1833030 (Refugee)

[2021] AATA 857

1833030 (Refugee) [2021] AATA 857 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833030

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Sean Baker

DATE:10 March 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 10 March 2021 at 11:15am:

CATCHWORDS

REFUGEE – cancellation – protection visa – stateless/Iran – incorrect information in visa application – stateless Faili Kurd or Kurdish Iranian citizen – voluntary return with no harm – basis of claimed harm – travel on official documents – second applicant’s brother’s Iranian citizenship – possibility for second applicant’s brother’ to obtain Iranian citizenship through means other than his father’s nationality – no reasonable state of satisfaction – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 140, 425, 438

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named 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 information in his application for protection and that the discretionary factors did not outweigh the reasons for cancellation. 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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled because of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s.425(2)(a) of the Act.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Certificate

7. On the Department file is a certificate under s.438.

8. For the reasons below, I have not found it necessary to disclose to the applicant or anyone else any of the information covered by the certificate, other than that already put to the applicant in the s.107 notice.

   The cancellation powers

9. 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.

10. 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.

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

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

12. 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 in the following respects:

13. The applicant arrived in Australia with his spouse, three children and his brother-in-law.

14. In his statutory declaration of 23 October 2011, the applicant claimed to be a stateless person, a Faili Kurd of the Shia religion, with no right to citizenship or to enter and reside in any country. He claimed to have grown up in Iran and to have been mistreated by the Basiji.

15. On 24 August 2012 the visa holder lodged an application for a Protection visa and on 4 September 2012, he provided a signed Form 866 – Application for a Protection (Class XA) visa.

16. This application included the following components which were completed in full:

17. Part B – Persons included in this application and family composition.

18. Part C – Application for an applicant who wishes to submit their own claims to be a refugee.

19. Part D – Application for a member of the family unit for all family members who do not have their own claims to be a refugee but who are included in the application. The visa holder provided Part D in respect of family members [the second applicant], [the third applicant], [the fourth applicant] and [the fifth applicant].

20. At question 1 of part B and C of the Form 866, the visa holder’s name is listed on the application as [the first applicant].

21. At question 42 of part C of the Form 866, which stated “I am seeking protection in Australia so that I do not have to go back to?” the visa holder answered, “Iran and Iraq”.

22. At questions 43, 45, 46, 47 and 48 of part C of the Form 866, he answered: “Please see Statutory Declaration attached”.

23. In the Statutory Declaration in support of his Protection visa application dated 12 April 2012 he declared he was born in Iraq, expelled to Iran and as stateless Faili Kurds, had no rights in Iran where they had no identity documents or access to health care or education.

24. The visa holder’s spouse is also listed in parts B and D, and is claimed to be stateless and not to have any other citizenship.

25. In part B the applicant also listed his brother, and claimed he was stateless.

26. In part B his spouse’s father was listed as stateless and deceased.

27. On the basis of his claims of being a stateless Faili Kurd in Iran and meeting all other criteria, the visa holder was granted a Protection visa on 17 September 2012.

28. Departmental records indicate the visa holder departed Australia [in] June 2013. He completed an outgoing passenger card upon departure dated [June] 2013. The visa holder completed Part E of the outgoing passenger card – Australian resident departing temporarily and stated he would spend most of his 2-month overseas time in Iran, visiting friends and relatives. On his return [in] August 2013 he indicated he had spent most of his time abroad in Iran. Department records indicate his spouse, [the second applicant], travelled with him and responded in the same fashion on her outgoing and incoming passenger cards.

29. The delegate considered that this indicated the applicant had provided incorrect information on his application form because the above information indicated:

    the visa holder has voluntarily returned to Iran for non-compelling reasons for a significant period of time without any indication of experiencing any serious harm that he claimed would occur in his Protection visa application. Given his voluntary return to Iran without any apparent unfavourable consequences, I consider that the visa holder did not hold the claimed adverse profile of being a stateless Faili Kurd at the time of lodging his Protection visa application. I therefore consider that the visa holder has provided an incorrect answer to question 42 in part C of Form 866.

