1930334 (Refugee)

[2020] AATA 4847

1930334 (Refugee) [2020] AATA 4847 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1930334

COUNTRY OF REFERENCE:                   Iran

MEMBER:Antoinette Younes

DATE:29 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2020 at 9:55am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – nationality – stateless – race – Faili Kurd – religion – conversion to Christianity – character grounds – Iranian citizenship – deceived by people smuggler – fear of arrest – fear of killing – non-refoulement obligations – genuine committed relationship with an Australian citizenship – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007, s 25
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 48, 65, 140
Migration Regulations 1994, Schedule 2; r 2.41

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

7. 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.

8. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

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

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

10. 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.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

12. 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.

13. Section 98 provides:

    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.

14. Section 99 of the Act provides:

    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.

    BACKGROUND

15. [In] November 2009, the applicant arrived in Australia without a valid visa as an illegal maritime arrival.  The applicant lodged the application for a protection visa on 29 January 2010.

16. During 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.

17. Relevantly, the Tribunal indicated that when lodging the application for a protection visa, he provided signed Form 866B – Application for a Protection (Class XA) visa and Form 866C Application for an applicant who wishes to submit their own claims for a refugee.

    a)On the Form 866B, at questions 12 and 13 which ask the applicant to list all supportive documents, the applicant indicated that he had no documents and cannot provide any because he is stateless and was never issued with any documents.

    b)On the Form 866C, in response to question 19 asking about citizenship at birth, the applicant indicated that he is stateless (IRAN).  In response to question 20 about current citizenship, the applicant indicated that he had none.  In response to question 23, asking if stateless, how, when and why the citizenship was lost, the applicant responded “I am Kurdish Failli and born in Iran.  I do not have any documentation and the Iranian Govt will not recognise me.” 

    c)At question 41 of the Form 866C, he indicated that he was seeking protection in Australia so that he does not have to return to Iran. In response to question 42 asking about the reasons for departing that country, he referred to an attachment, namely a Statutory Declaration dated 4 December 2009. 

    d)In the relevant parts of that Statutory Declaration, the applicant claimed that, amongst other things, he is a stateless Faili Kurd who has no rights in Iran and had regularly faced ill-treatment and harassment by the Basij. 

18. The applicant was granted a protection visa on 3 February 2010 based on the claims he has made.

    Events subsequent to the grant of the visa

    Notice of Intention to Consider Cancellation of the approval for conferral of Australian citizenship

19. [In] February 2015, the applicant applied for Australian citizenship by conferral.  In the application, the applicant stated that his parents were stateless.  The application for citizenship by conferral was approved [in] March 2015.  However, [in] September 2018, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOITCC) of the approval for conferral of the Australian citizenship on the basis that the applicant may not be of good character. 

20. The NOITCC indicated that there are doubts about his claimed statelessness, as he might have or could have obtained Iranian documentation.  The NOITCC indicated that it appears that he is not of good character as a result of the provision of the false and misleading information concerning his identity.

21. The applicant responded to the NOITCC of the approval for conferral of the Australian citizenship in a Statutory Declaration and submissions dated 15 October 2018 as follows:

    ·He did provide incorrect information concerning his citizenship when he arrived in Australia.  He is remorseful and regretful. He was deceived by the people smuggler prior to arriving in Australia.  He was fearful to reveal his Iranian citizenship.  He feared that his visa would be cancelled and that he would be deported to Iran.

    ·He was born in Tehran on [date 1] ([date] in Iranian calendar).  He did not provide incorrect information about his date of birth which was converted incorrectly by the interpreter.  Apart from his citizenship, the applicant has provided correct information.

    ·He left Iran because of issues he faced due to his religious beliefs and ethnicity as a Faili Kurd.

    ·He has no criminal record.  He has been in Australian community for nine years and has adjusted to the Australian culture.  He considers Australia home.  He has abided by Australia’s laws.  He is a successful businessman who worked hard to establish his business and to learn English.  He is married to an Australian citizen and he has converted to Christianity.

22. In support, the applicant provided character references, a translated Iranian birth certificate and a national identity card both showing his date of birth of [date 1].  In a Form 1023, the applicant provided the correct details about his citizenship.

23. The applicant’s approval for conferral of Australian citizenship was cancelled [in] October 2018 under s.25 of the Australian Citizenship Act 2007.

