1822836 (Refugee)

[2019] AATA 6174

1822836 (Refugee) [2019] AATA 6174 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822836

COUNTRY OF REFERENCE:                   Other

MEMBER:Michael Hawkins

DATE:27 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 866 (Protection) visas.

Statement made on 27 August 2019 at 5:33pm

CATCHWORDS
REFUGEE – protection visa – cancellation – stateless – identity – citizenship – stateless Faili Kurd or Iranian citizen – fraudulent activity of Iranian citizen mother – father’s Iranian citizenship – applicant’s social media account under real name – discretion to cancel visa – extended family in Australia– children’s education and life in Australia – no family support in Iran – no knowledge of husband’s present whereabouts – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 425, 438, 424AA
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 had provided incorrect answers in her visa application form in contravention of the requirements 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 18 July 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 Tribunal noted that the applicant had requested a Kurdish Interpreter, but confirmed with the applicant, and her Representative, that she was satisfied with the Persian Interpreter who was present. It was agreed that the Representative would advise the Tribunal if the applicant was not understanding the Interpreter or if he believed an interpretation was not accurate. The parties agreed to proceed on this basis.

5. The applicant was represented in relation to the review by her Representative, a registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

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.

   Background:

10. The visa holder arrived in Australia as an Illegal Maritime Arrival (IMA) [in] November 2011 and indicated that she wished to apply for Protection.

11. On 4 November 2011 a Protection Obligations Determination was commenced and on 11 December 2011 the visa holder provided the following statement of claims:

    ‘I was born in Khaniqin Iraq on [date].

    I am married with 1 daughter and 1 son. My children are here in Australia with me.

    My husband is in jail in Iran.

    I am a stateless Faili Kurd.

    My religion is Ahl-I-Haqq (Iran).

    I have never attended formal education and I have never worked.

    The reasons I left:

    I am stateless. I am discriminated against with everything. We have been persecuted. We have never had any documents. If we had had documents our lives would have been different.

    If you look at other countries they eventually gain citizenship. We have lived in Iran for so long and still no citizenship. We never had the right to education, never had to right to purchase property.

    My children never went to school. I gave them lessons at home.

    We are poor people. We tried to avoid trouble, avoid the government. We are fearful of the government because we are stateless.

    I am Al-l-Haaq. The Iranian Government does not accept this religion. I have to hide my religion all the time. This is not a proper thing to do, I cannot express myself freely. If it is discovered that a person of this religion they can be arrested. This is why my husband, brother in law and nephews are in jail.           

    We do not have freedom of religion in Iran. If you convert to Christianity you will be killed, if you are found to be Ahl-l-Haaq you will be arrested.

    When the last Iranian elections were occurring the Mousavi, the opposition leader was promising to fix all of these problems. Some of our family decided we would like to support Mousavi. My husband, my brother in law attended a demonstration in 2009 in Kermansah. I did not attend because in our culture and religion women are not permitted to attend demonstration or religious meetings.

    At this demonstration the Basij arrested my husband and brother in law. They were detained for 3 days and they were beaten. The signed a consent form to say they were not going to participate in any more demonstrations or other gatherings.

    Since then the Basij were checking up on us watching us.

    Then [in] September 2011 my husband was at a one of our religious gatherings, the Basij and Sepah raided the meeting. 20-25 people were arrested; among them were my husband, my brother-in-law and my 2 nephews. My niece's husband, [Mr A] got away. Because he high up, an elder in our religion others helped him to get away.

    [Mr A] came to our house, we all lived together, he told us we had to leave. The next day early in the morning we all left. [Mr A] took us to his boss's place. It was like a farm or garden. We all stayed in a house therefor about 30 days.

    At the beginning we did not know how long we were going to stay there. After a couple of days a friend of [Mr A]'s came and told us that the Basij had been to the house and taken our things, our documents. We knew now that they were looking for us and that we could not return home.

    [Mr A] approached the family about leaving Iran for Australia. I did not want to go and leave my husband in jail but felt that I had no choice. I knew they, the Basij, were searching for myself and my family. I know that the Basij had my husband, they can capture me and my children and torture us as a way to get to my husband. After the last time my husband was captured we had a discussion and he told me that if he was ever captured again that I should get away to safety with the children. He said that he was not going to lie about his religion, he was tired of lying about who he was, so he is in serious trouble now. I know he is in serious trouble now.

    It is not easy to live in Iran when you are stateless, my children were asking me, why do we not have any nationality, so I decided to come with [Mr A] and the rest of my family. [Mr A] made all of the arrangements.

    I had some gold jewelry and I sold it to get the money to come. I never saw the passport and we had no trouble leaving the airport.

    What I fear may happen to me if I return:

    My husband is in jail. I would be in jail right now if I had not have left. If I go back I will go right to jail.

    I have been persecuted because I am a Faili Kurd and Ahl-l-Haaq and if I go back I will be arrested and tortured. I have had to hide my religion, which is emotional persecution. Now that my husband is in jail the authorities will know for sure we are Ahl-l-Haaq it will be worse.

    I am fearful to return back because I know my life will be in danger. If the authorities find out I have left the country it will be worse for my husband.

    There is no chance for me to live there.

