1811831 (Migration)

[2021] AATA 1846

1811831 (Migration) [2021] AATA 1846 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811831

MEMBER:Sean Baker

DATE OF ORAL DECISION:  8 April 2021 at 1:45pm

DATE OF WRITTEN STATEMENT:         19 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 19 April 2021 at 1:17pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – nationality, place of birth, religion and protection claims – applicant’s wife’s and son’s humanitarian visa applications state applicant’s Iraqi place of birth and citizenship – marriage to Shiite woman and conversion to Shiism – voluntary travel to Iraq on Iraqi citizenship certificate to visit sick mother – claim to have believed himself stateless at time application made, and to have received certificate later – later admission of Iraqi citizenship through mother – state of mind when making application – discretion to cancel visa – significant mental health conditions and treatment – assimilation into community and wife’s and children’s Australian citizenship – best interests of children – country information on unstable security situation, and poor education and health services – decision under review set aside

LEGISLATION

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

Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Wan v MIMA (2001) 107 FCR 133

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his protection application and that the factors in favour of cancellation outweighed those against. 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 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

9. The applicant arrived in Australia in February 2010 and lodged a protection application on 26 February 2010. In this application he claimed he was born in [Location 1], Kuwait, was a Sunni Arab, and was stateless.

10. He claimed he and his mother were forcefully removed from Kuwait after the Iraq-Kuwait War in 1993 because they were stateless and had no identity, he lived in Iraq illegally and had no rights, he left Iraq because he received threats from Shia militants as he was a Sunni, and he feared being killed or imprisoned by the Kuwaiti authorities if returned to Kuwait as he is illegal and not welcomed, he feared harm from the Shia militants in Iraq as he is a Sunni.

11. The delegate considered the applicant provided incorrect information in his protection application about his nationality, place of birth, religion and protection claims.

12. This was because in the applicants’ wife's and sons' Global Special Humanitarian visa applications made in September 2010, the applicant’s sons were listed as Iraqi citizens, and their Iraqi national ID cards listed the applicant & his sons' place of birth as [Location 2] Iraq.

13. COI cited by the delegate indicates that Iraqi citizenship is acquired by children from their father's Iraqi citizenship. The Department also has information that indicated the applicant had links with a Shia organisation in Melbourne, and the applicant advised the Department that he married a Shia Muslim. The applicant travelled to Iraq in 2014 & 2017 for a total of approximately 3 months without harm, after he had been granted the protection visa. 

14. On 18 January 2017 the applicant was interviewed at Melbourne airport and declared he was intending to travel to Iraq for 2 months to visit his mother. It was noted that his travel document didn't contain any visas for Iraq and when questioned, the applicant said he didn't require a visa to enter Iraq and produced an Iraqi citizenship certificate. When asked when he obtained this document, he responded that he had obtained it in 2012, after he arrived in Australia. The delegate noted that when translated, the date of issue on the document is [date], the translation also states that the applicant’s place of birth is [Location 2] Iraq, instead of Kuwait as claimed.

15. Based on this information, the Department considered the applicant was an Iraqi citizen, not stateless, strongly aligned with the Shia faith, did not hold genuine fear of harm or an adverse profile, nor was he of adverse interest to Sunni militias as claimed.

16. The applicant responded to the s.107 notice. In that response he conceded that there was non-compliance but stated that it was done inadvertently. He claimed that at the time he lodged his protection visa he held Iraqi citizenship, but didn't know he was an Iraqi citizen, he couldn't recall his Iraqi citizenship at the time & believed himself to be stateless at that time. He says although he was found in possession of an Iraqi citizenship document in 2017, there is no reason to assume he was in possession of, had ever seen, or knew the contents of that document at the time of protection visa application. The applicant said he was unaware that was in fact a citizenship certificate, he assumed it was some sort of visa or document that allowed him to apply to enter Iraq which his wife brought with her to give to him when she came to Australia after he had applied for protection. The applicant claimed his wife gave him several documents she gathered from his family, with the certificate among them, and gave them to him when she arrived in late 2011, his wife didn't know the contents of the documents nor read them or inspect them when he received them from her, he only inspected them immediately before he last departed Australia to Iraq after inspecting what documents he could use in Iraq to assist him to enter Iraq to visit his ill mother.  The applicant maintains he was born in Kuwait, not Iraq, and was unaware whether he obtained Iraqi citizenship at time of birth by either grant or operation of citizenship law. RA submits it's reasonable for him to have assumed he was Stateless at birth as he never held Kuwaiti citizenship even though he was born in Kuwait. He submits the children's ID cards that listed the applicant’s place of birth as Iraq were not accurate, as the Iraqi authorities possibly deliberately created inaccurate documents showing his place of birth as Iraq for political reasons. He claimed he would still have had valid protection claims based on religious persecution aside from his claims about being Stateless. He claims his travels to Iraq were for a compelling reason as his mother was sick, although Iraq is dangerous he wasn't thinking rationally when he returned as he suffers from mental illness and he didn't consider their safety as his only concern was to see his mother, he took a calculated risk in returning but minimised the risk by not staying for overly long periods and away from high risk areas. The applicant claims his religious affiliation changed over the course of his marriage from Sunni to Shia, as such, his religious claims would not have been inaccurate at the time of his protection application.

