1920899 (Migration)

[2019] AATA 5644

1920899 (Migration) [2019] AATA 5644 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920899

MEMBER:Denise Connolly

DATE:8 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2019 at 4:14pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – information supplied in protection application – forensic facial image comparison showed previous application under another name – mother applied for herself, applicant and siblings without his knowledge – information provided by mother incorrect – information provided by applicant correct – factors for and against cancellation – applicant’s ethnicity and work for foreign military in another country – risk of harm if returned – decision under review set aside

LEGISLATION

Migration Act 1959 (Cth), ss 101(b), 107, 109(1)

CASE

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

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his application for Protection (Class A) visas made [in] August 2012, in non-compliance with s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages, although the applicant gave most of his evidence in fluent English.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

1. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that [in] May 2012 the applicant arrived on Christmas Island on a suspected illegal entry vessel as an irregular maritime arrival and made claims to be a refugee. He was interviewed [later in] May 2012 when he stated that he was born in [Country 1] , was a citizen of Pakistan and held a Pakistani passport which he lost while travelling to Australia. He made the following claims about his family. His father is [Mr A], [DOB]. His mother is [Ms B] , DOB [Date B1] . He has [a number of]  siblings: [details deleted] .

2. The applicant indicated his family members are Pakistani citizens and that not he, or any family member, had ever applied for a visa to enter Australia.

3. [In] August 2012 the Department received the applicant’s protection visa application with which he submitted a Form 866 - Application for a Protection (Class XA) visa in which he responded to questions in Part B of Form 866 as follows:

   Q 1. Give details of ALL persons included in this application

   A. (No surname) [Applicant Name 1] , DOB: [Applicant Date 1] .

   Q 2. Has any person named in Question 1 previously apply for refugee status or a Protection visa from the Department?

   A.No.

   Q 3.Has any person named in Question 1 previously made any other type of application to the Department?

   A. No

4. The applicant provided the following responses to questions in Part C of Form 866.

   Q 1. What is your full name?

   A. (no surname) [Applicant Name 1]

   Q 4. What other names have you been known by?

   A. NA.

5. The delegate records that [in] January 2013 the applicant was assessed as a person to whom Australia owed protection obligations. The delegate in that case was satisfied that the applicant met cl.866.221(2) and a protection visa was granted.

6. The delegate records that the Department subsequently completed a facial image comparison with the applicant’s photo which was provided as part of his protection visa application and the photo of a dependent applicant, [Applicant Name 2] , DOB [Applicant Date 2] , provided with a Global Special Humanitarian (Subclass 202) visa application which was lodged  [in] June 2010. It was concluded the facial images represent the same person. The delegate formed the view the applicant had previously applied for a Global Special Humanitarian (Subclass 202) visa as [Applicant Name 2] .

7. The delegate records that [Ms B Name 2 – applicant’s mother]  DOB [Ms B Date 2]  applied for the Global Special Humanitarian (Subclass 202) visas [in] June 2010. [Applicant Name 2]  was listed as her dependent and her daughter, [Ms C], born [Date] as the sponsor. That application also included [Mr D] born [Date] and [Mr E] born [Date] as dependent applicants.

8. In the application for the Subclass 202 visas the primary applicant claimed that all of the dependent applicants and the sponsor were [Country 1] citizens and her spouse, [Mr A] was deceased. She indicated that [Applicant Name 2] had been residing in [Country 2] from May 2000 to January 2002 and in Quetta, Pakistan from January 2002. She submitted his Form 80 which listed [Ms C], [Mr D] and [Mr E] as his siblings.

9. The delegate records that [in] September 2010 [App Name 2]’s Global Special Humanitarian (Subclass 202) visa application was refused because the delegate was not satisfied there were compelling reasons for giving special consideration to grant the visas.

10. The delegate records that [in] May 2018 the applicant applied for a Five Year Resident Return (Subclass 155) visa and provided the following information in the electronic application form:

    ·on page 1, in response to the question “Give the following details as they appear in your passport”, the applicant stated:

    ·   [family name]:

    ·   [given names]:

    ·   date of birth: [Applicant Date 1]

    ·on page 1, in response to the question “are you currently, or have you been, known by any other names?” the applicant and said “No”.