    Notice of Intention to Consider Cancellation of the protection visa

24. On 25 February 2019, the Department sent to the applicant a NOITCC of the protection visa to which he responded in a Statutory Declaration of 8 August 2019 and submissions of 11 March 2019.

25. In the Statutory Declaration, the applicant confirmed that he did provide incorrect information on advice of the people smuggler.  He stated that regardless of his citizenship, his life would be in danger if deported to Iran.  He noted that he came to Australia when aged [age] years and he left Iran due to his Faili Kurd ethnicity and religious issues, namely, being a Muslim who renounced Islam.  He has converted to Christianity.  He accepts full responsibility for the provision of incorrect information and hopes to be forgiven for his sins.  He has publicly expressed anti-Iranian regime and anti-Islam feelings.  He has evangelised Christianity and he is a known convert.  If forced to return to Iran, he would be detained, tortured and probably executed for his anti-authorities and anti-Islam activities.  He ‘begs’ for forgiveness but understands that his credibility could be questioned.  Apart from a minor driving offence, he has no other “criminal history in Iran and Australia”.

26. In submissions dated 11 March 2020, essentially confirming that applicant’s acceptance that incorrect information has been provided in breach of s.101(b) of the Act and expression of remorse.  The representative contented that the visa should not be cancelled as the discretionary factors weigh in the applicant’s favour, including non-refoulement obligations and the hardship caused to the applicant’s Australian spouse.

27. In support, the applicant provided a copy of his Baptism Certificate dated [in] December 2017.

28. In submissions to the Tribunal, the representative summarised the applicant’s case conceding that the applicant did provide incorrect information when applying for a protection visa.  The representative contended that the visa should not be cancelled when considering the discretionary factors as they weigh in the applicant’s favour.

29. In the course of the hearing, the applicant acknowledged that he provided incorrect information.  He expressed contrition.

30. Subsequent to the hearing, the Tribunal received supporting documents essentially relating to the applicant’s practice of Christianity in Australia, his marriage to an Australian citizen and business details.

31. There is no dispute that the applicant provided incorrect information in the application for a protection visa when he claimed to be stateless.  The applicant is a documented Iranian national of Kurdish ethnicity.  He is a Faili Kurd.

32. For those reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

33. 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).

34. 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

35. The correct information is that at the time of lodging the application for a protection visa, the applicant was a citizen of Iran and not stateless as claimed.

36. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

37. In the application for protection visa, the applicant claimed he did not have any documents as a result of being stateless, which was incorrect.  In response to the NOITCC of the protection visa, the applicant confirmed that he had been issued with an Iranian birth certificate at birth dated [date 2], and an Iranian national identity card which expired [in] February 2013.  The Tribunal is satisfied that those documents are genuine.

38. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     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

39. The Tribunal is satisfied that the most significant integers of the applicant’s protection claims relate to his claims of being a stateless Faili Kurd and that he did not have the right to enter and reside in Iran or any other country.  Contrary to those claims and for the stated reasons, the Tribunal has found that he is a documented Iranian national. 

40. The Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that the applicant was a stateless Faili Kurd and that there was a real chance that the applicant would suffer serious harm on his return to Iran on the basis of his statelessness.  The Tribunal is satisfied that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa, including the accompanying statutory declaration.

41. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

42. The circumstances in which the non-compliance occurred are that in the application for a protection visa, the applicant provided incorrect answers about his citizenship, by claiming to be a stateless Faili Kurd, who did not have any documents concerning his nationality.

43. The applicant has subsequently acknowledged that he did provide incorrect information as about his nationality.  He asserted that he was influenced by the people smuggler and others.  The Tribunal has found those explanations to be unpersuasive and unconvincing. In any event, ss.98 and 99 put the onus on the applicant to ensure that correct information is provided.

44. Although the Tribunal gives significant weight to the circumstances in which the non-compliance occurred in favour of cancellation, the Tribunal gives some weight to the fact that that the applicant has acknowledged wrongdoing and expressed contrition.

    ·     the present circumstances of the visa holder

45. The applicant has been married to an Australian citizen since September 2017 and they plan to have a family.  The applicant gave evidence that he and his wife run a business.  The applicant provided to the Tribunal evidence of the relationship.  He provided Statutory Declarations from individuals attesting to the genuineness of the relationship, lease documents showing both the applicant and his wife on the lease, photographs of the couple together, and medical notes referring to the wife undergoing the IVF program.  There is no evidence to suggest that the marriage is contrived.  On the evidence, the Tribunal accepts that the relationship is genuine and continuing.  The fact that the wife is undergoing IVF is a significant factor for the Tribunal as it suggests, amongst other things, the couple’s mutual commitment to one another and plans for a future together.

