1811432 (Refugee)

[2019] AATA 6740

1811432 (Refugee) [2019] AATA 6740 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811432

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:26 September 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 26 September 2019 at 5:10pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – applicant twice returned to Iran – political opinion – participating in political protests – fear of arrest – fear of killing – passport renewal – facilitating voting in future Iranian elections – family medical emergencies in Iran – compelling reasons for return visits – decision under review set aside

LEGISLATION

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

CASES

Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The 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.

8. The Departmental file contains a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 27 November 2017, which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (Visa applications to be correct)  of the Act.  He was advised to respond in writing.  On 19 December 2017, the applicant’s representative responded in writing to the NOICC.  Another NOICC was sent to the applicant dated 28 February 2018, which, according to the delegate in their decision record (to cancel the visa) was to ‘ensure that the applicant’s claims for protection were quoted correctly’.  The applicant’s representative responded to that notice in writing on 14 March 2018.  Having regard to both NOICCs (and the reasons for sending a second NOICC), the Tribunal takes the NOICC dated 28 February 2018 as the correct NOICC for the purposes of the review.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

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

    Section 101(b) - visa applications to be correct

11. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application, lodged on 11 October 2012.

12. Specifically, as set out in the notice, at the time the applicant completed Form 866C ‘Application for a Protection (Class XA) visa’ and provided answers to a number of questions including about his name and date of birth (questions 1, 8).  He stated in answer to question 42 that he was seeking protection in Australia so that he did not have to go back to Iran.  In answer to questions 43 to 48 in that form about why he left Iran and why he fears returning there (for example) the applicant referred to ‘any documents which form part of the previous protection request and held by DIAC’.  Included in his protection application was a statement of claims in which the applicant submitted as follows (as reproduced in the NOICC):

    I left Iran because I was at risk of being persecuted by the Government for political reasons. I am politically aware and active.  I was outspoken about my views.  I became active during university.

    I started being politically active when I was at [University 1] during the Presidential election of 2005.  I was suspended for one term because of my activities around the time of the election.

    Due to my activities at [University 1] I was expelled from the University permanently.  My expulsion happened in January 2007.  There was no other reason for my expulsion other than for my political activities.  I was especially supportive of another student, [named] who was the editor of a [magazine] that was openly critical of the government.  I was banned from studying at a government university for two years.

    During the elections of 2009 I was at [another] University and I became active again but not as much as in 2005. We had some demonstrations at the University and we were chanting slogans against the government.  I was cautioned by security officials at the university.  I also attended protests on the streets in 2009 after the election.

    I attended a protest in February this year in the area of [Location 1] and extended [a nearby location].  This was the spirit of the protests all over the Middle East.

    During the protest in February 2011 I was arrested and detained.  I was taken to a Police security base near [a named] Police Station in [Location 1].  At the Police security base they started to open files on us.  I was there for less than a day.  I was put in a cell.  I was interrogated that day.  They made me sign a document, they told me they would watch me, and they fingerprinted me.  My father came got me out that same day using a connection that he had.  After that I had to present myself whenever they requested it.  They checked on me randomly twice since I was released.

    I was under surveillance and at any time they could have decided to harm me.  I was their mercy.  I had a record with them and that would also affect me in getting other work.  I was extremely afraid of the government’s security forces.  I managed to leave without being stopped.

    I also fear that at the airport immediately upon my return I will be detained and questioned.  I will be detained and punished because of my political views and activities.  It will be worse than before.  I will lose my family and my life.  The government will persecute me.  I fear Sepah and other agencies who are working under the government.  I also fear at the airport immediately upon my return I will be detained and questioned.  I believe they will try and kill me.  It is the government that will persecute me, therefore they will not protect me. I will not be safe in any part of Iran.  The government has control of the whole country.  There is no place I can hide.

13. On the basis of this information – including the applicant’s claims to be at risk of being detained and questioned immediately on return to Iran due to his political views and activities - the applicant was found to be a refugee and granted a protection visa on 22 October 2012.

14. The NOICC recorded however that subsequent evidence (that is movement records and passenger cards) before the Department indicated that the applicant had returned to Iran twice since the grant of his permanent visa: from [October] 2013 to [November] 2013 and from [March] 2016 to [April] 2016.  The NOICC also noted the Department had evidence that the applicant was issued a new Iranian passport [in] 2012, [soon] after being granted the protection visa. 

15. The notice records that because the applicant returned twice (for a total of seven weeks) to a country he sought protection from, engaging the authorities at the border whilst entering and departing without apparent impediment or harm (or being detained) and alerting the Iranian authorities to his intended travel by obtaining a new Iranian passport in [2012], the delegate formed the view that he did not hold the adverse profile that he claimed and considered he fabricated his claims to facilitate the grant of the visa.  The delegate concluded that the applicant provided incorrect information at the protection visa application stage in relation to answers to questions 43 to 48. 