11. Based on this information the applicant was granted a Resident Return (Subclass 155) visa [in] July 2018.

12. The delegate noted that the applicant had been sent a Notice of Intention to Consider Cancellation (NOICC) setting out the particulars of the alleged non-compliance with the requirement in the Act to give correct answers and he provided the following response in summary:

    ·he did not recall any such application and asked for more time to respond.

    ·Subsequently he submitted that his mother advised him about the Subclass 202 visa application which she had lodged many years ago without his knowledge.

    ·His mother did not tell him about the application as she is old and uneducated and does not understand the importance and sensitive nature of the matter. He may have been away from home at the time of that application.

    ·Everything regarding his identity in the NOICC in relation to the Subclass 202 visa application is incorrect.

    ·He is a Pakistani citizen and has Pakistani citizenship and education documents (Pakistani national ID card and high school and intermediate certificates from Baluchistan Board of Intermediate and Secondary Education).

    ·He sat an IELTS test in about 2008 while he was in Quetta and he received an overall band score of 6 - he still has the certificate.

    ·He has worked at the [foreign] military base at [Location] in [Country 1], legally as a Pakistani citizen. He has all copies of entry badges for [Location] which he can provide and the Department can verify with the relevant authorities. These were provided with the protection visa application.

13. The applicant’s migration agent provided a Form 956. He requested copies of the documents referred to in the NOICC. On 2 May 2019 the delegate provided those documents and the facial image comparison report. Neither the migration agent nor the applicant provided any further response to the NOICC.

14. Based on that information, the delegate formed the view the applicant had provided incorrect identity details in his protection visa application. She noted he was granted a protection visa on the basis that he engaged Australia’s protection obligations under the Refugee Convention. He claimed that he was born in [Country 1], held Pakistani citizenship and had not previously applied for refugee status or a protection visa in Australia. However a forensic facial image comparison conducted by the Department indicates that [Applicant Name 1] and [Applicant Name 2] are the same person, that is, the applicant previously applied for a Subclass 202 visa [in] June 2010.

15. The delegate formed the view that the applicant applied for the protection visa in Australia using an alternative identity and date of birth ([Applicant Name1] born [Date 1]) because he was refused a Global Special Humanitarian (Subclass 202) visa in the name of [Applicant Name2]. The delegate formed the view the applicant misrepresented his identity in the protection visa application to conceal his previous visa application history and the refusal outcome for the Subclass 202 visa application. She formed the view the applicant provided incorrect information regarding his family composition and relationships to conceal his other identity, [Applicant Name 2] and his unsuccessful Subclass 202 visa application. The information he gave in support of his protection visa application was material to the determination that he was found to engage Australia’s protection obligations. The delegate formed the view that if the Department had been aware of his identity declared in the Subclass 202 visa application, his protection visa application lodged [in] August 2012 may have been refused.

16. Based on the evidence before her the delegate found that the applicant had not complied with s.101(b) as he provided incorrect answers in response to questions on his Form 866 - Application for a Protection (Class XA) visa lodged [in] August 2012, as set out above. The delegate found that the applicant had provided incorrect information as confirmed by the forensic facial image comparison as the applicant had previously applied for refugee status when applying for the Subclass 202 visa [in] June 2010. She also found that by claiming that he had not previously made any other visa application to the Department, the applicant had provided incorrect information. She also considered the response “NA” to the question “what other names have you been known by?” was incorrect as the applicant had previously been known as [Applicant Name 2]. Based on the information before her the delegate found that the applicant had provided incorrect answers pertaining to his identity in his protection visa application. She formed the view the applicant had not complied with s.101(b) of the Act which requires that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