17. To the Tribunal the applicant has provided Australian citizenship certificates for his wife and two eldest children, indicating citizenship was acquired [in] August 2018 and a letter from his treating clinical psychologist dated 19 August 2019 which states that the applicant has been diagnosed with schizophrenia/ PTSD, for which he is receiving treatment and medication.

18. At the hearing the applicant explained his early life. He said he had been born in Kuwait and was about [age] or [age] when he left Kuwait to Iraq. He fled to [Country 1] in 2009 before travelling to Australia. His family arrived in Australia in October 2011.

19. The applicant explained that he had returned to Iraq in 2014 and 2017 to visit his sick mother. In 2013 he had travelled to [Country 2] to seek treatment for his [condition]. He said that when he had travelled to Iraq he had travelled to Kurdistan and his mother had travelled there to see him. She is ill and has cancer and is receiving chemotherapy.

20. I explored the document that the applicant had provided to Department officers at the airport in 2017. I noted that this document appeared to be a citizenship certificate which meant the applicant was a citizen of Iraq. He conceded this was the case but said that he had been born in Kuwait as he had always claimed, but his mother was an Iraqi citizen and he held citizenship through his mother from birth.

21. I asked the applicant, if he had Iraqi citizenship through his mother, why he had claimed to be stateless in his protection application in 2010. The applicant said that he had been told at the time that if he said he had Iraqi citizenship he would not have gained his protection visa and would have been sent back, which he thought was intolerable. He had done this, he said, for his wife and children.

22. The applicant’s wife said that when her husband left Iraq, she and their children were left without support or food, the neighbours had to feed them. Ii had been very hard.

23. The applicant and his wife maintained that the applicant had been Sunni at birth but had married his wife, a Shia, and converted. They said that generally speaking such marriages were not common in Iraq, but they did not mind.

24. I found the applicant, and his wife, to be generally credible witnesses.

25. At the hearing they conceded more than they had previously. Whilst I have some doubts about the applicant’s place of birth and his religion at birth these matters are ultimately not material. The applicant has conceded, and I accept, that he was born an Iraqi citizen by virtue of his mother’s Iraqi citizenship.[1] The applicant has provided reasons why he declared himself to be stateless in his protection application, and this will be explored in greater detail below, but the applicant has conceded that he provided incorrect information in relation to his nationality as particularised in the s.107 notice.

    [1] Article 4, Law No. (46) of 1963 - Iraqi Nationality [], 1963, available at: [accessed 14 April 2021].

26. The delegate was of the view that the applicant was not of the adverse profile in Iraq that he claimed in his protection application. In my view, the evidence, that is, of his return to Iraq on two occasions, does not support that conclusion. The applicant has explained that he returned despite his fear because his mother was seriously unwell. The applicant has claimed that at least on one occasion he did not return to [Location 2] but travelled to Kurdistan where he met his mother. I note also that the situation in Iraq continues to evolve and that the political and sectarian situation in 2010 differed from that at the times of his return. It is also relevant that the applicant claimed to fear harm from non-state actors. For all of these reasons I find that there is insufficient evidence to establish to the requisite degree of satisfaction that the applicant provided incorrect information when he claimed to fear harm in Iraq from non-state actors.

    Conclusion on non-compliance

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

    Should the visa be cancelled?

28. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

29. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

    the correct information

30. The correct information is that the applicant was an Iraqi citizen at the time of his protection application, which he has now admitted.

31. As above, the delegate was of the view that the applicant was not of the adverse profile in Iraq that he claimed in his protection application. In my view, the evidence does not support that conclusion.