    Response to the NOICC

16. In his written response[1] to the 28 February 2018 notice, which sets out this information, the representative submits that the applicant did travel back to Iran during the periods in question, however he had compelling and compassionate reasons to do so, despite potential risks.  That is he returned in October 2013 because his mother was in a coma, after a [medical condition].  It is submitted he spent three weeks in Iran during that time and maintained a low profile.  The applicant provided a copy of the original medical report (untranslated) regarding his mother’s [medical condition] to the Department. 

    [1] Dated 14 March 2018

17. The reason the applicant returned to Iran in March 2016 was, it is submitted, to see his family members – specifically his parents and sister – who were injured in a serious car accident in late December 2015.  He provided copies of the police report, medical documents and some photographs showing his injured family members to the Department.  It is submitted that he stayed in Iran for less than a month and although he kept a low profile, he noticed suspicious activities around his parents’ home around a week prior to his departure, realising he was under surveillance.  On one occasion the applicant was stopped by a few men in plainclothes with beards (similar to the regime’s agents) who asked for his ID documents and residential address; they let him go after checking his identity. Scared, the applicant changed his ticket and left the next day.  The representative submitted that if the applicant decided to stay longer, there is no doubt he would face serious and significant harm.  The representative also submitted that the fact the applicant did not face more serious issues before he left Iran could be attributed to lack of proper organisational links between the authorities there, referring to a section of a superseded Department of Foreign Affairs and Trade (DFAT) report[2] to support his contention in this regard. 

    [2] DFAT Country Information Report, Iran, 21 April 2016 at 5.3 and 5.4

18. In his response to the NOICC, the representative also submitted that visiting Iran does not mean the applicant provided incorrect answers in regards to his fears before leaving Iran in 2011 and reasons for leaving.  He submits that the applicant had a fear of persecution at the time of the visa application and the fear continues; that the applicant was extremely fearful on return; the applicant’s relatives and friends were unaware of his presence; he only stayed with family and avoided an unnecessary presence in public; he tried to keep a low profile; and he stayed less than a month each time.  He also submits that the applicant was noticed by the Iranian authorities on his last visit in March 2016.

19. On 19 April 2018, the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the NOICC and assessed the applicant did not comply with s.101(b) of the Act. The decision records that the delegate considered the applicant’s response to the notice but was not persuaded.

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

    Review of cancellation decision

21. On review, the applicant submitted a statutory declaration dated 17 September 2019 in which he details why he obtained a new Iranian passport and returned to Iran twice after his protection visa was granted and what took place when he was there. 

22. In a pre-hearing written submission provided to the Tribunal the (new) representative argues that there was no non-compliance as described in the NOICC, submitting in summary as follows:

    a.The applicant’s explanation as to why he obtained a new Iranian passport in [2012] – to vote in future Iranian elections – is plausible and consistent with his protection claims insofar that it demonstrates his political awareness and commitment to effecting change in Iran.

    b.As people may apply for passports for many different reasons (including as evidence of their identity, to travel to other countries or to be able to vote), the delegate’s assertion that doing so alerted the Iranian authorities to the applicant’s travel plans is questionable.

    c.The applicant’s returns to Iran are not inconsistent with his claims at the protection visa application stage to fear harm at the hands of the Iranian authorities on political opinion grounds. This is demonstrated by the fact the applicant returned to Iran both times due to compassionate and compelling circumstances; he was fearful of his safety on both returns to Iran but felt he had to go nonetheless; he only travelled to Iran for brief periods (three and four weeks); when he departed Australia in October 2013 the applicant told custom officials that he was not certain he would return (to Australia) due to his fears of being detained by the Iranian authorities; he maintained a low profile in Iran; and during his second visit to Iran he had an altercation with the authorities and believes he was under surveillance.

    d.The fact that the applicant returned to Iran – which he has never hidden – does not mean the earlier information he provided about his protection claims is incorrect.  Simply returning to Iran – one and then four years later – does not mean he provided incorrect information earlier.

    e.Some of the information considered incorrect by the delegate relates to the applicant’s fears of what may happen to him at the airport on return on account of his adverse political profile: the fact nothing happened when he did return to Iran in 2013 and 2016 does not mean he did not hold those fears when he applied for protection.

    f.Further, the applicant’s fears of being monitored by the Iranian authorities did in fact materialise when he returned in 2016. 

23. Material provided to the Tribunal included:

    ·A translated[3] forensic report regarding the applicant’s mother dated [in] November 2013.