17. The delegate noted that the applicant denied that he provided incorrect information in his protection visa application and claimed that his identity and citizenship information provided in the protection visa application is correct. She noted he claimed his mother lodged the Subclass 202 visa application and used his photo without his knowledge or consent. He also claimed that his mother did not advise him about the visa application because she is old and uneducated and does not understand the importance or sensitive nature of the situation, and that she only advised him about the application after he recently asked. The delegate formed the view the applicant submissions were not credible as it was unlikely that his mother would have submitted the initial application using incorrect identity information for the applicant. She noted he was an adult at the time of the application. She also noted the surname used under his previous identity, [Applicant Surname 2], is consistent with his father’s name and matches with his purported brother’s name, [Applicant Given names 2]. She formed the view this indicates the applicant used an alternative identity, [Applicant Name 2], to apply for his a protection visa after he arrived in Australia as an IMA. She formed the view that had he declared his previous identity and unsuccessful Subclass 202 visa application, his protection visa may not have been granted. She noted that he claimed he has various Pakistani documents to prove his identity and citizenship but that he did not provide further evidence to substantiate those claims. She concluded that there had been non-compliance with s.101(b) of the Act.  In considering whether to cancel the visa the delegate considered the prescribed circumstances and formed the view the visa should be cancelled.

The relevant law

1. 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.

2. 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.

3. 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?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) which requires that a non‑citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

2. The s.107 notice particularises non-compliance with s.101(b) in the manner set out above. For the reasons discussed with the applicant at the hearing, the Tribunal finds that the Subclass 202 visa application made [in] June 2010 was an application for refugee status made by the applicant’s mother for the applicant. The Tribunal is also satisfied that the applicant has been known by other names, as the Subclass 202 visa application made [in] June 2010 was made for the applicant in the name Nazir Hussein Sawar Ali.

3. Having found that an application for refugee status had previously been made, and another name had been used for the purposes of the applicant’s Subclass 202 visa application, the Tribunal has considered whether there was non-compliance as described in the s.107 notice.

4. The first instance of non-compliance identified in the NOICC relates to the information provided in the protection visa application (Part B of Form 866) that there had not been a previous application for refugee status. The Tribunal finds that this is not the case. There had been a previous application for refugee status made for the applicant when the Subclass 202 visa application was made on June 2010. The Tribunal is satisfied these particulars demonstrate that the applicant provided incorrect information in his protection visa application.

5. The second instance of non-compliance identified in the NOICC relates to the responses given in Part C of Form 866 when the applicant indicated he had not been known by any other name. The Tribunal finds that this is not the case. He had previously been known by the name [Name 2]. Accordingly the Tribunal is satisfied the particulars set out in the s.107 notice demonstrate that the applicant provided incorrect information and there was non-compliance with s.101(b) as described in that notice.

6. The applicant has asserted that he did not make the Subclass 202 visa application; it was made by his mother. He has also asserted that he was unaware of the visa application. This is discussed in more detail below. For the purpose of this review, and on the reasons given above, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

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 content of the genuine document (if any)

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

·     the circumstances in which the non-compliance occurred

·     the present circumstances of the visa holder

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

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

·     the time that has elapsed since the non-compliance

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

·     any contribution made by the holder to the community.

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

2. At the hearing the Tribunal tested the veracity of the applicant’s claims not to be aware of his mother’s Subclass 202 visa application. The applicant gave his oral evidence in fluent English in which he is particularly articulate. The Tribunal has formed the view that the applicant’s oral evidence is essentially reliable and truthful. He was persuasive and consistent on every issue discussed with the Tribunal. The Tribunal also notes that the delegate who granted the protection visa also found the applicant’s evidence to be credible, reliable and persuasive.

3. The applicant provided to the Tribunal various documents confirming that he is a Pakistani citizen. He provided his Pakistan National Identity Card, his IELTS test results for a test undertaken in Pakistan [in] January 2008 indicating he held a Pakistani passport, various documents confirming he completed his secondary education in Quetta and Facility Access cards confirming that he worked at the [Location Military Base]. Having had the opportunity to spend time with the applicant, the Tribunal is satisfied he is about 35 years of age (consistent with the age given in the protection visa application), not 27 as indicated by the date of birth used in the Subclass 202 visa application. It is satisfied his description of the timing of his education and employment is consistent with the age 35. On the basis of all the evidence before it, the Tribunal is satisfied the applicant is in fact [Applicant Name 1], born [Date 1], and not [Applicant Name 2], the name used in the Subclass 202 visa application.