    My children will be treated the same as me. My children are not Iranian, the government does not accept them.

    Who might harm me if I return:

    The government. The Basij and Sepah.

    Why I think that might happen to me if I return:

    I am fearful to return back because I know my life will be in danger, my husband is injail. I heard that when he and my brother in law and nephews were arrested they were beaten badly. If the authorities find out I have left the country it will be worse for my husband.

    I know they are looking for me and my family because they have been to our house. There is no chance for me to live there.

    My children will be treated the same as me. My children are not Iranian, the government does not accept them.

    Do I think the authorities can protect me if I return?

    No way.

    Can I go anywhere else in my country, apart from where I used to reside?

    No.'

12. On 2 May 2012 the visa holder lodged an application for a Class XA Subclass 866 Protection visa. As part of this application the visa holder completed the Form 866C “Application for a Protection (Class XA) visa.” In this form, the visa holder provided the following information:

    In response to question 20 which asks “Your citizenship at birth” the visa holder stated “Stateless Iran”

    In response to question 21 which asks “Current Citizenship (if different to at birth)” the visa holder did not provide a response.

    In response to question 22 which asks “Do you hold any other citizenship or are you a national of any other country?” the visa holder checked the box “No”

    In response to question 42 which asks “I am seeking protection in Australia so that I do not have to go back to”: the visa holder stated “Please refer to my statement of claims” referring to the above mentioned claims.

    In response to question 43 which asks “Why did you leave that country?” the visa holder stated “Please refer to attached statement of claims” referring to the above mentioned claims.

    In response to question 44 which asks “Have you experienced harm in that country” the visa holder stated “Yes, please refer to attached statement of claim” referring to the above mentioned claims.

    In response to question 45 which asks “What do you fear may happen to you if you go back to that country?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.

    In response to question 46 which asks “Who do you think may harm/mistreat you if you go back?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.

    In response to question 47 which asks “Why do you think this will happen to you if you go back?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.

    In response to question 48 which asks “Why do you think this will happen to you if you go back?” the visa holder stated “Please refer to attached statement of claim” referring to the above mentioned claims.

13. In an attachment to this form the visa holder declared the following family members:

    [Information deleted]

14. On the basis of this information and meeting all other requirements on 8 May 2012 the visa holder, and her two children, [Child 1] and [Child 2], were granted Class XA Subclass 866 Protection visas.

15. Subsequent to the grant of the Protection visa, information has been made available to the Department which indicates that the visa holder’s mother had previously travelled to Australia under another identity. The Department has determined based on this information that the visa holder’s mother has also been known as Ms [B], an Iranian citizen, born [date]. This is based on a facial image comparison examination using photographs the Department holds of the visa holder’s mother and Ms [B]. This examination was completed by a facial image comparison specialist.

16. According to Departmental records Ms [B] first arrived in Australia [in] March 2003 as the holder of a [temporary 1] Visa and declared herself to be an Iranian citizen.

17. On 20 August 2003 Ms [B] lodged an application for a Class XA Subclass 866 Protection visa.

18. [In] February 2004 Ms [B] departed Australia.

19. On 25 March 2004 the Department refused the Protection visa application.

20. On 3 September 2009 Ms [B] lodged an application for a [temporary 2] visa. This application was sponsored by her daughter [Ms C]. As part of this application a scanned copy of the applicant’s Iranian passport was provided. This passport contained the following details:

    [Information deleted]

    21.      A translated copy of an Identity (ID) card was also provided. This card contained the following details:

    [Information deleted]

21. It is noted that the details for [Name 1] and [another name] are very close to the details of the visa holder and the visa holder’s sister that the visa holder’s mother declared as part of her 866 application.

22. [In] April 2011 Ms [B] again travelled to Australia as the holder of a [temporary 2] Visa. Ms [B] then departed Australia [in] July 2011.

23. It was noted that the ID card contained an authentication stamp from the Ministry of Foreign Affairs of the Islamic Republic of Iran. It was also noted that the ID card contained ID numbers for each of [Ms B] and [Mr C] which indicates that both are recognised as Iranian citizens.

24. It was further noted that the name “[Name 1]” is very similar to the applicant’s name and the two parties shared the same date of birth.

25. In a hearing of the Tribunal immediately prior to this hearing, [Ms D], who it is claimed is the applicant’s mother, agreed that she was one and the same person as Mrs [B].

26. The Tribunal went on to find that [Ms D] was in fact Mrs [B] and was an Iranian citizen.

27. Under the Iranian Nationality Law, Iranian citizenship is derived through paternal descent. A child born to a male Iranian citizen is automatically considered to be an Iranian citizen.[1]

    [1] Iran: Discrimination Through Citizenship, Nikou, SN, Human Rights Brief - Centre for Human Rights and Humanitarian Law, 13 January 2015.

28. Given that the visa holder’s mother has been identified as [Ms B], and together with the similarities in the applicant’s name and date of birth to the information on her mother’s ID, the Department formed the view that the visa holder’s correct identity is [Name 1] [Surname 1] born [date], daughter of Iranian citizens [Ms B] and [Mr C] and that by operation of Iranian Nationality Law, the visa holder is an Iranian citizen.