    ·A photograph of the applicant in hospital with his mother during his 2013 visit to Iran.

    ·A letter from [a named doctor], [from a named practice], about the applicant’s mental health in late 2015 to mid-2016, dated 15 September 2019.

    ·Numerous photographs and X-rays showing the injuries sustained by the applicant’s parents and sister following their car accident [in] December 2015.

    [3] In her written submission the representative noted that the English translation previously submitted contained errors.

24. At the hearing, the Tribunal discussed the relevant contents of the NOICC with the applicant. He disagreed that there was non-compliance with the Act as set out in the notice. He said his claims at the protection visa application stage were correct.  Despite his fears he decided to return to Iran for around three weeks in 2013 and a month in 2016 because his mother had [a medical condition] in 2013 and because his parents and sister were injured (his sister seriously) in a car accident in late 2015. 

25. The applicant told the Tribunal that during both visits he divided his time between his parents’ home in Tehran and their holiday house in [Town 1], located around two hours away from the capital.  In 2013 he mainly stayed in [Town 1], when not visiting his mother in hospital.  He kept a similarly low profile in 2016, however he claimed that on return to his parents’ house in Tehran from [Town 1] one day he was stopped by some Basij members and asked to show his ID: they left once he did and did not say anything further.  The applicant had noticed Basij patrols – plainclothes men on motorcycles – around his parents’ house in Tehran a few days before.  Scared, given his political activism (and related problems) in the past, the applicant decided to bring forward his departure date from Iran and returned to Australia around three days earlier than planned.

26. The applicant said he did not return to Iran immediately after finding out about the car accident (in late 2015) because although he had been informed, his family members downplayed the seriousness of the accident, afraid that he would feel compelled to return, and place himself at risk.  However after a few months passed he became increasingly anxious, and decided to take the risk nonetheless. He said when he arrived in Iran he realised the seriousness of his sister’s injuries in particular: she suffered [specified serious injuries] (among other things) and required a number of surgeries.  His father, who suffered a [an injury], was the least affected and the applicant spent his time helping him support his mother and sister who required ongoing outpatient care, rehabilitation and in his mother’s case, mental health support.

27. At hearing, the applicant said he obtained an Iranian passport in late 2012, not long after his protection visa was granted because he wanted some ID to vote in future Iranian elections (from abroad). He said he had no plans on returning to Iran at that time.  In a statutory declaration[4] provided to the Tribunal he states that he applied then because he finally felt safe, and was not anxious about contacting the Iranian embassy because he knew they could not harm him in Australia.  At hearing when asked why he failed to mention this in his response to the NOICC, the applicant said he is unsure, noting he only discussed his returns to Iran with his then representative, who translated the contents of the NOICC to him in general terms.  When asked if there were elections scheduled around that time, the applicant said it was just in case one came up.  He noted that he keeps abreast of political developments in Iran, through reading news and other material daily in Australia.  When asked if he had any issues when applying for a new passport the applicant said the consular official asked what happened to his previous passport, and when he said he lost it, the official questioned whether he threw it out to sea.  Nonetheless, he was issued a new passport.

    Findings on non-compliance

    [4] Dated 17 September 2019

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

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[5]

   [5] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

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

3. It is not in dispute that the applicant returned to Iran for three weeks in 2013, after he was granted protection in Australia on the basis of his claims that he had a well-founded fear of being persecuted by the authorities in Iran.  It is also not in dispute that he returned to Iran for four weeks in 2016.  He returned holding an Iranian passport issued in his own name, entering and exiting Tehran airport, with no apparent difficulty.  Such actions do raise a question at the very least about the applicant’s claims to have been of adverse interest to the authorities in Iran in the past because of his political activities and profile, including his alleged arrest, detention and requirement to report when required following his release in around 2011.  As well, as highlighted by the delegate in the cancellation decision, his claims included his fears that at the airport immediately upon his return he will be detained, questioned, and possibly killed if his previous activities become known.

4. Although the applicant’s claims clearly related to fearing serious harm from the authorities of the country, the Tribunal notes they are, nonetheless, subjective claims. The applicant did not claim that he had fled Iran or that he faced being arrested at the airport if he returned there because of outstanding charges or warrants against him.

5. At hearing, the applicant said he does not know why he was able to return to Iran in 2013 unnoticed, but noted that the Iranian authorities are unpredictable.  Although of some concern, the Tribunal finds it plausible that the applicant could be in the country for a temporary period of time and go unnoticed, particularly if he kept a low profile including not working, not being politically active and limiting his stay to his parents’ residence in Tehran and holiday house in [Town 1] as claimed (which the Tribunal accepts).  The Tribunal also notes that the applicant’s claimed political activism and arrest and (temporary detention) due to his involvement in protests, occurred in early 2011, some two years before his return to Iran in October 2013.

