1934462 (Migration)

[2021] AATA 4086

1934462 (Migration) [2021] AATA 4086 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934462

MEMBER:Sean Baker

DATE:15 October 2021

PLACE OF DECISION:  Melbourne

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 15 October 2021 at 2:45pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) visa – incorrect information in application – relationship status – marriage certificate provided – applicant did not provide incorrect information in relation to his citizenship status – representative provides a compelling explanation – minor nature of the breach – hardship – mental health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 100, 101, 107, 109, 197C, 375A, 376, 425
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar v MIMA [1999] FCA 156
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Wu Shan Liang (1996) 185 CLR 259
SCAN v MIMIA [2002] FMCA 129
Zhao v Minister for Immigration [2000] FCA 1235

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. [The applicant] claims to be a national of Afghanistan. He was granted a protection visa on 10 February 2010. In his protection application he claimed he and his family had fled Afghanistan and had lived unlawfully in Pakistan. He claimed to be a citizen of Afghanistan and no other country. 

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

3. The delegate cancelled the visa on the basis that the delegate concluded the applicant had provided incorrect answers in his protection application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Having carefully reviewed the material on the Department and Tribunal files, I have come to the view that I should decide the review in the applicant’s favour on the basis of the material before me. In these circumstances, and pursuant to s.425(2)(a) of the Act, the Tribunal has decided to make its decision on the review without inviting the applicant to appear.

5. The applicant was represented in relation to the review by his 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.

   Non-publication order

7. The Tribunal has made an order dated 15 October 2021 that information that would identify the applicant must not be published by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Certificates

8. On the Department file is a purported s. 375A and s. 376 certificate covering different folios. Having regard to the claim made in both certificates of the public interest and the level of detail provided of the damage to the effectiveness of lawful investigative methods, as well as the information covered which, as noted by the applicant’s representative has been largely disclosed, I am prepared to accept on the face of it that these certificates are valid.

   Applicable law

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 notices, being the manner particularised in those notices, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notices was non-compliance with s.101(b) in the ways described below.

13. On 3 May 2017 the Department issued the visa holder a Notice of Intention to Consider Cancellation of his Resident Return (subclass 155) visa granted on 15 July 2016. The Notice advised the visa holder that the Department considered he had provided incorrect answers in his Protection (subclass 866) visa application lodged 8 February 2010 in regard to his relationship status, citizenship status and claimed fear of harm in Afghanistan. In particular, the Notice advised him that the Department considered he had not complied with section 101(b) of the Act based on his answers to questions 14, 21, 22, 42, 43, 44, 45 and 46 of Part C of Form 866. In addition, the Notice advised the visa holder that the Department considered he had provided an incorrect answer at question seven of Form 80 submitted 31 December 2009 as part of his Protection visa application by answering "Engaged" when asked for his relationship status.

14. On 16 May 2019 the Department received adverse information regarding the visa holder's Taskera. Following the visa holder's consented examination, the NSIA found that the information recorded on his Taskera, [number], first provided to the Department on 18 May 2017 does not correspond to records held by the Population Registration Directorate (PRO) in Afghanistan.

15. On this basis the delegate concluded that the applicant had also not complied with s. 107(2) in responding to the s. 107 notice.

    Marriage

16. The delegate found that the documents provided by the applicant, and his concession of this to be the case, established that the applicant was married at the time he had lodged his protection application. The applicant has conceded that he was married on[date] August 2007.

17. The applicant has claimed that his answers indicating he was engaged were provided by his agent and interpreters who failed to understand his instructions.

18. In submissions provided to me, the applicant’s representative provides a compelling explanation for how the applicant’s response that he had a nikah nama (an informal document on which most Afghan marriages are based) with his wife were misinterpreted by interpreters and the applicant’s representative at that time as more akin to an engagement. I find the arguments made in relation to this convincing. In particular I also agree with the submissions that the delegate’s speculation that the visa holder claimed to be engaged so he would not be asked for evidence of his marriage which may indicate he was a Pakistani national does not appear logical. Having regard to the decision of the 2010 protection delegate, they noted that the applicant had provided no identity documents but that his fluency in the Hazaragi dialect of Dar, memory of Afghanistan as a child and knowledge of the Shia religion were consistent with his claims and on that basis accepted his identity. It does not appear at all likely that the protection delegate would have requested evidence of the applicant’s marriage in these circumstances, nor that the applicant would have felt compelled to hide it.