    Notice of Intention to Consider Cancellation

29. A Notice of Intention to Consider Cancellation (NOICC) was issued on 5 April 2018.

30. The applicant responded to the NOICC on 30 April 2018.

31. The visa holder appears to have not agreed that there was non-compliance.

32. In her response provided to the Department, the visa-holder provided the following information:

    'The recent events are threatening everything that our family has worked for the past seven years and has once again brought forth the nightmare of our past difficulties. It has made me think of all the hopelessness, defeat, fear, insecurity, stress, unjustness and the violence that we had to suffer through. It was in that situation that I was forced to make the hardest decision of my life, being endangering the lives of my children who were the only ones that I had left. This was because resisting and fighting had proved to be fruitless and we had no choice but to run away from it all. This was not in the hopes of a better life but for the survival of my children. I knew all the risks involved but there was no other option and this was very painful. My children weren't old enough to understand the weight of the situation so I had to make the decision for them. As a mother, this was the hardest decision that I had ever had to make. In the other hand, I had no idea of what life in Australia may hold for us. However, due to our unbearable and unsafe situation, I had to choose the least dangerous route which was coming to Australia.

    Since arriving in Australia, I have never been able to remove the thoughts of what could have happened to my children, me, my family or any one of the families who had travelled with us.'

33. The visa holder has provided a statement from [Child 1] which states the following (in part):

    'We arrived in Australia in 2011. At the time I was [age] years old and 1 didn't completely understand the reasons behind our journey or what it may hold for us. I didn't have a clear idea about the way of life in Australia. The only thing that kept me hopeful was that nothing could be worse than what I had already experienced.

    I remember thinking to myself in the boat, that even if I drowned in the ocean, it would be a relief I was at the beginning of my life but I had no hope, no goal and no desire to continue living. Therefore, we gambled with our lives.

    Fortunately, we were rewarded with the hospitality of the Australian people who enabled us to live among them not as outsiders but as their own in this free country.

    'Within a month in the detention centre, I learned to read, write and speak English. I even received [an award] which I still keep on my desk. I couldn't stop talking to people as it was so refreshing to be able to express myself without the fear of prosecution. After receiving my permanent residency, I quickly finished my secondary education having no previous education in Australia and started my tertiary studies in [year].'

34. The visa holder's [Child 2] has provided a statement which states (in part):

    'My mother was always frustrated with herself as she wanted me and my brother to be the best versions of ourselves but, that was never possible with the restraints and limitation that we were under. She wanted us to have hopes and aspirations that she could never have, but my mother knew that was not realistic. She left everything that she ever had in the [age] years for the safety of her children.'

35. The visa holder also provided the following information:

    ·After living in Iran for many years it was strange to be introduced to the Australian culture.

    ·She had never been valued or respected as a woman. It was eye-opening and heart-warming and she instantly fell in love with the Australian people's way of life and the culture.

    ·In spite of the support of the Australian people, she has never been able to overcome the fears of her past in Iran and this has resulted in her being depressed.

    ·With medical attention she has been able to manage her depression, however, since receiving the Notice she has not been able to focus on anything other than what may happen to her family if they return to Iran.

    ·After seven years of residing in Australia, the visa holder feels part of the land and feels attached to friends and family.

    ·Living in Australia has given the visa holder confidence as she is able to work and provide for her family.

    ·She has become a proud mother from watching her children be successful in their education and social life and because they are also respected and treated equally and have become young adults with values and morals. It would be devastating for them to lose everything they have worked hard to achieve.

    ·Since the family received the letter all the laughter, joy and happiness left their house.

    ·Her family have built their life in Australia with respect to the law and the people of Australia. They owe everything to the generosity and humanitarian actions of the Australian Government.

1. The visa holder's [Child 1] has provided the following information:

   ·Australia has given him hope and he has dared to dream about his future. He is studying [subject] at [University 1] while maintaining a high distinction mark. He is hoping to receive a PhD in the next few years and conduct research in [a topic]. He has been recognised as the highest achieving student in many of his subjects. He has represented his University in [a] university-wide competition and has been invited to join [an international] Society due to his academic excellence.      

   ·While in Australia he has tried his best to become someone who can serve the Australian community to the fullest extent of his ability.       

   ·He has grown to love many people in Australia and he has learned and experienced the Australian culture which has become his culture.

   ·He has been in a relationship with his girlfriend for four years and they were planning their wedding prior to the receipt of the Notice. His [girlfriend] holds a permanent humanitarian visa and pushes him to be his best self.

   ·If his visa is cancelled he will never be able to see his girlfriend again and this breaks his heart.

   ·He has never committed any crime or done anything to jeopardise the security of the Australian people.

   ·He has lived a large portion of his life in Australia and deportation would result in the destruction of everything his family has worked for.

2. The visa holder's [Child 2] has provided the following information:

   ·She has become fascinated with the Australian people as they live in a world of ambition, freedom and diversity.

   ·Since having sought refuge in Australia she has been occupied in embracing her full potential and contributing to the community.

   ·After her initial arrival in Australia she struggled with her "literature skills" as she had not previously been exposed to English in Iran. She felt driven to improve her English language skills and by the end of 2017 she received a medal for outstanding English performance as an ESL (English as a Second Language) learner. She received this award due to the opportunities Australia provided and the example her mother set.