46. The Tribunal is satisfied that in case of cancellation, both the applicant and his wife would suffer significant emotional, psychological and financial hardship.

47. The Tribunal gives this aspect significant weight in the applicant’s 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

48. Subsequent to the issuance of both NOITCC, the applicant acknowledged that non-compliance had occurred in that he had provided incorrect information when applying for the protection visa.

49. The Tribunal gives this aspect weight in the applicant’s favour.

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

50. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.

51. The Tribunal gives this aspect weight in the applicant’s favour.

    ·     the time that has elapsed since the non-compliance

52. The non-compliance occurred on 29 January 2010, when the applicant lodged the protection visa application.

53. Since that time, the applicant has married, plans to have a family, has established a business in Australia.  He has also claimed to have converted to Christianity and the Tribunal will deal with that claim under other consideration. 

54. The non-compliance occurred over 10 years ago.  The Tribunal is satisfied that during that period, the applicant has established himself in Australia both personally and professionally. 

55. The Tribunal gives this aspect weight in the applicant’s favour.

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

56. There is evidence before the Tribunal that the applicant was convicted in 2012 of traffic offences, namely, failure/refusal to undergo breath analysis, drive with middle range PCA, and drive on the road while licence is suspended.  The applicant was fined $1212 and disqualified from driving for 18 months.

57. As discussed in the course of the hearing, the Tribunal considers driving offences to be serious as they relate to safety.  The Tribunal expressed concerns about this conduct and explained to the applicant that it was critical of drink driving offences.  The applicant stated that this never happened again.

58. The Tribunal gives this aspect weight in favour of cancellation.

    ·     any contribution made by the holder to the community.

59. The applicant claims that he is an active Christian convert in the church and community.  He stated that he helps anyone in need.  The applicant has established a business.  The Tribunal considers those to be positive contributions to the Australian community.

60. The Tribunal gives this aspect weight in the applicant’s favour.

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

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. In case of cancellation, the applicant would be subject to ss.46(1), 46A(l) and 48A(1B) of the Act, barring him from making a valid application for a further visa, including a protection visa.  He would be subject to an exclusion period under Public Interest Criterion (PIC) 4013 limiting the grant of a further visa for a specified period. The applicant could become an unlawful non-citizen and liable to be detained under section 189 and removed from Australia under section 198 of the Act.  He could however choose to return to voluntarily return to Iran. 

2. Although those are intended legislative consequences, in the applicant’s case they carry a significant degree of hardship such as the impact on his wife as a consequence of the potential detention and removal from Australia.

3. The Tribunal gives this aspect weight against cancellation.

   ·whether there would be consequential cancellations under s.140

4. There is no evidence of any consequential cancellation under s.140.

5. The Tribunal gives this aspect neutral weight

   ·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.  

6. The Department did not undertake an International Treaties Obligations Assessment. 

7. The applicant has made a claim that he has converted to Christianity.  He claims to have converted from Islam to Christianity in Australia, to regularly attend church, and to be actively involved in Facebook publications.  He fears serious harm from the authorities in that if he were to return to Iran, he would be considered an apostate with anti-regime views.  In written submissions, the representative referred to multiple country information reports highlighting the ill-treatment of converts from Islam.  The variety of referenced reports in the representative's submissions highlight that Christian converts in Iran are arrested, subject to discrimination surveillance, and other harsh and violent treatment by the state.  The representative also referred to the most recent DFAT report indicating an ongoing crackdown on Christian converts in Iran.

8. The claim of Christianity was extensively discussed in the course of the hearing.  The Tribunal is of the view that some of the applicant’s answers were scripted and appeared to be rehearsed.  However, he demonstrated a level of understanding of Christianity, commensurate with the level of a person who is learning about Christianity.  The Tribunal is of the view that the development of religious beliefs and commitment are a journey travelled at one’s own pace and there are no strict ‘rules’.  The applicant has provided corroborative evidence such as a Baptism Certificate and Statutory Declarations referring to his Christian-related activities in Australia, which include Church attendance and Facebook comments. 