32. I give this factor significant weight towards the visa being cancelled.

    the content of the genuine document (if any)

33. I have had regard to the delegate’s decision and note the discussion of the Iraqi citizenship document. I have not weighted this however because this was simply evidence which the applicant provided which established as above, that he is an Iraqi citizen and was so at the time of his protection application. I therefore give this factor no weight.

    whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

34. As above, the applicant has conceded that at the time of his protection application he was an Iraqi citizen. The decision to grant the protection visa was based partly on acceptance of the applicant’s false claim of statelessness. The central claims made by the applicant were predicated on this information and the protection delegate relied on this information in making their assessment of the applicant’s engagement with the protection criteria. The applicant claimed that the decision would have been favourable even if he had provided the correct information, that he was an Iraqi citizen. I am not convinced by this argument. His claims revolved around his claimed stateless and how this affected his ability to live safely in Iraq without any of the protections afforded to citizens, and went to the lack of protection from Iraqi authorities. I find therefore that the decision to grant the visa to the applicant was based partly on the incorrect information and I give this significant weight towards the visa being cancelled.

    the circumstances in which the non-compliance occurred

35. I have had regard to the applicant’s evidence and that of his wife at the hearing, as well as the accompanying documents including the report from his treating psychologist.

36. I have carefully read the report of the applicant’s treating psychologist. As a registered clinical psychologist who has identified an appropriate level of training and experience in the treatment of mental health illnesses and who has seen the applicant for five sessions I place significant weight on the psychologist’s opinion.

37. This information indicates that the applicant, at the time of his protection application was most likely suffering some form of psychological illness, potentially post traumatic stress disorder. His treating psychologist notes that he has been diagnosed with schizophrenia, a very serious mental illness, since arrival in Australia but that it is not clear whether he suffered this prior to his arrival.

38. The applicant’s wife gave testimony about the difficult situation that she and their two eldest children suffered when the applicant travelled first to [Country 1] in 2009 and then on to Australia. She said that they had no food to eat and survived only because the neighbours fed them. I accept that the family was in a difficult position and that the applicant faced an invidious choice to travel and leave them there. This, I accept, would have had a significant affect upon the applicant at the time he was making his protection application.

39. His mental illness, in concert with the concerns he would had held for the situation of his family, indicate to me that the applicant would have made the decision to provide incorrect information in his protection application in an impaired state of mind. Without some assessment of his psychological health at that time it is difficult to say how impaired, but given his later diagnosis of a serious mental health condition, added to the concern about his family, I accept that this would have had a significant, probably profound, effect upon his decision to provide the incorrect information. This does not excuse the provision of incorrect information in such a significant setting as a claim for protection, but it goes some way to explaining why it occurred. I give this some weight towards the visa not being cancelled.

    the present circumstances of the visa holder

40. The circumstances of the applicant at present militate against cancellation of the visa. The applicant suffers from a significant mental illness. The evidence of the applicant, his wife and the report of his treating psychologist indicate that the applicant is unable to work and is under the care of his wife. At hearing the applicant’s wife indicated that he is compliant with his medication and is stable, but the applicant said that he has been admitted to hospital many, many times. The applicant also gave evidence that he and his family have integrated well into the community, and that their neighbours offered a significant level of support to him and his family. I give this factor some weight towards the visa not being cancelled.

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

41. The applicant has now conceded that he provided incorrect information about his claimed statelessness. As above I have some concerns about the claims of the applicant to have been born in Kuwait and to have married across sects and to have converted his faith to Shiism. I note also that the applicant only conceded that he was Iraqi from birth and at the time of his visa application, and was aware of this, only at the hearing before me and not earlier in the process. However, he has provided at least partial acknowledgement of the incorrect information. Given the lateness and potential partial disclosure, I give this factor only little weight towards the visa not being cancelled.

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

1. The applicant provided the incorrect information in relation to his statelessness in both his application for his protection and, according to the decision record, in his visa application for the Resident Return (subclass 155) visa. I give this factor a little weight towards the visa being cancelled.

   the time that has elapsed since the non-compliance

2. I have had the benefit of speaking with the applicant, his wife, and their children. The children are all Australian citizens, as is the applicant’s wife. They gave evidence of their assimilation into the community over the years that they have lived in Australia. I give this factor some weight towards the visa not being cancelled.

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

3. There are no breaches of the law by the applicant before me and I give this some little weigh in favour of the visa not being cancelled.

   any contribution made by the holder to the community.

4. No information has been provided to indicate the applicant or his family have contributed to the community and I give this factor no weight.

   Further relevant considerations

5. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   whether there would be consequential cancellations under s.140.

6. There were no consequential cancellations because of the cancellation of the applicant’s visa. I give this factor no weight.

   if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

7. The applicant and his wife have four children, aged [age], [age], [age] and [age]. The two eldest children and the applicant’s wife acquired Australian citizenship in August 2018. The two youngest children appear from the information before me to be Australian citizens by birth.

8. I am mindful that the question here directs me to the best interests of the children, not whether they would return to Iraq with their father.