   ·She has adapted to the Australian lifestyle and she felt safe and respected from the beginning. She found a group of friends that appreciated her contribution and ideas and assisted her with her English and socialisation skills. In doing so she went from a shy depressed girl to a joyful adult.

   ·The receipt of the Notice has made her feel overwhelmed and trapped in a place she is not welcomed.

   ·She has seen the devastation in her mother's eyes and the Notice has demolished all the joy her mother has experienced since arriving in Australia.

   ·She and her brother want to become one of many bright minds in the country to help shape the future of Australia.

3. The following documents have been provided with the response:

   ·A letter from [an international] Society, [University 2] Chapter addressed to [Child 1] dated [April] 2018. This letter states that [Child 1] is eligible to join the society given his outstanding academic achievement.

   ·A letter from [University 2] addressed to [Child 1] dated [April] 2018 advising that [Child 1] qualifies for membership of [an international] Society due to his excellent academic performance.

   ·An image of an award from [deleted].

   ·A Subject Award for English for ESL learners presented to [Child 2] from [a] Community College in 2017.

   ·An image of a college medal from [a] Community College.

   ·An email from [University 2] advising a giveaway for three textbooks to the highest achieving students in the unit [code].

   ·An email to [Child 1] from [University 2] dated [July] 2016 advising he has won a book for being top of class [code].

   ·An email from [University 2] to [Child 1] dated [July] 2016 advising he has been awarded a 2015/16 [University 2] Award for Academic Excellence for his studies in [Qualification].

   ·An email from [named person], [Position, University 2 Faculty] to [Child 1] dated [August] 2016 congratulating him on his achievements and advising him he has been nominated to represent [University 2 Faculty] in [a] Competition.

   ·Numerous submissions of university results received post-hearing from the representative.

   Delegate’s Decision

4. The visa holder has provided incorrect information with her application for a Class XA Subclass 866 Protection visa. The visa holder claimed as part of her application that she was stateless and that she did not have the legal right to reside in Iran. The visa holder claimed that the Iranian authorities discriminated against her on this basis and could not provide her with Protection.

5. Following the grant of her Protection visa, the Department has determined that the visa holder’s mother has previously travelled to Australia under another identity, that of [Ms B], an Iranian citizen. The visa holder’s mother previously provided the Department with evidence of her citizenship and information that the visa holder’s father was [Mr C], an Iranian citizen. As Iranian citizenship is derived through paternal descent, this indicates that the visa holder is also an Iranian citizen and not stateless as claimed in her Protection visa application.

6. The Protection visa was granted on the basis that the visa holder satisfied the Minister that she engaged Australia’s protection obligations under the Refugees Convention. The visa holder claimed that she is stateless and that she fears harm from the Iranian authorities. The visa holder claimed because of these fears, she could not return to Iran. These claims were fundamental to the determination that the visa holder is a person to whom Australia has protection obligations. The incorrect information the visa holder provided was material to this determination, and it now appears that the visa holder is an Iranian citizen and was so at the time of her Protection visa application and not stateless as she has claimed. The visa holder therefore may not have engaged Australia’s protection obligations.

7. The delegate therefore considered that the visa holder has not complied with s.101(b) of the Act because she has provided incorrect information on her application for a Class XA Subclass 866 Protection visa. Specifically, the delegate considered that the visa holder has provided incorrect information in response to questions 22, 43,45,46 and 47 as follows:

   ·At question 22 the visa holder declared that she did not hold citizenship of any other country. This is incorrect as the visa holder is an Iranian citizen as evidenced by the Iranian ID Card provided by her mother.

   ·At question 43 the visa holder stated that she left Iran because she feared persecution from the Iranian authorities as a stateless person and as a person of the Ahl-l-Haaq faith. This information is incorrect as the visa holder is an Iranian citizen as evidenced by the Iranian ID Card provided by her mother.

   ·At question 45 the visa holder stated that she feared she would be harmed if she returned to Iran because she fears persecution from the Iranian Government as a stateless person and as a person of the Ahl-l-Haaq faith. This information is incorrect as the visa holder is an Iranian citizen as evidenced by the Iranian ID Card provided by her mother.

   ·At question 46 the visa holder stated that the Iranian authorities would harm her as she is stateless and as a person of the Ahl-l-Haaq faith. This information is incorrect as the visa holder is an Iranian citizen as evidenced by the Iranian ID Card provided by her mother.

   ·At question 47 the visa holder stated that the Iranian authorities would harm her as she is stateless and as a person of the Ahl-l-Haaq faith. This information is incorrect as the visa holder is an Iranian citizen as evidenced by the Iranian ID Card provided by her mother.

   As the visa holder has provided incorrect information in her application for a Class XA Subclass 866 Protection visa, the delegate determined that the visa is liable for cancellation, and was cancelled on 10 July 2018.

   Review Hearing

8. At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department to cancel her Protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in her application for protection. As a result of this the applicant was served with a NOICC of her visa and given an opportunity to comment on those grounds.

