1829800 (Migration)

1829800 (Migration) [2019] AATA 5257 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1829800
MEMBER:Antoinette Younes
DATE:29 October 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 visa.
Statement made on 29 October 2019 at 5:12pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa application – country of citizenship – family composition – education history – activities undertaken to strengthen protection claims – degree of potential hardship – grant of visa based on false claims – integrity of visa program – credibility concerns – non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 91R, 99, 101, 107, 107A, 109, 359AA, 375A, 376
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s. 107A 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.
The applicant appeared before the Tribunal on 23 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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.
NON-DICLOSURE CERTIFICATES
Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure, otherwise than to the Tribunal, would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.
In the course of the hearing, the Tribunal advised the applicant that Departmental file [number] and [number] contain s.375A non-disclosure certificates.
The Certificates set out the reasons as follows:
·The documents or information would normally be exempt from disclosure under Part IV of the Freedom of Information Act as they would disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
·The documents or information are provided by other Commonwealth agencies where that agency would contend that the disclosure of that material to the applicant would be contrary to the public interest, stating “sensitive: personal – non-national security information. Unauthorised release might possibly cause harm to an organisation or individual”.
·The information falls within the Commonwealth’s formal security classification of ‘Sensitive’, ‘Protected’, and ‘In-confidence”.
·The documents contain personal information relating to an individual other than the applicant which was provided to the Department in confidence as part of their own visa application.
In the Checklist of Departmental file [number] there is reference to a s.376 certificate but there is no certificate attached. This appears to be an error where the incorrect box had been ticked.
The Tribunal advised the applicant that it considered the s.375A certificates to be valid but in any event the essential aspects of the material contained in the documents subject to the Certificates have been put to the applicant.
The Tribunal is satisfied that the applicant’s subsequent admissions as discussed below are consistent with the information contained in those Certificates.
Was there non-compliance as described in the s.107 notice?
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 and s.107A of the Act.
Section 101 of the Act provides that:
Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 99 of the Act provides that any information a non-citizen gives or provides, or causes to be given or provided, or is given or provided on their 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 purpose of s.100, s.101(b), s.102(b) s.104 and s.105 of the Act 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.
Section 107A of the Act provides that:
Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal in support of the application for review. Relevantly, the Tribunal noted the following:
(a)[In] October 2009, the applicant arrived in Australia as an irregular maritime arrival (IMA). On 20 October 2009, he attended an entry interview stating that his name is [Alias 1] born on [Date 1], an Iraqi National. He claimed that his deceased father’s name is [Mr A] whose date of birth he did not know.
i)   On 26 November 2009, he made a request for a Refugee Status Assessment (RSA) stating that his identity is [Alias 1] born on [Date 1], an Iraqi citizen. He stated that his father’s name was [Mr A] born in [Year 1] and was killed in 1988. On 17 September 2010, the delegate found that the applicant was not owed Australia’s protection. The applicant requested an Independent Merits Review (IMR) and on 6 April 2010, the IMR reviewer was satisfied that the applicant was a person to whom Australia has protection obligations and as a result, on 7 June 2010, the applicant lodged an application for a protection visa, subclass 866. As part of the 866 application, the applicant completed a number of forms including Forms 866B and 866C.
ii)     In the 866B Form, in response to Question 11 which asks “Do any of the persons included in this application [includes the applicant] and named in Question 1 have close relatives who are NOT in Australia at the time of application?”, the applicant referred to an attachment where he provided details about his father ([Mr A]) who was killed in 1988 and his mother ([Ms B]) who lives in Iran.
iii)   In response to questions 1, 7, 8, 14, 19 of Form 866C, the applicant indicated that his given name is [Alias 1 given name], his family name is [Alias 1 family name], his date of birth is [Date 1], he was born in Najaf, Iraq, and that he has never been married or been in a de facto relationship. In response to Question 32, the applicant indicated that he departed Iraq [in] January 1988 with his mother. In response to Question 38, he indicated that he has not received any education. In response to Question 40 about his past employment, he provided details about various positions in which he worked in Tehran.
iv)   At question 41 of the Form 866C asking “I am seeking protection so that I do not have to go back to”, the applicant answered Iraq.
v)    At question 42 of the Form 866C asking “Why did you leave that country?”, the applicant referred to his attached Statement (i.e. Statutory Declaration of 26 November 2009) provided in support of the application. In the Statutory Declaration, the applicant stated that:
·His father was a practising Shia Muslim and a strong believer. His parents were Shia Muslims and experienced troubles during Saddam Hussein’s regime. His father spoke against the regime and recited religious songs in front of crowds.
·His family fled from Karbala to Najaf, Iraq where he was born. One night the Basi (Iraqi intelligence) came to their home and took his father away. A few days later, the Basij returned to the home and told his mother that they had killed his father. They searched the home, took some books and his parents’ ID documents and they threatened to kill the applicant. They said that his mother is not allowed to participate in any religious ceremonies to mourn for his father. His mother decided to flee to Iran when the applicant was about [age] years old.