1. The Tribunal finds the correct information is that an application had previously been made by the applicant’s mother seeking refugee status, and she used an alias for the applicant in that application. Overall, while initially it had some reservation, the Tribunal accepts that the applicant’s mother made the Subclass 202 visa application with the assistance of her community and the applicant may not have known about the application. It accepts the applicant’s evidence that if he had known about that visa application, he would have disclosed it to the delegate interviewing him for his protection visa application because it was commonplace for Hazaras living in Quetta to do anything they could to get out of Quetta, particularly during the period 2009 to 2012. The applicant indicated that around the time of the Subclass 202 visa application he was working at the [Location Military Base] and it may have been the case that he was not at home in Quetta when she made the application. Having regard to the material on the applicant’s protection application file, the Tribunal is satisfied the applicant applied for the protection visa using his own identity. He also provided to the Tribunal information confirming that he had been working at the [Location Military Base] in 2010 and 2011.

2. There is no evidence before the Tribunal to suggest that the documents provided with the protection visa application were not genuine.

3. Regarding the issue of whether the decision to grant the protection visa was based, wholly or partly, on incorrect information, the Tribunal is not satisfied that this is the case. The Tribunal tends to agree with the applicant that, even if the delegate was aware that a previous humanitarian visa application had been made, his protection visa application would still have been granted on the basis of his claims to be Hazara and to have worked at the [Location Military Base] as [an Occupation 1]. The Tribunal notes the delegate considered the applicant to be highly credible. The Tribunal also accepts that he had received various threats from the Taliban particularly when he was returning to Quetta after having worked for 2 or 3 months at a time at the [military base]. The delegate found the applicant’s evidence in relation to these claims to be consistent with the country information. He found the applicant’s written evidence and verbal testimony to be coherent, internally consistent and plausible. He observed that the applicant’s responses were spontaneous and without embellishment. The Tribunal made the same observations of the applicant’s responses in his evidence at the hearing. The Tribunal is not satisfied the applicant’s protection visa was based, wholly or partly, on the incorrect information. It has formed the view that the applicant’s protection visa was granted because he is Hazara and he had been working with the [foreign] military at the [Location Military Base] and had been threatened by the Taliban as claimed.

4. Regarding the circumstances in which the non-compliance occurred, overall the Tribunal is satisfied that the applicant was not aware that his mother had lodged the Subclass 202 visa application on his behalf in June 2010 and used an alias.

5. Regarding the applicant’s present circumstances, the Tribunal accepts that while most of his family resides in Quetta, he resides with his brother in share house in Sydney. He only has one relative in Sydney; his brother. He has a partner who he married when he went offshore in June 2018. She currently resides in Quetta. The applicant was frank with the Tribunal that he returned to Quetta for a short period because his parents are old and he had not seen them for 7 years and his partner’s family were putting pressure on her to marry the applicant or they would arrange another marriage. While he is currently working as [an Occupation 2] he has in the past worked in Brisbane as [an Occupation 3]. He left that job after a year because he was lonely in Brisbane and missed the support of his Hazara and Pakistani community in Sydney. The Tribunal accepts the applicant’s evidence that he has a strong friendship community in Sydney. He is not involved in a mosque as, while he identifies as a cultural Muslim, he does not practice. He considers himself to be more of an agnostic. He has been residing in Australia since May 2012 and has settled into the Australian lifestyle and society.

6. Regarding the subsequent behaviour of the applicant concerning his obligations under the Act, the Tribunal is satisfied the applicant has been frank and honest in his evidence. He has now provided to the Tribunal various documentation confirming his oral claims that he is a Pakistani citizen, that he was educated in Quetta and that he has previously worked at the [Location Military Base] as [Occupation 1].

7. There is no evidence before the Tribunal to indicate there have been any other instances of non-compliance by the applicant.