9. I have had the benefit of speaking with the applicant and the applicant’s wife, as well as, briefly, with the two eldest children. The children are all in school and have friends and attachments in Australia. The two eldest, I am told, speak Arabic poorly and the two youngest do not speak much Arabic at all. Of these considerations, I place the highest value on Australian citizens being protected and provided with the greatest opportunities possible.

10. Even if it is the case that the question is not what the children might do if their parents were required to cease living in Australia, I do not see how that is not a foreseeable and necessary part of this consideration. The applicant’s wife gave evidence, which I accept, that as the applicant’s primary carer, she would return to Iraq with him. The children are all under-age and dependent upon their parents. I find as a matter of fact that they would also return to Iraq, there being no other arrangements for their welfare provided or contemplated.

11. It is clear that the children would all be entitled to Iraqi citizenship on the basis of their father’s Iraqi citizenship. It is also clear from the hearing and the information I gained form them that they have a deep connection to their father and would be severely affected if his visa were to be cancelled and he were to be removed to Iraq (which under the Act would be the consequence of his visa remaining cancelled).

12. I have had regard to the most recent DFAT Country information report.

13. The security situation is highly unstable and fluid. Security incidents occur often and without warning on targets including schools. Da’esh remains a major perpetrator of abuses and atrocities. Sectarian violence has reduced but still occurs occasionally.[2]

    [2] DFAT Country Information Report Iraq, 17 August 2020, 2.54 – 2.61.

14. Decades of conflict and under-investment has severely impaired the Iraqi education system, there is a lack of qualified teachers at all levels except pre-school, and that one in every two schools in Iraq is reportedly damaged and in need of rehabilitation.[3]

    [3] DFAT Country Information Report Iraq, 17 August 2020, 2.39 – 2.41.

15. The health of the Iraqi population has suffered from decades of conflict and economic sanctions combined with chronic underinvestment. Cases of COVID-19 have risen fast and it is likely COVID-19 will have a profound impact on Iraq’s health outcomes, economy and security environment for a number of years.[4]

    [4] DFAT Country Information Report Iraq, 17 August 2020, 2.32 – 2.36.

16. What is in a child’s best interests may in some cases be unclear. In this case it is not. The Convention on the Rights of the Child, from which the obligation to consider the best interests as a primary consideration stems, sets out the rights of children to live in peace, security with access to adequate education and health, with the preservation of family unity where at all possible. In Australia the children have access to these opportunities, and are cared for by appropriate health services and education services. They have spent much of their formative years in Australia. In Iraq they would struggle to communicate, would face an uncertain and dangerous security situation, and poor or non-existent education and health services. It is clear that their best interests are strongly to remain in Australia. But it is also significant that they are Australian citizens and should be accorded the opportunities and advantages that such citizenship bestows upon them. Their best interests, as Australian citizen children, count very significantly in my assessment of the cancellation.  I give this factor very significant weight towards the visa not being cancelled.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

17. The delegate was of the view that cancelation would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention, and that the applicant is not prevented under s46A or s48(1) of the Act from lodging a valid Protection visa application should his Resident Return visa be cancelled under s109. I therefore give this factor no weight in assessing this cancellation.

    whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

18. As above, the applicant is able to make a further application for a protection visa or certain specified other visas if his RRV remains cancelled. I therefore give this factor no weight in assessing this cancellation.

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

19. Whilst, above, I have accepted that the applicant may technically have open to him the opportunity to seek a protection or other visa if this visa remains cancelled, there are sound reasons for not proceeding with the cancellation in this case. Firstly, the applicant’s significant mental health illness which, as above, I have accepted was a factor in the non-compliance. The applicant’s diagnosed schizophrenia has globally affected all aspects of the applicant’s life, as it would be expected to. It provides strong compelling reasons for allowing the applicant’s visa to be reinstated to allow him to continue treatment and management of his significant mental illness.

20. But even more profoundly, the situation of the applicant’s children must be considered. They have been deeply affected by the cancellation and the precarious nature of their father’s remaining in Australia. As Australian citizen children their interests must be afforded a very significant weight in consideration of the cancellation. Whilst the applicant may have access to further processes to remain onshore, these are not certain and contingent on the applicant being able to satisfy the relevant criteria. This would place the children in a continued state of uncertainty about their parent’s situation and the potential for him, their mother and them to have to return to Iraq. This potential weighs very heavily in favour of the visa being reinstated to give this family certainty in their lives now, rather than the theoretical certainty that may be achieved later if the applicant were to be recognised as being owed protection or granted a visa on another basis. Ultimately the best interests of the children and the principle of family unity have been a primary consideration in this case but further have been, in this case, determinative.

21. Having weighed the factors for and against cancellation I find that the factors in favour of the visa not being cancelled weigh more heavily than those in favour of cancellation.

    Conclusions

22. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Sean Baker
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.