·During his stay in Iran, he had no identification documents and no recognition. The Iranian authorities are looking for young males to send to undertake military service. They interrogate young males of his age and he had to show them some identification documents. Once, the police were asking all the males in the street and he saw them. They pointed at him and asked him to show his identification documents but he ran away as he had none. His mother became very stressed and worried about the applicant; he is her only son and the only person who can provide for her.
·He has no rights in Iran and he has always been a fugitive because every time he saw the police, he had to run away as they were living illegally in Iran. He and his mother cannot return to Iraq because the authorities do not recognise them as citizens and his life could be in danger.
vi)   At question 43 of the Form 866C asking “What do you fear may happen to you if you go back to that country?”, the applicant referred to his Statement. In the Statutory Declaration, he stated:
·If he were to return to Iran, he would not be given a job or receive social benefits because the authorities do not recognise him and his mother as citizens. He has no ID or passport and if he were to return, he would be questioned about his identity. The authorities may accuse him of being a spy because he lived in a foreign country and he would not be left alone by the authorities who would follow him.
·He could not marry in Iran because he has no ID so his marriage would not be registered or recognised. In relation to Iraq, he was [age] years old when he left and he has no family or documents to return. The situation in Iraq is very insecure with suicide bombings occurring. He has no identity documents and consequently he would have no rights in Iraq.
vii) At question 44 of the Form 866C asking “Who do you think may harm/mistreat you if you go back?”, the applicant referred to his Statement. In the Statutory Declaration, he claimed that he would be harmed by the intelligence service, the Basij (Iranian paramilitary service) and the police force that do not leave him in peace.
viii) At question 45 of the Form 866C asking “Why do you think this will happen to you if you go back?”, the applicant referred to his Statement. In the Statutory Declaration, the applicant claimed that he has no documents and that the intelligence police and the Basig always check on young males of his age. He claimed that if he were caught, he would be imprisoned, interrogated and without identity documents he would get into trouble.
ix)   In response to question 46 of the Form 866C asking “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, he referred to his Statement. In the Statutory Declaration he claimed that the authorities of Iran or Iraq would not protect him because he has no ID and in Iraq, as he was young when his mother fled, he would not be recognised as an Iraqi; he has lived most of his life in Iran and knows no one in Iraq.
Based on the above claims that the applicant made, he was granted a protection visa on 9 June 2010.
The applicant accepted that he had made those claims.
Subsequent events
Notice of Intention to Consider Cancellation
On 2 March 2018, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC), referring to events that raised doubts about the applicant’s claims for protection.
The NOITCC indicates that on 27 October 2010, the applicant attended the Department’s Melbourne regional office and provided a change of name certificate showing that he has formally changed his name to [Alias 2]. In the course of the hearing, the applicant gave evidence that he did not change his name because he had done anything wrong.
The NOITCC also refers to 12 August 2014 when the applicant was interviewed by a Departmental identity officer with the assistance of a Persian interpreter. During that interview, the following matters arose:
i)   The applicant was asked to provide a list of the people in his extended family. He claimed that his mother had never told him about his family and to his knowledge, he and his mother were the only family that each other had. He claimed that he did not know the names of the friends who had put their names on his mother’s lease, utility bills or telephone and he could not state the names of any of his claimed friends who had discussed his undocumented status and suggested that he would travel to Australia. The applicant claimed that he did not know the names of the family with whom his mother was living despite being in semi-regular phone contact with her. He claimed that he did not know his mother’s address in Iran.
ii)     The applicant stated that he knew a person named [Mr C] in Iran but claimed that he had not seen him since the applicant’s arrival in Australia. The applicant stated that he and [Mr C] were friends in Iran but the applicant did not know whether he was in Australia.
iii)   The applicant claimed that he was sending money overseas to help his mother through a person named [Alias 3 given name] but the applicant did not know her full name. The identity officer asked the applicant after the interview to provide in writing the full name of the person to whom he was sending money to for his mother in Iran.
iv)   During the IMR process and in relation to the claim, denied during the interview, that the applicant and his mother had returned to Iraq in 2005 as an unsuccessful attempt to re-establish their Iraqi citizenship and regain property; the applicant confirmed that he and his mother did not go to Baghdad otherwise he would have remembered.
v)    The identity officer asked the applicant to explain how he survived in Iran without documentation for a long period of time, the applicant indicated that his mother was scared of being deported and they never went anywhere or did anything, or spoke to anyone or had any friends.
vi)   The applicant claimed that he feared that the Basij would pick him up and conscript him into the Iranian army. The identity officer put to the applicant that compulsory military service only applied to Iranian citizens and that it would be unusual to be mistaken for an Iranian on the basis of having no documents. The applicant reiterated that as he has no evidence that he is not Iranian, he was at risk of being conscripted.
The NOITCC of 2 March 2018 further indicates that following the interview, the applicant provided information to the identity officer in writing namely, a list of his family members and named [Alias 3 full name] as the person that he was sending money to for his mother.