9. The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Act, referring amongst other things to the answers the applicant had provided in her application for a Protection visa regarding her Protection visa claims. The Tribunal noted that based on all of the evidence before her the delegate proceeded to find that the applicant had provided incorrect information in her protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.

10. The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in her protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the s.107 NOICC, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.

11. The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on
    8 May 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and her representative that the Tribunal might take the applicant's claims for protection provided to the Department as having been read. The applicant and representative agreed.

12. The Tribunal reminded the applicant that the Delegate had found that her mother had previously travelled to Australia under another identity. That other identity was Ms [B] who was an Iranian citizen born [date] and who was married to [Mr C], an Iranian citizen.

13. The Representative indicated that he was satisfied that the applicant understood the NOICC, the reply, and the decision of the Delegate.

14. The Tribunal reminded the applicant that this Tribunal had considered a review of the Delegate’s decision in relation to the cancellation of her mother’s visa immediately prior to this hearing. It advised that pending the findings of this Tribunal, those findings may have implications for the applicant.

15. The Tribunal advised the applicant that her mother had accepted that there was non-compliance by her in the way described in the Notice she had received.

16. The Tribunal enquired of the applicant whether she also accepted that there was non-compliance in the way described in the Notice issued to her. The Tribunal noted that it wasn’t entirely clear from her response to the Notice whether she agreed that there was non-compliance. The applicant replied that she does not accept that there was non-compliance by her.

    Section 438 Certificate

17. A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at Folios 1 to 31, 120 to 126 and 153 to 158 contain documents or information that relate to departmental investigative procedures and the disclosure of these documents may impede further investigations. Further, these documents contained information relating to third parties, the disclosure of which would be a breach of privacy.

18. A copy of the Certificate was provided to the applicant at the hearing and to the applicant’s Representative.

19. The Tribunal has considered the material identified in the Certificate and considers the Certificate is valid.

20. The Tribunal spent considerable time explaining to the applicant and the Representative what the contents of the folios were. It explained that many pages related to a facial image comparison report of the applicant’s mother which considered photos of the applicant’s mother at various times of entry into the country. The Tribunal is satisfied that disclosure of those documents would telegraph the Australian Government’s investigative processes.

21. Other documents contained within the folios relate to an anonymous report provided to the Department containing significant adverse interest about the applicant and her family. The Tribunal, whilst discussing the contents, confirmed that it was unable to disclose the documents themselves as disclosure may identify a third party who has made a report to the Department on the condition of anonymity. Notwithstanding, the Tribunal did discuss with the applicant the adverse information during the hearing pursuant to s.424AA of the Act.

22. The Tribunal asked the applicant whether she had any comment to make in relation to the s.438 Notice. The representative advised that it was satisfactory.

23. The Tribunal explained to the applicant that it would like to understand a little of her background. It asked the applicant why she had left Iran. The applicant replied that she could speak on behalf of all Faili Kurds about the struggles they have had. She said that when they were evicted from Iran to Iraq, she stated that they could only survive as they had no rights. She explained that she was fortunate that she had religious faith, that it is a belief and that she can’t change direction. She also added that where she lived, 80 per cent of the population practiced the same faith, but she said their religion had to be practiced in hiding.

24. The Tribunal asked the applicant about their living conditions in Iraq. The applicant confirmed that the whole family lived together in one house.

25. The Tribunal noted that the applicant’s mother had travelled to Australia in 2003. It asked the applicant where she thought her mother was during that time. The applicant replied that at that time, she thought she had gone to visit her sister in Iraq.

26. The Tribunal asked the applicant about her education. The applicant replied that her education was nothing formal, it was only through her sister. She explained that neither she nor her sister were allowed to go to school and that her sister picked up knowledge from their neighbour and passed it on to her.

27. The Tribunal asked the applicant about her father. The applicant said that her [father] died in 2003.

28. The Tribunal asked the applicant about her husband. She replied that her husband was in prison in 2011 when she left Iran. The Tribunal asked the applicant where her husband was presently. She said she didn’t know where he was and she couldn’t say whether he was even out of prison. She stated that both of his parents have died and that her husband was an only child. She says she has been in contact with a friend of his, but even the friend doesn’t know where her husband is. She said she has had no contact with him since leaving Iran. She went on to explain that it has been incredibly difficult not hearing from him and that she is still under medical supervision dealing with the stress of it.

29. The Tribunal explained to the applicant that it was going to discuss some of the adverse information that had been received pursuant to an anonymous letter sent to the Department which it had discussed with the applicant at the commencement of the hearing.

30. The Tribunal explained that under s.424AA, the Tribunal would put that adverse information to her and, subject to her response, may form the view that her claims are not genuine and thereby have to affirm the decision of the Delegate.

31. The Tribunal asked the applicant whether she had been to university in Iran and also worked as [an Occupation 1]. The applicant replied that that was an empty allegation and asked why she would be working as [an Occupation 2] if she was a qualified [Occupation 1]. She also stated that if she had that type of qualification, she would have migrated with her other family members. As it was, she had to choose this job to assist with her healing.

32. Still under s.424AA, the Tribunal asked the applicant about her [Social media] account, noting that the applicant used as her [Social media] identity “[Name 1] [Surname 1]”, which is the surname of her mother’s husband, [Mr C].