8. There is no evidence before the Tribunal to indicate there have been any other non-compliance or breaches of the law since the non-compliance.

9. The applicant admitted to the Tribunal that he is not involved in the mosque as he is not a practising Muslim. He described himself as a cultural Muslim who is more of an agnostic. However he supports members of the Hazara and Pakistani community by assisting with translating, interpreting and completing forms. The Tribunal observed that the applicant’s English is of a high standard as he was fluent and articulate in his English oral evidence at the hearing. It accepts that he provides this support to his community.

10. The Tribunal has also given consideration to the Departmental PAM 3 guidelines. It is satisfied that, as an IMA, the applicant would be barred from making a valid application for a further visa. Consequently a visa cancellation would result in the applicant becoming an unlawful noncitizen liable to be detained and removed from Australia.

11. There is no evidence to suggest there would be any consequential cancellations under s.140.

12. While most of the applicant’s family members are residing Quetta and there are no children affected by a visa cancellation, the Tribunal is satisfied, having considered the country information in the DFAT Country Information Report, Pakistan, 20 February 2019, that as an Hazara who is no longer a practising Muslim and has previously worked for companies providing services to the [foreign military] at the [Location Military Base] the applicant may face a risk of violence from sectarian militants. While the Tribunal acknowledges that the circumstances for Hazaras have improved since 2012, given his circumstances and history, the Tribunal is not satisfied there is not a real chance the applicant would suffer serious harm if he returned to Pakistan. The Tribunal is of the view the applicant may not be able to reside safely in Quetta, given his circumstances and history. While the country information indicates that Hazaras experiencing societal discrimination security threats relocate to Lahore, Karachi and Islamabad there is some evidence to suggest that the enclaves in those areas are still unsafe and that poorer Hazaras have to pool their resources to survive. The Tribunal accepts the applicant’s evidence that he does not have any relatives living outside Quetta, apart from his brother who lives with him in Sydney.

Conclusions on the exercise of the discretion

48.    In considering the various factors in the exercise of its discretion, the Tribunal is mindful that it has accepted that the applicant was not aware that his mother had made the Subclass 202 visa application on his behalf, using a different name and date of birth. It has also accepted his argument that had he known about that visa application he would have disclosed it to the delegate. The Tribunal has found the applicant to be a credible witness and in testing the veracity of his claims has found that he has been truthful and consistent and provided evidence without embellishment. He had opportunities to indicate that his brother who has recently been injured at work is reliant on him. However he made it clear that his brother continues to be independent and rarely needs his assistance except when he needs something interpreted or translated.

49.    The Tribunal is of the view that while there has been non-compliance it is not highly significant and did not lead to a decision to grant of visa which would not otherwise have been granted. The applicant has been in Australia now for 7 years. The Tribunal accepts that he is well settled in the community and provides other Hazaras and Pakistanis with support. It accepts his evidence that he hopes to study in the future and make a stronger contribution to his community.

50.    The Tribunal is of the view a visa cancellation would adversely impact the applicant who was granted protection on the basis of his claims that there was a real chance he would face serious harm if he returned to Pakistan. While circumstances have changed in Quetta in that the instances of violence are not so frequent and extreme, the situation for Hazaras in Pakistan is still problematic. The Tribunal notes that the applicant has many family members living in Quetta. Having described their circumstances and employment situation the Tribunal is not satisfied they are at the same risk as the applicant who has previously worked at the [Location Military Base] and, while a cultural Muslim, identifies as an agnostic. The Tribunal is satisfied the applicant was not embellishing this evidence.

51.    The Tribunal is satisfied the applicant has not personally provided bogus documents as it finds the Subclass 202 visa application was made by his mother. It is satisfied there is no evidence to indicate there have been any other instances of non-compliance or breaches of the law. The Tribunal is also satisfied the applicant intends to study in the future and make a more significant contribution to his community. It is satisfied he currently contributes to his strong Hazara and Pakistani friendship community in Australia by providing support and assisting with interpretation and translation.

52.    Overall 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Denise Connolly
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.