The NOITCC of 2 March 2018 refers to the applicant attending a second identity interview on 20 August 2014 as follows:
i)   The identity officer put to the applicant that the Department had received intelligence from a non-disclosable source that the applicant had been in substantial contact with [Mr C] (born [Date 2]) in Iran during the time of the applicant staying at [specified hotel] in [Country 1] prior to his arrival in Australia. [Mr C] arrived in Australia as an IMA in February 2012.
ii)     The applicant has been in contact with a person in Iran who is [Mr C]’s sister – [Ms D] and that the applicant’s mother is living with that person who is her daughter. The person to whom applicant has been sending money in Iran for his mother is [Ms D] and not [Alias 3 full name].
iii)   [Mr C] has told the Department that when he arrived in Australia he had been in contact with a friend called [Alias 1] who changed his name to [Alias 2] two months prior to arriving in Australia. The applicant denied that he had met [Mr C] once or twice in Iran and stated that they only became friends subsequent to arrival which contradicts the applicant’s earlier claims that he had not been in contact with [Mr C] since he left Iran and that he did not know that [Mr C] was in Australia.
iv)   The identity officer explained to the applicant common features between he and [Mr C] including the maternal grandfather as having the same name, the mothers having the same name, the paternal grandfathers having similar names, the fathers having similar names, and that [Mr C] has a brother called [Alias 4], similar to the applicant’s name. The identity officer put to the applicant that it would appear that he is personally [Alias 4] to which the applicant did not respond. He was asked if he and [Alias 4] are brothers and the applicant did not provide a direct response but indicated that he did not know his full name as he had no documentation in Iraq, the names [that are the components of Alias 4] are common, he had committed no crimes, and that those claims should be checked with [Alias 4]. The applicant stated that he and [Mr C] are not “family relations”.
v)    According to Departmental records, [Mr C] (born [Date 2]) first entered Australia [in] February 2012 and has remained onshore. He lodged a visa application on 6 June 2012. [Mr C] claimed that his entire family were expelled from Iraq in 1991, they were stripped off their Iraqi citizenship and they lived in Iran since. He claimed that at the time he left Iran in 2001, his father was still alive and both of his parents were living in Iran. He further claimed that he has been married to an Iranian citizen since 2003 and he gave details about his mother, his father, his sister [Ms D], his sister [Ms E] and his brother [Mr F].
vi)   The delegate formed the view that the above suggests that the applicant did not comply with s.101(b).

In response to the NOITCC of 2 March 2018, the applicant provided a Statutory Declaration signed on 16 March 2018 in which he declared:
i)   His name is [Variation of Alias 4]. He has provided to the Australian authorities “false information” and he is remorseful and regretful. This was completely out of character and he believes Jesus Christ would help him.
ii)     He is a citizen of Iran. He does not have a right to citizenship or residence in any other country. He is an Iranian by birth and he is a Christian. His parents were born in Karbala, Iraq and they were expelled by the Saddam regime from Iraq to Iran when they were teenagers. He has [a number of siblings] all of whom were born in Tehran, Iran. His parents obtained Iranian citizenship by providing evidence of Iranian citizenship of their ancestors. His parents have told him that he and his siblings do not have any Iraqi documents.
iii)   He was born on [Date 3] in Tehran, Iran. He was born in a Shia Muslim family. He left Iran because of issues he had in regards to his political activities against the Iranian regime, his religious beliefs, and issues with his father. He has had a failed marriage; he was married [in] July 2005 and he was divorced [in] November 2008. He met his wife when he was [age] years old and it was the Islamic pressure and his family that made him get married at such a young age. He could not have any relationship with females outside of marriage but they had many differences and divorced three years later. He also had financial problems.
iv)   On his way to Australia, the people smuggler asked him about his claims for protection and he told him that he had attended anti-government demonstrations after the Iranian presidential election in 2009. He told him he was “tired of Islam” and he explained the issues relating to his father. His father forced him to attend the mosque and to attend mourning ceremonies. He had to do all his prayers from the age of 10, although the Islamic religious obligations stipulate the age of 15. He participated in prayers at the school and memorised the Quran. During compulsory military service, he noticed how Islamic leaders were “misusing people’s faith to reach power and wealth”. He did not like Islam and he could not accept it as his religion. When he renounced Islam and stopped practising at home, he had many arguments with his father who started to beat him. He went to his uncle’s place and stayed there for a while and he no longer had a good relationship with his father.
v)    The smuggler advised him that claims relating to statelessness without identification would mean that he would be granted a protection visa “very quickly”. He was told to make things simple and not provide information about his siblings and he was told to tell the Australian authorities that he is a younger person than his real age as “Australia needs young people who can work more”. He wanted to tell the truth subsequently especially after his case was refused for the first time in December 2009 and also when he applied for citizenship. However he was told by other asylum seekers and protection visa holders that if he were to tell the truth, he would be indefinitely detained and could be deported to Iran. He understands that the Department would question his integrity but he had no other choice. He believes Jesus Christ would protect him from anything that could happen to him.
vi)   He participated in anti-government demonstrations after the Iranian presidential election in 2009 and he was lucky that he was not arrested. He was witness of harsh and violent behaviour by the Iranian authorities towards those who had different political views. He tried to keep his beliefs to himself in order to remain safe in Iran.