33. The applicant replied that she uses that name for the safety of herself and her children. She explained that she didn’t want to risk exposure, as “[Given name on application]” is the name she escaped from Iran using. She said that [Name 1] is a fake name and that everyone knowns her as [Given name on application].

34. The Tribunal explained that [Social media] is a means by which people can remain in contact with each other and, indeed, find each other. Consequently, on that basis, why would the applicant use the name of [Surname 1] which is, in fact, the name identified on the ID card of Mrs [B] and the surname of her husband, [Mr C]. The applicant replied that she doesn’t know much about [Social media]. She thought it would lead to some sort of damage and that she was taking measures in case they were sent back.

35. The Tribunal expressed its concern that her explanations made no sense at all given the tool that [Social media] is, being a means by which people can connect. The applicant replied that she made the decision to use that name because of concerns she had about the Iranian Government. The Tribunal suggested she used that name as it is actually her real name. The applicant replied that her name is [Given name on application].

36. The Tribunal asked the applicant about the claimed raid on the family home by the Basij. The Tribunal enquired as to why the Basij would raid their home. The applicant replied that she was not at home when their home was raided. She went on to add that the raid happened on the night after her husband and her brother-in-law told them that this would happen.

37. The Tribunal took evidence from the applicant’s [Child 1].

38. [Child 1] explained that he looks after [certain chores] in the family home. He discussed how there was much gossip whilst they were in detention about the risks to them if ever they were returned.

39. The Tribunal asked [Child 1] about his mother’s [Social media] account. He confirmed that he did set it up for his mother, but did so as directed by his mother. He said the account was set up after they got out of detention.

40. The Tribunal again explained its concerns to [Child 1] about why his mother would set up a [Social media] account using what appeared to be her real name as identified in the ID documents of her mother. He explained that she was worried about using her own name and was still worried even after getting a Protection visa.

41. The Tribunal also discussed with [Child 1] the concerns of the Delegate relating to how quickly he had learned English, graduated high school and achieved exemplary results at university. The Tribunal noted the Delegate’s concerns that such performance was likely as a consequence of him having received a comprehensive education in Iran.

42. [Child 1] maintained that he did not attend school in Iran and was largely self-taught from the internet. He maintained that he did learn English in one month, but it was very elementary.

43. As for his secondary education, he said after getting out of detention, he attempted to enter Year [grade] but after one month pulled out. The following year he attempted to start Year [grade] again, only to find that he could still not cope with the broad curriculum and after a month he again pulled out. The following year, he said he tried his luck at TAFE for six months. He claimed to have a thirst for knowledge and was able to obtain sufficient qualifications from TAFE to attend [University 2] the following year. He did [a] course at [University 2]. Midway through the course, he stated that he changed to [University 1].

1. The witness proudly discussed his many achievements and awards that he has since received. These were supported by the post-hearing submissions of the representative which contained many statements of results and certificates.

2. He also discussed having a girlfriend and whilst they had talked of marriage, that had been put on hold since receiving notice of the cancellation of the family’s visas.

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

3. 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).

   Conclusion on non-compliance

4. The Tribunal has taken into account the Tribunal’s Guidelines on the Assessment of Credibility (including the effects of anxiety on applicants), but these materials and matters do not overcome the fundamental concerns the Tribunal has with the applicant’s credibility as set out below. The Tribunal notes that the applicant was able to freely answer questions at the hearing and participate in the review process and the Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.

5. The Tribunal is satisfied on the basis of the applicant’s apparent attempts to not respond to the specific issues put to her in the NOICC in relation to the determination by the Department about her mother’s identity, that the applicant’s version of events that she has outlined in her response to the NOICC is evasive and not credible.

6. The Tribunal is satisfied that the applicant is not stateless, but rather is an Iranian citizen and was so at the times she applied for a Protection visa and was granted a Protection visa.

7. The applicant was advised and agreed with the Tribunal, and was aware, that her mother had previously travelled to Australia under another identity. That other identity was

   
   

   Mrs [B] who was an Iranian citizen born [date].

8. The applicant was advised that her mother, Mrs [D] and Mrs [B], are one and the same person.

9. The Tribunal has previously found that the applicant’s mother is Mrs [B] . Based on the documents presented by Mrs [B], the Tribunal had no doubt that Mrs [B] was married to [Mr C], also an Iranian citizen. The ID card used by the applicant’s mother declared that

   
   

   Mrs [B] and [Mr C] have a daughter named [Name 1] born [date].

10. Accordingly, this Tribunal is satisfied that the applicant is [Name 1] [Surname 1], born

    
    

    [date], of Mrs [B] and Mr [C], both Iranian citizens.

11. Further, as Iranian citizenship is derived through paternal descent, the Tribunal is satisfied that the applicant is also an Iranian citizen and not stateless as claimed in her Protection visa application.

12. The Tribunal’s findings are supported by the applicant’s own use of a [Social media] account in the name of [Name 1] [Surname 1]. The Tribunal was not at all persuaded by the explanations provided by the applicant and her son as to the use of that name whilst using [Social media]. The applicant’s explanations were so implausible and so illogical as to be far-fetched.