30. The delegate went on to consider that the applicant’s answers to questions 43, 45, 46, 47, and 48 were incorrect.

31. The delegate went on to consider incorrect answers they considered had been provided in relation to [the second applicant]’s nationality in the applicant’s application form, specifically that information available to the Department indicated her brother was the holder of an Iranian passport, must therefore hold other Iranian identity documents, and therefore was an Iranian citizen and not stateless as [the second applicant] had stated in her application. The delegate went on to infer that [the second applicant]’s father must be an Iranian citizen, and that therefore [the second applicant] must be an Iranian citizen.

32. This was relevant to questions 1, 18 and 20 of Part D of the applicant’s response as well as the statutory declaration made by [the applicant] and questions 1 and 13 of Part B of the applicant’s application.

33. In his response to the s.107 notice, the applicant maintained that he was stateless and continues to be stateless and that all of his claims were as originally put in his application. The applicant travelled to Iran for compassionate reasons, being to bring his daughter-in-law to Australia. He and his wife were invited by his daughter-in-law and on this basis they obtained visas to enter Iran.

34. Further:

    Once he obtained a visa on his Australian travel document, the visa holder was able to gain entrance into Iran. At all times when he was stopped and asked for his identity documents by the Iranian authorities, he and his wife presented their Australian travel document, and were granted safe passage into Iran. For the first time in his life the visa holder was able to go to Iran confident in his 'Australian status' having been issued with an Australian Travel Document and was accordingly not in fear of persecution.

35. The following information was also submitted to the Department:

    1. [The second applicant] – Australian Titre de Voyage including evidence of Iranian visa

    2. [The second applicant] – Evidence of Protection (subclass 866) visa

    3. [The second applicant] – undated letter from [Dr A]

    4. [The first applicant] – Letter from [Dr B] – [Health services provider] dated 26 October 2015

    5. [The first applicant] and [the second applicant] – Letter from [Dr C] dated 30/11/2015

    6. [The first applicant] – VIC Drivers licence

    7. [The first applicant] and [the second applicant] – undated letter from [Organisation 1]

    8. [The first applicant] – Australian Titre de Voyage including evidence of Iranian visa

    9. [The third applicant] – [Organisation 2] invoice dated 28/04/2018 for purchase of commemorative diary

    10. [The third applicant] – 28 pages of education certificates provided by Australian RTOs.

    11. [The third applicant] – pledge of support to [Organisation 3] dated 8/11/2017

    12. [The third applicant] – business card – [The third applicant’s business]

    13. [The third applicant] – VIC Heavy Vehicle Driver Licence

    14. [The third applicant] – ASIC Certificate of Registration of a Company + invoices for advertising / insurance.

    15. [The third applicant] – ATO – Notice of Assessment FY 2015 and FY2016

    16. [The third applicant] – invoices for advertising issued by [Publication 1]

    17. [The third applicant] - National Police Certificate issued by Victoria Police on 7 August 2015.

    18. [The third applicant] – Australian Titre de Voyage + copy of Protection (subclass 866) visa

    19. [The fifth applicant] – school and training certificates

    20. [The fifth applicant] – Copy of Protection (subclass 866) visa

    21. [The fourth applicant] – Education and training certificates

    22. [The fourth applicant] - Copy of Protection (subclass 866) visa

    23. [The fourth applicant] – National Criminal History Check [issued] by National Crime Check Pty Ltd

36. The delegate considered the response but did not accept it, finding that

    … neither the Titre de Voyage issued by the Australian Government nor the Protection visa change the visa holder’s claimed ethnic origins and I find that the visa holder’s explanation for having returned to Iran without incident is not credible.

    I find that the visa holder approached the Iranian authorities and applied for an Iranian visa using a Titre de Voyage which records his nationality as stateless. The visa holder stated that he used that document to enter Iran and, as outlined in the NOICC, I have considered that he would have been required to present to the Iranian border authorities as the holder of a travel document describing his nationality as stateless. The visa holder’s voluntarily return to Iran with no apparent issue or impediment supports the consideration that he did not hold the claimed adverse profile at the time of lodging his Protection visa application nor is he of adverse interest to the Iranian authorities.