vii) After researching his options, he was told to go to [Country 1] and to come by boat to Australia. He risked his life to come to Australia by boat and when the people smuggler asked him about his claims and the applicant told him, the smuggler laughed at him and told him that he would be deported by the Australian authorities straight away.
viii) When he was in Melbourne, he was introduced to Christianity by one of his friends and he converted to Christianity in 2013 and since then, he has been attending church. His life has changed and he talks about Christianity to his friends and family and others in Iran and Australia. He evangelises Christianity to others.
ix)   He regrets his decision to provide false information. He was interviewed and he wanted to reveal everything but he did not have the psychological power to do so as he was afraid of the consequences. After receiving the NOITCC, he saw his representative and decided to tell the truth. Despite the provision of incorrect information, he remains to fear returning to Iran. He is a good person and he is sure that he has never hurt anyone in his life. He has no criminal history. He fears that he would be detained at the airport because the Iranian authorities might know about his conversion to Christianity and his Christian activities in Australia. He might be considered as a spy. He would be tortured, persecuted and probably executed by the Iranian authorities as being an anti-government and anti-Islam activist. He has also been diagnosed with [medical conditions] about four years ago and he was told by his doctors that there is no cure for his condition.
In submissions of 16 March 2018, the representative confirmed that the applicant accepts that the ground for cancellation exists and submitted that the applicant’s visa should not be cancelled on discretionary grounds. Essentially, the representative referred to the applicant’s current claims for protection. In support of the submissions, the applicant provided translated copies of the applicant’s birth certificate, temporary National ID card, military service completion card, identity documents, pension card and current ID in the name of [Alias 2].
On receipt of the applicant’s response to the NOITCC, the Department issued a second NOITCC dated 30 July 2018, amongst other things, referring to the applicant’s response to the earlier NOITCC as giving rise to evidence that the applicant had provided incorrect information when seeking protection. In submissions dated 13 August 2018, the representative referred to the applicant’s acceptance that the ground for cancellation exists and submitted that the visa should not be cancelled on discretionary grounds.
In submissions to the Tribunal dated 18 October 2019, the representative summarised the applicant’s background and claims for protection and again confirmed that the applicant had provided incorrect information. The representative submitted that the applicant’s visa should not be cancelled on discretionary grounds, including the claimed persecution of Christian converts in Iran. The representative provided a letter of support from [Church 1], amongst other things referring to the applicant being part of the Church since early 2017 and that the applicant was baptised in May 2018.
In the course of the hearing, the applicant confirmed that he has provided false information and he offered explanations as discussed throughout this Decision.
The applicant has conceded that he has provided false information when seeking protection from the Australian authorities. On the evidence before it, the Tribunal finds that the applicant provided incorrect information when answering questions 11 in the Form 866B, 1, 7, 8, 14, 19, 38, 40, 41, 42, 43, 44, 45, and 46 of the Form 866C. For these reasons, the Tribunal finds that there was non-compliance with 101 of the Act by the applicant in the way described in the s.107 notice. Consequently, the Tribunal finds that the ground for cancellation as stipulated by s.107A exists in that the non-compliance has been in connection with a previous visa, namely the subclass 866.
Should the visa be cancelled?
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).
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 applicant has confirmed that he has provided incorrect information. In submissions, the representative acknowledged that the applicant had provided incorrect information in his visa application when claiming to be stateless as he is an Iranian citizen. The representative submitted that the applicant had other reasons for leaving Iran and for fearing returning to that country. The representative summarised the applicant’s reasons for the provision of the incorrect information, namely on advice from the people smuggler and referred to the applicant’s remorse about the provision of incorrect information.
As explained in the course of the hearing, pursuant to s.99 of the Act any information a non-citizen gives or provides, or causes to be given or provided, or is given or provided on their 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 purpose of s.100, s.101(b), s.102(b) s.104 and s. 105 of the Act 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.
The Tribunal is of the view that the explanation that the applicant had acted on the smuggler’s advice does not assist the applicant; the applicant has knowingly and intentionally provided incorrect information and his explanations are neither persuasive nor convincing. The applicant has engaged in conduct for personal gain in that to achieve a migration goal that he considered to be easier if certain claims were made.
The correct information is that the applicant’s name is [Variation of Alias 4]. He is an Iranian citizen. He was born in Tehran, Iran on [Date 4]. His father’s name is [Mr G], alive and an Iranian citizen. His mother is [Ms H] and she is an Iranian citizen. He has [number of] siblings. He was married to [Ms I in] July 2005 and they were divorced [in] November 2008. He undertook [number of] years of education in Iran. He did not hold any adverse profile of risk in relation to Iran for fear of returning because he was stateless and undocumented. He does not hold any fear in Iraq because of his father who had been killed for speaking up against that the regime.