13. The Tribunal also notes that the two children of the applicant have not made protection claims of their own and accordingly were granted Protection visas on the basis of being members of the same family unit.

14. Whilst the Tribunal has noted that the applicant has not included her two children as parties to the review process, the Tribunal noted, and advised the applicant, that the children were a part of the delegate’s decision record which was submitted with the application for review. The Tribunal has also formed the view, having considered the context of submissions received before the hearing and post-hearing, that the children were to be included in the application for review. The Tribunal invited the applicant and the representative to comment. The Tribunal notes that neither the applicant nor the representative responded directly to the invitation to comment. The Tribunal accordingly finds there has been substantial compliance with the requirements to lodge a valid application for the dependent children.

15. 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?

16. 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).

17. 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. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

    ·     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;

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

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

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

    ·     the time that has elapsed since the non-compliance;

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

    ·     any contribution made by the holder to the community.

18. 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.

    The correct information

19. The applicant claimed in her Protection visa application that she feared persecution by the Iranian Government if she returned to Iran because she was a Faili Kurd and because of her religion Ahli-L-Haqq.

20. The correct information is that the applicant is an Iranian citizen and as has been evidenced by documents provided to the Department by her mother, Mrs [B], which are documents that would only be issued to citizens of Iran and which were notarised and contained an authentication stamp from the Ministry of Foreign Affairs of the Islamic Republic of Iran.

    The content of the genuine document (if any)

100.   The prescribed circumstance is not relevant in the present case.

Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.

101.   The decision to grant the applicant her Protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.

102.   As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that she had been given incorrect answers about her claims in her application for the visa.

The circumstances in which the non-compliance occurred

103.   The applicant arrived in Australia as an Illegal Maritime Arrival (IMA) [in] November 2011 and indicated that she wished to apply for Protection. On 4 November 2011 a Protection Obligations Determination was commenced and on 11 December 2011 the visa holder claimed she was born in Khaniqin Iraq on [date], was married with one daughter and one son, who are both with her here in Australia with me. She claimed her husband is in jail in Iran. She claimed to have never attended formal education and to have never worked, claiming she was a stateless Faili Kurd and her religion is Ahl-I-Haqq.

The present circumstances of the applicant

104.   The Tribunal is grateful to the applicant’s Representative for providing a very detailed submission post-hearing.

105.   The Representative states that the applicant and her children have gone through lots of challenges that an average refugee goes through but, in addition, the applicant has come to Australia as a single mother with two young children who also had difficulties in adapting to the new lifestyle in Australia. The Representative states that they came to Australia with nothing but the clothes on their backs and have had to survive on the government’s generous support and to learn English, work, study and survive, none of which was easy.

106.   The Representative submits that for the two children coming from a very different background, with no formal education and no ability to speak English, the children have performed remarkably and have made extraordinary efforts to become who they now are.

107.   The Representative implores the Tribunal to give no weight to the anonymous report submitted to the government. The Representative submits that the family is highly suspicious that such report was made by a relative whose relationship with the applicant’s brother has ceased and that the relative has started to do anything that it takes to harm the ex-husband and his family.

108.   The Representative implores the Tribunal to consider that the applicant is not aware of where her husband presently is. The Representative notes that the applicant claims that he was imprisoned in Iran due to his religious beliefs and is not aware if her husband is even alive. Accordingly, the Representative submits that the applicant will be very vulnerable as a single mother and single woman in Iran and will be vulnerable to hardship for not having any male in her family to provide support. The Representative submits that women are very vulnerable in Iran and are considered as second-class citizens. He states that in a male-dominated country like Iran, women without husbands are more vulnerable and are subject to a range of discrimination, degradation and harassment. He maintains that the Iranian Government is an actor in such discrimination, degradation and harassment.

109.   The Representative submits that as the applicant has never worked in Iran it would be impossible for her to find employment and to fund her own medical expenses.

110.   The Representative also notes that if the applicant and her two children were returned to Iran, then her son, if he was able to obtain Iranian identification, would then be required to complete conscripted military service to which the son has strong objection. The Representative further submits that the son will be subject to harassment and hardship within the military on the basis of his minority religion.

111.   It is also submitted that if the applicant and her children are returned to Iran, the children will be obliged to study Islamic lessons and maintains that at least 50 per cent of their curriculum are designed based on Islamic teachings. As the children have studied in Australia since 2011 and have never participated in Islamic teachings, it is submitted that they will suffer hardship by reason of their ignorance of such teachings.

112.   The Representative spoke to the outstanding achievements of the applicant’s son which they credit as being opportunities available only to him in Australia and which he would not be entitled to if he was to return to Iran. The Representative notes particularly a Grade Point Average of [score] out of 7 during his studies in [Subject] at [University 1]. The applicant’s son has achieved a High Distinction mark in [number] of his 18 enrolled units, having received Distinctions in the other three subjects.

113.   The Representative also submits that the applicant’s two children, who never made their own protection claims when they came to Australia, and who were given Protection visas as the dependent children of their mother, have now developed their own personalities as a result of living in Australia and under a liberal and democratic rule. Accordingly, they have developed a critical ideology against the Islamic Government of Iran and as a result of accessing the unfiltered media in Australia, they have learned a lot about the political corruption in Iran and developed a grave hatred towards such an infected government.