9. The Tribunal has considered the applicant's motivation for converting to Christianity in Australia, noting that it is required to disregard such conduct in Australia unless satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.  This is not the case here as the applicant became active in Christian-related activities, including baptism in late 2017, after the visa grant and prior to the NOITCC of the approval for conferral of the Australian citizenship, [in] September 2018.

10. In order to determine whether there is a real chance of serious harm, the Tribunal has considered how the applicant would act on return to Iran as a Christian convert. Although the Tribunal has some doubts, the Tribunal accepts on the totality of the evidence that if he were to return to Iran, he would continue to actively practise his Christian faith, by attending church, seeking out other Christians, and speaking of his Christian faith.

11. DFAT’s report[1] in relation to the treatment of Christians and those who convert from Islam notes the following:

    3.37

    According to the most recent national census (2016), there are 130,000 registered Christians in Iran.  Ethnic Armenians concentrated in Tehran and Isfahan are the largest group of recognised Christians. Other recognised Christian groups include Assyrians, Chaldeans and Sabean-Mandaeans, although the latter group does not self-identify as Christian. Those citizens able to prove they or their families were Christian prior to 1979 are also recognised. Conversions after 1979 are not recognised (see Unrecognised Christian Groups (House Churches)). The ethnic churches have different denominations – there are Assyrian Catholic, Orthodox and Presbyterian congregations – but the members of the various denominations maintain close links within their own community. Because the law prohibits citizens from converting from Islam to another religion, the government only recognises these groups because their presence in Iran pre-dates Islam.  Recognised churches are required to deliver sermons in their traditional language. Farsi-language services are not permitted, as they could promote proselytisation. There are approximately 20 officially recognised Christian churches in Iran. All pre-date the Islamic Revolution (the authorities have not granted permission for the construction of new churches since 1979).

    …

    3.54

    According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs.

    …

    3.57

    International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common.

    [1] DFAT Country Information Report, Iran 14 April 2020.

12. Although the information suggests that the Iranian authorities are not particularly concerned about the practice of recognised religions, the information indicates that to avoid harm, abroad Christian converts would need to maintain a low profile and not engage in proselytising. The Tribunal observes that individuals seeking protection are not required and cannot be expected to live 'discreetly' to avoid potential harm: Appellant S395/2002 v MIMA (2003) 216 CLR 473.

13. On balance and having regard to the country information concerning the situation for Christian converts from Islam in Iran, the Tribunal accepts that should the applicant return to Iran, now or in the foreseeable future, there is a real chance he would face serious harm from the authorities. The Tribunal accepts that the treatment of converts who come to the attention of authorities in Iran constitutes serious harm as contemplated by the Act.  The Tribunal accepts that the applicant practises Christianity openly, that he intends to continue to do so, and that he fears that in Iran, he would be subject to persecution, including arrest and detention.

14. The weight of country information before the Tribunal indicates that the applicant's fears in this regard are well-founded and that there is a real chance that continuing to practise his Christianity would draw attention to his conversion from Islam and expose him to harm. The Tribunal finds that the applicant's religion is the essential and significant reason for the harm which the applicant fears.

15. The Tribunal accepts as plausible that the applicant is a Faili Kurd but on the evidence before it, the Tribunal finds that he is a registered Faili Kurd and country information indicates that on that basis alone, there is not a real chance or a real risk of serious or significant harm.  However, being a Faili Kurd increases his chances of serious harm.

16. The Tribunal therefore finds that the applicant is owed Australia’s protection and consequently Australia would be in breach of its international obligations, such as non-refoulement obligations.

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

17. The Tribunal is satisfied that the visa cancellation would result in emotional, psychological, and financial hardship to the applicant and to his wife.  The applicant would face major difficulties in remaining in Australia with his family.  Cancellation also means potentially he would have to depart Australia prior to the conclusion of the IVF program in circumstances where he and his wife have evidently invested money, time, emotional energy and commitment.

18. The Tribunal gives those matters significant weight in the applicant’s favour.

19. There are no other matters requiring consideration.

    Concluding remarks

20. The Tribunal has carefully considered the material before it individually and cumulatively.  The provision of incorrect information in a visa application is a serious matter.  The legislature and policy makers intended adverse consequences, including cancellation.  There are aspects in the in favour of cancellation but there are many in his favour including his contrition, family, non-refoulement obligations and his contribution to the Australian community.  On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.

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

    DECISION

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