The Tribunal considers the provision of incorrect information to be significant. In this instance the incorrect information goes to the core of the applicant’s claims.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
· the content of the genuine document (if any)
This is not a relevant consideration in this case and the Tribunal has given this aspect neutral 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
The applicant was granted the protection visa on the basis of his claims essentially, that he was stateless, that his parents experienced troubles during the Saddam Hussein’s regime, that his father spoke against the regime and recited religious songs in front of crowds, that his family fled from Karbala to Najif where he was born, that the Iraqi intelligence went to their home and took his father away, that the Iraqi intelligence told his mother that they had killed his father, that in Iran he had no identification documents, that he has no rights in Iran, and that out of fear, he could not return to Iran or Iraq. He claimed to fear that he would be harmed by the Iranian intelligence service, the Iranian paramilitary service, as well as the Iranian police force.
The Tribunal is satisfied that the decision to grant the protection visa to the applicant was based wholly or partly on the incorrect information which the applicant had provided.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
· the circumstances in which the non-compliance occurred
The Tribunal has found and for the stated reasons that the applicant provided incorrect information when answering questions 11 in the Form 866B, 1, 7, 8, 14, 19, 38, 40, 41, 42, 43, 44, 45, and 46 of the Form 866C.
In the course of the hearing, the Tribunal asked the applicant about his reasons for the provision of the incorrect information. He gave evidence that he regrets the provision of the incorrect information and he asked Jesus and the Tribunal to pardon him. He explained to the Tribunal that in [Country 1], he met a people smuggler who told him that his claims would not lead to a successful outcome and that the Australian authorities would return him. He stated that the people smuggler suggested the claims that the applicant had made in seeking protection. He said it was a big mistake on his part. He stated that he had a situation in Iran and he could not return. He said he had no other option but to trust the people smuggler.
The Tribunal asked the applicant about his Christian faith and he stated that he is a Protestant. He stated that since 2013 he has been involved in Christian-related activities in Australia. The Tribunal asked if he had evidence to corroborate his claim that he has been involved in those activities since 2013. He stated that he could not tell the Tribunal where he has been as he did not intend to gather evidence. The Tribunal referred to the letter provided by the applicant from [Church 1]. The Tribunal asked the applicant how the author of the letter knows that the applicant has been a “part of our Church since early 2017, he moved to Sydney from Melbourne in 2016 and was a part of a church in Victoria since 2013[1]”. He stated that he himself gave that information to someone who told the author of the letter.
[1] Letter of [name] dated 9 October 2019, second paragraph.
The Tribunal referred to the information in the letter that the applicant was baptised in May 2018. The applicant stated that this is his second baptism. He said he “hated” himself, felt guilty, turned to Jesus and he wanted to be baptised again for a new beginning. The applicant claimed that he was baptised in 2013 in the Uniting Church in Melbourne. The Tribunal asked him if he has a certificate of baptism and he stated that he does not. The Tribunal asked the applicant why the letter from [Church 1] does not mention anything about his first baptism and he stated that they did not know that as nobody had asked him. He stated that the letter was written based on the information known to them at the time. In relation to the second baptism, he said he was sent a baptism certificate. The applicant talked about his Christian beliefs and about the fundamental differences between Islam and Christianity; he referred to Christianity as not being a religion but “a way of life”.
The Tribunal asked the applicant about the stage in his life when he wanted to become a Christian. The applicant talked about his Islamic upbringing. He stated that as he was growing up, he realised that he had to accept Islam despite his own personal beliefs. He stated that in Iran, he had to practise Islam. He stated that he stopped practising Islam at the age of 21 but when he was with his parents and during his time at the military, he did “what he had to do”. The Tribunal asked him if he has ever renounced Islam and he confirmed that he has never renounced the religion. The Tribunal referred to paragraph 13 of his Statutory Declaration of 16 March 2018 where the applicant had declared “I did not like Islam, but Islamic regime of Iran and the experiences had in Iran made me hate Islam. During those years, I found out more about Islam and I realised that I could not accept Islam as my religion, but still had to pretend I am a practising Muslim in the society… I renounced Islam and lived without religion for many years.” At paragraph 14, the applicant stated “When I renounced Islam and I stopped practising Islam at home, I had many arguments with my father in that regards …” The Tribunal noted the inconsistency about renouncing Islam and asked the applicant for an explanation and he stated that he had said this to his family but not publicly.
The applicant gave evidence that he has a [Social Media 1] account and a [Social Media 2] account where he has posted pro-Christian messages. In relation to the latter account, he stated that he opened that account about a week ago whereas he has had the [Social Media 1] account for a number of years, since the end of 2013. The Tribunal asked the applicant if those accounts are public or private and the applicant had difficulties explaining to the Tribunal whether the [Social Media 2] account is public and accessible by others. He essentially stated that one needs to have an account with those sites in order to be able and be permitted to access his accounts. The applicant gave evidence that he had not told his representative about the [Social Media 2] account. The Tribunal asked the applicant whether the accounts are in his name and his stated that in relation to the [Social Media 1] account, he uses the name [Alias 5] and for the [Social Media 2] account, he uses [Alias 6]. The Tribunal requested supporting evidence in relation to the claim of those accounts and subsequent to the hearing, the Tribunal received copies of posts in [Social Media 1] dating back to September 2013 and [Social Media 2].