37. The delegate went on to discuss the brother of [the second applicant], and state that they (the delegate) considered it ‘… likely the visa holder is aware of his brother-in-law’s status as an Iranian citizen and the visa holder has not provided any evidence to demonstrate his wife is not an Iranian citizen.’

38. The delegate went on to consider the reasons provided by the applicant for the visa not being cancelled and concluded that they were outweighed by the grounds for cancellation.

39. To the Tribunal the applicant provided information indicating that he continued to maintain that he and his family were stateless and not Iranian citizens, that they had lost contact with [the second applicant]’s brother shortly after settling in Australia, and information on the applicant and his family including their health circumstances, social circumstances, evidence of the birth of their daughter in Australia, evidence of the conversion of the entire family to the [Christian] religion, evidence of the integration and ties to the community of the applicant’s children.

    Consideration

40. In undertaking consideration of the decision it is not open to me to decide whether there was non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] However, I am not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[2]

    [1] Saleem v MRT [2004] FCA 234 [59] - [63].

    [2] Sheptitskaya v MIBP [2015] FCCA 159 at [10]-[16].

41. When deciding whether there has been non-compliance as described in the s.107 notice, the existence of facts grounds the exercise of the statutory power to cancel and therefore the onus of establishing those facts is on the Minister or the Tribunal. [3] 

    [3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

42. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[4]

    [4] [2000] FCA 1235 at [25] and [32].

43. While Zhao involved consideration of the s.116 power, this state of satisfaction I consider is applicable in s.109 cases such as this.

44. In this particular case I also believe that Dixon J’s comments in Briginshaw v Briginshaw[5] are relevant. In that case Dixon J said:

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[6]

    [5] (1938) 60 CLR 336.

    [6] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

45. I have carefully considered the evidence obtained by the Department and other information available to me to establish the facts. On one view, the applicant’s travel, with his spouse, to Iran is highly concerning. He claimed to fear harm and sought international protection in order that he not be returned to Iran. The possession of an Iranian passport by [the second applicant]’s brother is also of concern.

46. It is certainly true that this information creates a suspicion, or impression, that the applicant may not have been truthful when he claimed to fear harm on return to Iran or Iraq as a stateless Faili Kurd who had suffered harm in Iran.

47. However, there are several difficulties with the evidence and reasoning.

48. There is, I think, considerable weight in the applicant’s argument that he returned to Iran in very different circumstances to when he departed.

49. His claimed status on departure, and that of his spouse and children, was of stateless Faili Kurds who had suffered discrimination and mistreatment on the basis of their de jure statelessness – that is, that they held no nationality of any country, and that with no documentation they were denied education, healthcare and employment. The harm that the applicant feared from the authorities stemmed from this lack of documentation and the inability to assert any legal rights.  His detention by the Basij was because of his lack of identity documents to live in Iran lawfully. He feared harm on return from the authorities and others for being a stateless Faili Kurd, left Iran illegally and has no rights to live in Iran.

50. The applicant and his spouse obtained Australian Titre de Voyage (TDV), and then applied for and were granted Iranian 90 day visas on these documents.

51. The applicant and his spouse entered Iran as the holders of Australian travel documents with lawful permission from the Iranian authorities to enter and remain in Iran for a period of time.

52. This fact would appear to change their status, in exactly the manner that led them to claim to fear harm in the first place – their inability to document and substantiate their lawfulness or otherwise.

53. It is also significant that the applicant claims that he and his family left Iran via [Country 1] and travelled without passports, false or otherwise, meaning there would be no record of him having departed Iran, lawfully or unlawfully. The fact that they were able to enter Iran without questioning is therefore entirely plausible.

54. The delegate reasoned that the TDV and the granting of the protection visa did not change the applicant’s claimed ethnic origin. The reasoning here appears particularly strained – the applicant has at all times claimed that it is not his Kurdish ethnicity per se which has led to the  harm and fear of future harm, rather the fact that as a Faili Kurd whose family was expelled from Iraq, he held no documentation or status within Iran, or Iraq for that matter.

