militia visited, but it might be expected that his wife would have informed him if she and the children had been present. The applicant speculated in his interview, when the inconsistency was put to him, that the inconsistency in evidence of his brother can be explained by his brother’s age.

20. The overarching credibility concern which the delegate used to determine that the applicant and his brother’s protection visas should be cancelled based on incorrect information was the return visits by the applicant and his brother for a period of eight months and five months respectively. It is significantly on this basis that it is found that the underlying claims of both the applicant and his brother are untrue. It has essentially indicated that claims by the applicant and his brother that they could not return to Iraq must be untrue because they did return.

21. The Tribunal has very carefully considered the respective return visits by the applicant and his brother to Iraq, for eight months and five months respectively, as adverse to the applicant and his brother in considering whether incorrect information was provided in their respective protection visa applications. It has also taken into account the adverse credibility issues identified on a cumulative basis. These matters are not insignificantly adverse to the applicant and his brother.

22. However, these adverse matters are outweighed in the Tribunal’s view, by the convincing nature and broad consistency with the claims by the applicant and his brother over time and corroborative evidence relating to religion. The applicant and his brother, both in the Protection Obligation Evaluation interviews and in the Tribunal hearing, were candid and direct in evidence to the Tribunal without significant hesitancy or equivocation. There has been overall consistency of most key claims in the interviews and hearing and with written claims.

23. In relation to the religion of the applicant and his brother, the Tribunal is satisfied that they are Sunni Muslims. The Tribunal accepts intimidation and stress for [Mr A], in the context of his father just dying, in telling immigration officials in Australia that he was Shia Muslim instead of Sunni Muslim. The Tribunal accepts that [Mr A] operated from a cultural perspective that to reveal he was a Sunni might attract adverse attention from immigration officials.  The Tribunal found the evidence of the relationship between [Mr A] and his wife and their respective Sunni Muslim and Shia Muslim beliefs and practices as convincing. The Tribunal accepts that [Mr A]’s wife wished to be married in a Shia Muslim ceremony. 

24. The Tribunal has also taken into account supporting documents from Iraq provided by the applicant, attesting to him and other family members being Sunni Muslims. This provides some reinforcement for the nature and consistency of other evidence. However, the Tribunal has taken into account the ready ability to obtain fraudulent documents in Iraq.  This has limited the weight given to these supporting documents.

25. In terms of claims of incorrectness on the basis of religion, as the Tribunal considers that the applicant is Sunni Muslim, it does not consider that he has provided incorrect information in the application for the protection visa in this respect.

26. In terms of claims as to what happened in 2011, the Tribunal does not consider the inconsistency as between the applicant in his brother as to whether his brother’s family were present when the applicant was attacked as a significant inconsistency. The Tribunal considers that this could well be explained by confusion, flaws in memory or the passage of time, compounded by trauma and stress. An inconsistency on a minor issue of this nature is not fundamentally undermining of the truth of the applicant’s claims or those of his brother. It is a matter of tangential relevance. The Tribunal takes into account the age of [Mr A] and the surrounding stress of the situation for [Mr A], noting that he was physically attacked in the incident. The Tribunal accepts imperfection and flaws in memory.

27. The s.107 notice essentially states that the applicant has provided incorrect information in his application form for the protection visa because he claims to have a fear of returning to Iraq, and that if he does so he may be seriously harmed or killed, yet he returned to Iraq.

28. As independent information makes clear, the overall security situation in Iraq over time has been significantly problematic in a way that affects many segments of the Iraqi population. Danger exists for both Shia and Sunni Muslims from militias of opposing religious beliefs. The security situation is also significantly fluid.

29. In relation to the return of the applicant to Iraq, the Tribunal does not consider that this in itself undermines fears of the applicant in returning to Iraq on a permanent basis and on a basis on which he is able to openly and freely participate in society and practise his religion.  The Tribunal accepts that the applicant on his return to Iraq for a number of months was cautious and discreet in his whereabouts and interactions in society generally. The Tribunal accepts the very considerable pull on the applicant to have felt the need to return to Iraq despite significant concerns, because of family issues, most particularly his wife and children being in Iraq and the health of his wife and parents. It is quite a different thing for the applicant to return discreetly to Iraq for a matter of months and live very cautiously and discreetly, as compared to returning permanently and being able to live openly, including practising his religion.

30. The Tribunal is not satisfied that the applicant or his brother provided information in their protection visa application forms that was incorrect concerning the claimed events of 2011 or otherwise.  The Tribunal is satisfied that the applicant’s father was the driver for a Sunni Iman and was injured in an attack which killed the Imam.  The Tribunal is satisfied that militia subsequently visited the family home and injured the applicant. The Tribunal is satisfied that shortly thereafter, the militia returned and killed the applicant’s son. The Tribunal is satisfied that the applicant went into hiding with his brother at a friend’s home and the remainder of the family sought refuge at the farm. The Tribunal is satisfied that the applicant and his brother left Iraq for these reasons.

31. Therefore, in providing information to this effect in the application form for the protection visa the Tribunal is not satisfied that the applicant has provided incorrect information.

32. The Tribunal does consider that the applicant has exaggerated in his application form and supporting statement and in subsequent interviews the categorical and unqualified nature of his claimed inability to ever return to Iraq. That follows from the return of the applicant to Iraq for some months. However, the Tribunal is not prepared to find that that results in the applicant as having provided incorrect answers in his application form. It might not be seen as unusual that an applicant will somewhat embellish claims and fears of harm and indicate an unqualified inability to return to the country of origin. Embellishment is not unlikely even where there are claims which, without embellishment, would meet the criteria for protection. The Tribunal is not satisfied that this exaggeration amounts to the provision of incorrect information, taking into account the threshold that the Tribunal must reach, outlined earlier, to be satisfied of incorrectness for the purpose of cancellation decisions.

33. Considering all of the evidence, and in all of the circumstances, the Tribunal is not persuaded that the applicant has provided incorrect answers as claimed on the various responses in the protection visa application form.

34. 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.

35. Significant evidence was provided that the applicant is a carer in Australia, for which he receives government benefits, for [Mr C], who suffers from serious health conditions. Evidence was provided of the close relationship that exists between the applicant and [Mr C] and his children and the considerable difficulty in a practical and emotional sense that would be created if the applicant had to return to Iraq. This evidence was provided in relation to the discretion that the Tribunal would have to cancel the visa if the ground of cancellation was made out. Given that the Tribunal has not been satisfied that the ground of cancellation has been made out, it is not necessary for the Tribunal to consider its discretion.

    DECISION

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

    David McCulloch
    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.