In post-hearing submissions to the Tribunal, the representative referred to the applicant’s conversion to Christianity and his Christian -related activities since 2013. The representative noted the Tribunal’s concerns about the applicant’s motive to engage in Christian-related activities in Australia but argued that the applicant is a genuine Christian who has publicised his views about Christianity in social media and even if the Iranian government does not monitor its citizens activities on [Social Media 1] and one might not know about his Christian-related activities, the applicant’s life would nevertheless be in danger in case of his return to Iran and he would not be able to practise his religion in the way he had done in the past few years in Australia. The representative noted “I understand the applicant had a significant misconduct by providing false information about himself and that would definitely affect his credibility and I understand that he should not get away with such a misconduct easily. However, he is a changed person and he is remorseful. I believe that there should not be more than one course of action against him. His visa was cancelled nearly a year ago. He could not apply for a bridging Visa, because of s.48A bar. He lost his job because of been unlawful in Australia. Even if, the respectful senior member decides to set aside the cancellation decision, he would not be able to become an Australian citizen soon because of the character test.” The advisor submitted that there are compelling and compassionate circumstances in the case.
As discussed with the applicant in the course of the hearing, if the Tribunal were to conclude that he has engaged in Christian-related activities for the purpose of enhancing his protection claims, the Tribunal would disregard those activities.
The Tribunal asked the applicant about his claims of being involved in anti-government activities in Iran. The applicant stated that he saw the Iranian government as being “all thieves… All about themselves”. The Tribunal asked him again about the actual activities and he stated that he spoke so much against the government and he was referred to as Ali Mamlekat (interpreted to mean country in Persian). He stated that he was involved with all of his friends and he told the truth. He said during the elections of 2009, he attended demonstrations. He said the authorities attacked people.

The Tribunal put to the applicant that it is difficult to accept that significant claims of Christianity and involvement in anti-regime authorities were not raised in the protection application. In accordance with s.359AA, the Tribunal discussed with the applicant the decision of the IMR which referred to the applicant being interviewed by the Reviewer on 26 February 2010[2] and there is no mention of any claims relating to Christianity or anti-government political activities. When invited to comment on or respond to that information, the applicant stated that at that time and as his case was based on “lies”, he had to continue with the “lies”.
[2] Independent Merits Review Panel, Statement of Reasons, date of report 6 April 2010, as referred to at page 2
The Tribunal put to the applicant that he has maintained his initial claims for protection for a number of years and that it was only subsequent to being issued with the NOITCC that he had decided to concede that he has provided false information when seeking protection from Australia making it difficult for the Tribunal to accept the truthfulness of his current claims. The applicant stated that he accepts that he has provided incorrect information but that he was telling the truth to the Tribunal.
The Tribunal accepts that the applicant recognises that he has provided incorrect information and the Tribunal gives some weight to his expressed remorse. The Tribunal is of the view that the applicant has obtained a protection visa on the basis of false claims. The cancellation scheme is not intended to be punitive but has an important purpose of maintaining the integrity of the migration program. The Tribunal takes the provision of incorrect information that goes to the core of the visa grant to be significant. The applicant has continued and it was not up until he was issued with the first NOITCC that he conceded that he had provided incorrect information when applying for the protection visa. The applicant has been interviewed on a number of occasions including by the IMR and at no stage did he disclose or raise any claims relating to his Christian conversion or anti-Iranian regime activities. The applicant explained that once a lie started, he felt he had to continue with that lie. The Tribunal is not satisfied in those circumstances that the applicant has been truthful about his current claims. The Tribunal asked for details about those claims and the applicant provided some but in other ways, he provided limited information about those activities. There were inconsistencies some of which are minor and the Tribunal has not drawn adverse inferences on the basis of those inconsistencies. The Tribunal finds it implausible that if the applicant had those claims when seeking protection, he did not make them; the Tribunal is of the view that claims relating to conversion to Christianity and anti-regime political activities in the context of Iran are significant and if accepted could lead to a favourable protection outcome. The applicant has been untruthful about significant issues and his credibility has remained a concern to the Tribunal.
The applicant has provided a letter of support from [Church 1] but the letter of support does not say anything about his claimed baptism in 2013 and he has not provided any evidence in support. He gave evidence that in relation to the letter from [Church 1], he told another person who told the author of the letter about his activities raising doubts about the assertions made in the letter. Although the Tribunal accepts that the applicant was baptised in May 2018, as raised in the course of the hearing, this is subsequent to the date when the first NOITCC (2 March 2018) was issued, suggesting bad faith in that it is strong evidence that the applicant is engaging in Christian-related activities for the purpose of enhancing his protection claims.
The applicant provided to the Tribunal [Social Media 1] posts in the name [Alias 5] and the Tribunal accepts that the applicant has been involved in those postings which would amount to Christian-related activities. He has also opened another social media account in the [Social Media 2] channel approximately a week before the hearing, providing further evidence that the applicant is engaging in Christian related activities to strengthen his protection claims.