114.   In relation to the children, the Representative further adds that they have learned to freely reflect their political and religious views amongst their friends and relatives and in the public through their social media network. He states that their social media accounts have been public and which may have been accessed by the Iranian Government which often checks the social media of Iranian people living abroad.

115.   The Tribunal notes that the applicant has [number] siblings living in Australia. It notes that she has [number] nieces and nephews and [number] great-nieces and nephews all living in Australia.

116.   The Tribunal notes that the applicant has only one sister still living in Iran. It notes from the submission that that sister has recently been diagnosed with terminal cancer which is at an advanced stage. The Tribunal notes from the submission that that sister is in the process of seeking migration to [Country] to join her own daughter there.

117.   The Tribunal notes the Representative’s submission that the applicant will have no family support in Iran. He also notes that as the applicant has never worked in Iran, she will not be entitled to any pension payment.

118.   The Representative has also asked the Tribunal to consider decisions by the Tribunal (differently constituted) in South Australia wherein the Tribunal has already accepted the statelessness claim of the applicant’s sister and her children.[2]

[2] AAT Case 1728588.

119.   The Representative has also asked the Tribunal to consider the Tribunal Decision (differently constituted) relating to the applicant’s niece, again in South Australia, which also accepted the statelessness claim of the applicant’s niece.[3]

[3] AAT Case 1730857.

120.   The Representative further invites the Tribunal to consider the decisions of the Tribunal (differently constituted) in matters dealing with the applicant’s nieces and nephews, all of whose visa cancellations were set aside.[4] 

The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act

[4] AAT Case 1729154.

121.   The Tribunal has noted that the applicant did respond to the Notice in accordance with her obligations under Sub-Division (c) of Division 3 of Part 2 of the Act. However, the Tribunal is not satisfied that the applicant has directly addressed whether she agrees there was non-compliance or addressed the grounds of the alleged non-compliance. 

Any other instances of non-compliance by the applicant known to the Minister

122.   The applicant advised that there had been no breaches of her visa terms.

123.   On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.

The time that has elapsed since the non-compliance

124.   The Tribunal notes that her visa was cancelled on 10 July 2018 and that more than one year has since elapsed.  The applicant advised that the cancellation of her visa was causing her great stress, and her children were suffering.  She said it was also impacting on her own health. She stated that it has impacted the relationship of her son with his partner.

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

125.   The applicant advised that she has not breached any law, not even a traffic offence.

126.   On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.

Any contribution made by the applicant to the community

127.   The Tribunal notes that the applicant has not made any direct contribution to the community but acknowledges her status as a single mother who has, since 2011, raised two teenage children who have gone on to achieve exemplary academic achievements.

128.   The Tribunal also accepts that the applicant has integrated into her community and has formed a number of close friendships.

Whether there would be consequential cancellations under s.140

129.   There are two dependent children of the applicant in Australia whose visas would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa and the finding by this Tribunal that the applicant is not stateless as claimed but is an Iranian citizen.

130.   The Tribunal notes the many decisions of this Tribunal (differently constituted) that have nevertheless set aside cancellations of visas of many of the applicant’s family members.

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

131.   The Tribunal is mindful of the applicant’s extensive family connections and network in Australia.

132.   The Tribunal is mindful of the decisions of this Tribunal (differently constituted) which have set aside the visa cancellations of many of the applicant’s direct relatives.

133.   The Tribunal is mindful of the fact that the applicant’s family members in Australia would face hardship if the applicant were required to return to Iran.

134.   If the applicant’s visa is cancelled, she would be subject to s.46(1) of the Act, barring him from applying for a further Visa in Australia (including a Bridging Visa) unless the Minister exercises her non-compellable discretion. Further, if the applicant’s visa is cancelled, she would be subject to the s.48A(1B) bar. She would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.

135.   The Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.

Conclusion

136.   Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By the deception of her mother, of which the Tribunal finds the applicant had knowledge and has deliberately avoided responding to in the response to the NOICC, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing her claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.

137.   However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time. It is a very significant period of time, and proportion of the lives of the two children.

138.   The Tribunal is very mindful of the applicant’s mental state and medical conditions. The Tribunal notes that the applicant has no family support network in Iran but for one sister who has been recently diagnosed with an advanced form of cancer and who is seeking migration to [Country]. The Tribunal is cognizant that the applicant has no contact with her husband and accepts that she is unaware whether he is even alive. The Tribunal notes from the numerous letters of support from family and friends, and from the letters from the children’s universities, that it would appear that the applicant and children have integrated favourably into their community.

139.   The Tribunal finds that the applicant knew of, and participated knowingly in the deception by her mother and in doing so has shown a willingness to deceive the Australian authorities herself. The Tribunal is satisfied that the applicant is not a generally credible witness, however, after weighting the considerations identified above and particularly in paragraphs 105 to 120 and 124 to 135, the Tribunal is minded to exercise its discretion in the applicant’s favour on the basis of family unity principles and its obligation to consider the best interests of the children and of the applicant.

140.   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 visas should not be cancelled.

DECISION

141.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants Subclass 866 (Protection) visas.

Michael Hawkins
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.