6. The applicant claims he was noticed by the Iranian authorities on his return in 2016, and believes he was under surveillance.   The Tribunal accepts the applicant was asked by some  Basij members at the time to show his ID, and that he may have seen Basij members patrolling the area.  However given they let him go, there was no further follow up, the applicant had no problems leaving the airport on a passport issued in his own name, and the applicant did not indicate the authorities had made any enquiries about him since he left Iran in 2011, the Tribunal does not accept the Basij were monitoring the applicant in particular.  As mentioned earlier, the Tribunal finds it plausible that the applicant could be in the country for a temporary period of time and go unnoticed, particularly if he kept a low profile including not working, not being politically active and limiting his stay to his parents residence in Tehran and holiday house in [Town 1].  The Tribunal also notes that the applicant’s claimed political activism, and arrest and (temporary detention) due to his involvement in protests occurred in early 2011, around five years before his return to Iran in March/April 2016.

7. The Tribunal found the applicant a credible witness at hearing whose oral evidence about the reasons why he returned to Iran in 2013 and 2016 were consistent with his response to the NOICC and detailed statutory declaration provided to the Tribunal.  He has provided evidence in the form of medical documents, X-rays and photographs to support his claims in this regard, relating to his mother’s [medical condition] in 2013 and his family members’ car accident in late 2015, which precipitated his return in 2016.  The Tribunal therefore accepts his reasons for returning to Iran twice and accepts they were compelling reasons. Whilst it appears somewhat illogical for the applicant to return to a country where he claimed to have been harmed, arrested and detained before and feared serious harm from the authorities in the future, having regard to the particularly serious medical issues facing his immediate family members at the time, the Tribunal finds his decision to return to Iran both times, despite some residual fears, was in that context, understandable.

8. The Tribunal notes the applicant gave evidence at hearing that apart from these two visits to Iran – for compelling reasons – he has otherwise met up with his family members in [a third country], due to his ongoing fears of spending much time in Iran. It accepts his claims in this regard.

9. As well, at hearing, the applicant recounted his experiences in Iran that led to his departure from his country: in particular his political activism at university and post university.  His oral evidence was reasonably detailed, straightforward and consistent with his claims before the Department at the protection visa application stage.

10. The Tribunal accepts the applicant obtained an Iranian passport via the Iranian embassy in Australia in [2012], shortly after the grant of his protection visa.  Whilst doing so does raise at the very least a question about whether he intended to return to Iran at that time (and therefore casts doubts about his claimed fears of persecution at the visa application stage), given there could have been many reasons why he obtained an Iranian passport – including because he wished to vote in future Iranian elections as claimed – the Tribunal is not satisfied this alone is probative evidence that he provided incorrect information at the visa application stage about his protection claims and fears of the Iranian authorities.  

11. Taking into account these considerations, the applicant’s return to Iran for three weeks in 2013 and for four weeks in 2016 and obtaining of a new Iranian passport in [2012] does not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to fear persecution there on imputed (anti-government) political opinion  grounds are untrue. The Tribunal accepts he only stayed for less than a month each time, kept a low profile and, some time had passed since he was of any adverse interest to the Iranian authorities due to being involved in antigovernment protests (in early 2011).  Circumstances can change, and the fact that the applicant was not of adverse interest to the authorities during his temporary visits to Iran in 2013 and 2016 (having found he was asked for ID by the Basij, but not monitored or under surveillance) does not necessarily mean he was not fearful of the authorities at the time he made his protection visa application in 2012 or that his claims of being harmed, arrested and detained by the security forces in the past as set out in his visa application (and related written statement), were untrue.

12. For these reasons, including on the basis of the applicant’s coherent and consistent account of his claims, and the Tribunal’s acceptance that he had compelling reasons for his return to Iran in 2013 and in 2016, the Tribunal is not satisfied there is a sufficiently probative basis in this case to support a finding that the information the applicant provided about his protection claims at the visa application stage are incorrect.

13. In summary the Tribunal agrees with the delegate that the applicant’s return to Iran in 2013 and 2016 (and obtaining of a new Iranian passport in [2012]) at the very least raises a concern about the veracity of his alleged fears of being persecuted if returned there at the time of the visa application, particularly given the claimed persecutor was the Iranian authorities.  However, this does not, in the Tribunal’s view, constitute evidence to the requisite level as required by Zhao that he provided incorrect answers in his protection visa application (and related statutory declaration) about his feared persecution and alleged adverse profile

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

    DECISION

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

    Nicole Burns
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give 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.