In those circumstances, the Tribunal is of the view that there are legitimate reasons to question and be concerned about the corroborative evidence provided by the applicant. There are inherent problems with the documents that are provided, particularly the letter from [Church 1] which on the applicant’s evidence, contains information which he had provided through a third party. Moreover the letter makes no reference to the applicant’s claimed baptism in 2013 raising doubts about the comprehensiveness of the letter and the accuracy of the information contained in the letter. The Tribunal has decided to give the letter limited weight. The social media posts in [Social Media 1] and [Social Media 2] are not in the applicant’s name but the Tribunal accepts that the applicant has been posting pro-Christian messages.
The Tribunal has considered the evidence cumulatively including the applicant’s explanations about the provision of the incorrect information. The Tribunal is satisfied on the evidence that the applicant is not credible and there are various aspects as discussed above of the evidence before the Tribunal suggesting that he has engaged in Christian-related activities for the purpose of enhancing his protection claims and consequently the Tribunal disregards those activities.
The circumstances of the breach are that the applicant has provided incorrect information and he has continued to do so for many years.
The Tribunal gives significant weight in favour of cancellation under this consideration.
· the present circumstances of the visa holder
The applicant gave evidence that he lives alone and is no longer working. He supports himself from his savings. He stated that his parents and [siblings] are in Iran and one brother is in Australia. He stated that he has not kept in touch with his brother and any information he has about him comes from his mother in Iran. He stated that his brother has a child but he has had no contact with the child.
The applicant confirmed that he has unstable [medical conditions]. The Tribunal asked the applicant if he sees doctor in relation to his illness and he stated that he has not seen a doctor for over a year.
The Tribunal referred to the report of the Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 7 June 2018 which notes that:
2.18 Article 29 of the Constitution states that every Iranian has the right to enjoy the highest attainable level of health. The Ministry of Health and Medical Education is responsible for planning, monitoring, and supervising health-related activities for the public and private sectors. Health care and public health services are delivered through a nation-wide network, based on a referral system that starts at primary care centres in the periphery and proceeds through secondary-level hospitals in provincial capitals and tertiary hospitals in major cities. While the government remains the main provider of primary health care services across the country, the private sector also plays a significant role in health care provision, mostly through secondary and tertiary health care in urban areas. Numerous NGOs are active on health issues, particularly in specialised fields.
2.19 Health care is a major government priority, with expenditure accounting for 6.9 per cent of GDP in 2014. Iran has good health indicators by regional standards. According to the World Health Organization, life expectancy for both sexes increased by four years between 2000 and 2012. In 2017, the CIA World Factbook estimated life expectancy at 74 years (72.7 years for males and 75.5 years for females). Iran has achieved significant reductions in the rates of both under-five and maternal mortality. All Iranian citizens are entitled to basic health care coverage provided by the government, and 90 per cent have health insurance. In 2014, the country introduced a Health Transformation Plan aimed at improving efficiency, equity and effectiveness, particularly in poorer and rural areas.
The Tribunal indicated to the applicant that the DFAT’s report suggests that he would receive adequate medical treatment in Iran for [his medical conditions].
The Tribunal has considered the applicant’s personal circumstances particularly his clinical condition. However, the Tribunal is satisfied that if returned to Iran, he would receive reasonable and adequate medical care.
The Tribunal expresses empathy for the applicant and has given this aspect some weight in his favour.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In submissions to the Tribunal, the representative contended that “instead of continuing to provide false information to the department, [the applicant] accepts that his past behaviour towards the department was incorrect and accepts his wrong actions. He admitted that he is ready to bear the consequences. I believe that his self-reproach and remorsefulness need to be considered”.
The Tribunal has given some weight to the fact that the applicant has conceded that he provided incorrect information when seeking Australia’s protection, however, the Tribunal observes that this concession only came after he received the first NOITCC that is after nine years or so. He was interviewed by the Department on a number of occasions, and he was also interviewed by the IMR and at no point did he disclose the truth about his identity, nationality and other relevant information.
The Tribunal considers the long-term provision of incorrect information to be serious and the Tribunal gives this consideration significant weight in deciding to cancel the visa.
· any other instances of non-compliance by the visa holder known to the Minister
Contrary to what has been suggested by the representative in his submissions, as noted in the delegate’s decision record and is clear on the evidence that the applicant continued to provide incorrect information when he applied for the subclass 155 visa and the Tribunal considers this to be another instance of non-compliance.
The Tribunal gives this consideration weight in favour of cancellation.
· the time that has elapsed since the non-compliance
The non-compliance occurred when the applicant provided incorrect information in the application for a protection visa which was lodged on 7 June 2010, over nine years ago. In submissions to the Tribunal, the representative noted that the applicant considers Australia as his home. The Tribunal acknowledges the applicant’s views about Australia and that the non-compliance occurred over nine years ago. However given the fact that the applicant did not disclose the truth up until he was issued with the first NOITCC, the Tribunal has decided to give this consideration limited weight in his favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of the law since non-compliance and the Tribunal gives this aspect some weight in the applicant’s favour.
· any contribution made by the holder to the community.