55. The delegate went on to find that the applicant applied for an Iranian visa with a TDV that described his nationality as stateless, and then entered Iran with this documents and concluded that the visa holder’s voluntary return to Iran with no apparent issue or impediment supports the consideration that he did not hold the claimed adverse profile at the time of lodging his Protection visa application nor is he of adverse interest to the Iranian authorities.

1. However, this reasoning is based on an incorrect statement. The applicant’s TDV states his nationality as ‘Iraqi’ (See Df. 189).

2. Even if his TDV did state that his nationality was ‘stateless’, I cannot see how this leads to a conclusion that the applicant’s claims to fear harm are incorrect. There is no country information referred to, nor am I aware of any, that demonstrates that the Iranian authorities deny entry or create issues or impediments to persons attempting to enter Iran with an Australian (or any other) TDV that states their nationality as stateless.

3. I turn to the question of whether [the second applicant]’s brother’s Iranian citizenship has any bearing on her or the applicant’s claims. The s.107 notice does not provide great detail about the passport that [Mr D] acquired from the Iranian authorities in Canberra. As the passport was acquired in Canberra it appears clear that he acquired this at some point after his arrival in Australia, and likely after he had been granted protection. The passport, if this is the case, is therefore not unequivocal evidence that he held or would have been entitled to hold an Iranian passport at the time of his protection application, and therefore that he was not stateless as the applicant claimed in his protection application.

4. A further difficulty is the reasoning relied upon to conclude that [the second applicant] is not stateless but an Iranian citizen. The delegate reasons that [the second applicant]’s brother must have gained his Iranian citizenship through his father’s parentage, meaning his father must have been an Iranian citizen and therefore [the second applicant], as the child of her father, must also have acquired Iranian citizenship through descent. This is a plausible scenario. But it is not the only scenario – [the second applicant]’s brother may have acquired or obtained Iranian nationality through some other means – it is not clear from the information particularised in the s.107 notice when he was claimed to have acquired the nationality, nor the country information which indicates that the only way he could have acquired nationality is through his father.

5. The information contained in the s.107 notice is simply not sufficient to ground a conclusion that the applicant provided at the time of the visa application, incorrect information in relation to his brother-in-law, his spouse [the second applicant], or his in-laws. It rises to no more than the level of concern, or suspicion, on the information in the s.107 notice.

6. Given the above factors, I have very real doubts with the chain of reasoning leading to a conclusion that the applicant necessarily provided incorrect information in his claims for protection or the nationality status of his spouse or in-laws. As noted above, the fact that he and his spouse returned to Iran raises legitimate concerns, as does the ability of [the second applicant]’s brother to acquire an Iranian passport.

7. But I find on the information put in the s.107 notice that I cannot reach the state of satisfaction explained in Zhao in this case. When I consider all of the information, I do not accept that the return of the applicant and his spouse, and the ability of [the second applicant]’s brother to acquire, in Australia after the fact, an Iranian passport, allow me to reach a state of satisfaction sufficient to ground the cancellation. Dixon J’s comments in Briginshaw, are apposite, as I find that the chain of reasoning here relies on the inexact, on indirect inferences, and further that the gravity of the consequences here, taken with the above concerns all militate against there being a reasonable satisfaction here that the applicant has provided incorrect information in his application for protection on the basis of the information before me. It follows that I find it cannot be established that on this basis the applicant has provided incorrect information that he was harmed and fears harm in Iran on the basis of being a stateless Faili Kurd, nor that his spouse and in-laws are Iranian citizens and not stateless as claimed. Therefore, I find I cannot reach a state of reasonable satisfaction that the applicant gave or provided incorrect answers in the manner prohibited by s.101(b) in his protection application.

8. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   Conclusions

9. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

10. The Tribunal does not have jurisdiction with respect to the other applicants.

    DECISION

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

12. The Tribunal has no jurisdiction with respect to the other applicants.

    Sean Baker
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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