In submissions to the Tribunal, the representative noted that the applicant has built a network of social ties to the Australian community. The Tribunal observes that the letter from [Church 1] refers to the applicant’s involvement in the Church but the Tribunal for the stated reasons has concluded that the involvement has not been genuine. The Tribunal consequently gives this aspect limited weight.
There is limited evidence before the Tribunal of the applicant’s social ties to the Australian community. The applicant gave evidence that he had worked in the past and the Tribunal gives this aspect some weight in his favour in terms of his contribution to the Australian community.
While the above 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.
There is no consequential cancellation in this matter under s.140.
The Tribunal accepts that unless the applicant makes other arrangements, including leaving Australia voluntarily, he could become liable for detention and removal from Australia. The detention that he could face could potentially be indefinite. He would also have difficulties in obtaining any further Australian visas. Although those are intended legislative consequences, the Tribunal gives this aspect some weight in the applicant’s favour.
The Tribunal has carefully considered the applicant’s circumstances and the submissions that the applicant has accepted his wrongdoing. The Tribunal acknowledges that the applicant has physical health challenges. The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant such as financial and psychological, however, the Tribunal does not consider those impacts to represent a degree of hardship to mean that the visa should not be cancelled.
The cancellation scheme is not intended to be punitive but has a significant role in maintaining the integrity of the migration programme. It would be counterproductive for a system not to have integrity measures in place to ensure compliance and proper lawful processing of applications. Providing incorrect information in the visa application is a serious and significant matter and the applicant has been granted the visa on the basis of the incorrect information. Cancelling a visa in those circumstances is not designed to punish the applicant but is about maintaining integrity.
The Tribunal is of the view that although there is hardship in case of the visa cancellation, it does not weigh strongly against cancellation.
The Tribunal now considers 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. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
The applicant gave evidence that his brother has a child but he has had no contact with either his brother or the child. In those circumstances, the Tribunal finds that Australia would not be in breach of the Convention on the Rights of the Child (CROC) in case of the visa cancellation. There is no evidence before the Tribunal that the child has a meaningful relationship with the applicant or that the child would face any difficulties or hardship in case of the applicant’s departure from Australia.
The applicant has made protection claims, namely his Christian related activities, his conversion to Christianity, and his anti-regime activities in Iran. For the stated reasons, the Tribunal has found that the applicant has engaged Christian-related activities for the purpose of enhancing his protection claims and consequently the Tribunal has disregarded those under s.91R(3). However there is a question before the Tribunal that relates to complementary protection. The applicant’s social media accounts are under different names, although there is his photograph in the [Social Media 1] account. The representative in his submissions to the Tribunal raised the issue as to whether the Iranian authorities would be aware of the applicant’s [Social Media 1] posts. Given that the applicant’s identity is not revealed in those media, the Tribunal can only speculate as to whether the Iranian authorities would be aware of those activities. On the evidence, the Tribunal does not accept that the applicant had renounced Islam in Iran or that he had stopped practising the faith, or that his father started to beat him as a result, or that he has any fear of returning on the basis of those claims. The Tribunal finds it far-fetched that the Iranian authorities would be aware of the applicant’s Christian-related activities.
In relation to the question as to whether the applicant would continue with those activities in Iran or whether he would refrain from doing so out of fear, given the Tribunal’s finding that the applicant has engaged in those activities in bad faith, the Tribunal is not satisfied that the applicant would engage in those activities in Iran or that he would refrain from engaging in those activities out of fear.
In terms of his claimed anti-regime authorities, given the credibility concerns that the Tribunal has about the applicant and for the stated reasons, the Tribunal does not accept that the applicant was engaged in any of those activities or other activities which would be perceived as been anti-regime, or that on returning to Iran, he might be considered as a spy, or he would be tortured, or he would be persecuted, or that he would be executed by the Iranian authorities for being, or being imputed with anti-government opinions or anti-Islam activism, or that he has a well-founded fear on the basis of any of those claims.
Based on the material before it, the Tribunal is satisfied that there is not a real chance or a real risk of the applicant facing serious or significant harm in case of his return to Iran. For those reasons, the Tribunal finds that Australia would not be in breach of its non-refoulment obligations.
The Tribunal observes that the Department did not conduct an International Treaties Obligations Assessment (ITOA) but the Tribunal is satisfied in this instance and for the reasons stated that the applicant is not owed Australia’s protection and consequently there are no non-refoulement obligations.
Even if the Tribunal were wrong about its conclusion in relation to the non-refoulment obligations in that the applicant is owed Australia’s protection which would mean that the Tribunal would give that weight in the applicant’s favour, the Tribunal is satisfied in this case and given the seriousness of the non-compliance, those obligations do not outweigh the other considerations in this case.
·any other relevant matters
There are no other matters relevant for consideration.
The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer in not being able to stay in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation. The applicant has provided incorrect information when he applied for a protection visa and for many years he continued to present claims to the Australian authorities that were not correct. The provision of incorrect information in visa applications is serious and the applicant’s personal circumstances as assessed by the Tribunal do not outweigh the reasons to cancel the visa.

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 155 visa.
Antoinette Younes
Senior 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.

[2019] AATA 5257

29 October 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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