19. I accept the explanations and version of events provided by the applicant and his current representative.

20. However, Subdivision C, in my view, does not provide for what I accept was an innocent mistake and an artefact of imprecise interpretation and the time limited nature of the applicant’s representation at that time. Section 100 specifies that an answer to a relevant question is incorrect even if the person who gave it or caused it to be given did not know it was incorrect. I find that the answer to question 14 on the form C in which it was answered ‘engaged’ was incorrect because at that time the applicant was married and in this respect the applicant has breached s.101(b). The caselaw specified in the submissions made to the Department is not helpful, this case is not a PIC 4020 case.

    Citizenship status and claimed fear of harm on return to Afghanistan

21. The delegate had a range of concerns which lead the delegate to find that the applicant is a Pakistan national and therefore has answered incorrectly when asked what nationality he held, whether he had any further nationalities. It also, the delegate found, indicated that the applicant did not fear harm on return to Afghanistan as he had claimed, on the basis that as a Pakistan national he would not be returning to Afghanistan.

22. It is difficult to follow the reasoning in the decision record. The reasoning begins with a consideration of the explanations offered by the applicant to the concerns raised by the delegate in the s.107 notice, before proceeding to consider the applicant’s Taskera which was submitted to the Department in May 2017 and two years later the Department was provided with information from the Islamic Republic of Afghanistan National Statistic and Information Authority National Identity Verification Center (NSIA) had found the applicant’s Taskera did not correspond to records held by the Population Registration Directorate (PRO) in Afghanistan. The delegate goes on to find the Taskera to be non-genuine, provided to support his claims to be an Afghan national, to infer the applicant was born in Pakistan as a Pakistan citizen and therefore that the applicant provided incorrect information in response to the s.107 notice and therefore the delegate was not satisfied of the visa holder’s claimed Afghan nationality. The delegate went on to give consideration to the letter provided by the Afghan Embassy in Canberra but did not accept this letter as sufficient to establish that the applicant had been born in Afghanistan.

23. The delegate went on to indicate concerns with the applicant’s lack of information about where he claimed to live in Afghanistan, the fact that his marriage appeared to have been a traditional Pakistani marriage, his having driven in Pakistan, and the fact he was provided an opportunity to submit supporting evidence but did not do so.

24. Further concerns are raised in the Department file, which as the applicant’s representative to my mind correctly notes, may have influenced the delegate in their decision making. These include the applicant’s multiple trips to Pakistan, his date of birth, his signature, education, and appearance.

    The Taskera

25. I have carefully considered the Taskera and the NSIA document. The NSIA document states that the citizen ID is rejected but gives as a reason only ‘The information of the Tazkira is not corresponding to the PRD records.’ No further details on which information in the Taskera does not correspond is provided. This seems particularly odd given that there was a gap of some two years between the Department being provided with the Taskera and the NSIA letter. There appears no explanation of what information is incorrect, nor an explanation for why the verification took such a long time.

26. In weighing the NSIA information, I have also had regard to the letter provided from the Afghan Embassy in Canberra dated 25 October 2017 which certified the applicant as a citizen of Afghanistan and is signed by a consul. I have also had regard to further information which has now been provided. The applicant has provided what appears on its face to be a genuinely issued Islamic Republic of Afghanistan passport, issued [in] 2021.

27. The Afghan Embassy in Canberra states that new machine-readable Afghan passports (such as that issued to the applicant) will only be issued once the Taskera is verified by NSIA.[1] (my emphasis).

    [1] Embassy of the Islamic Republic of Afghanistan, Canberra – Australia, PASSPORT - EMBASSY OF THE ISLAMIC REPUBLIC OF AFGHANISTAN CANBERRA - AUSTRALIA (mfa.af)

28. This information indicates that the Embassy verified the applicant’s Taskera before issuing the passport to the applicant.

29. This information appears to directly contradict the information provided to the Department by the NSIA in May 2019.

30. I have carefully considered the information before me. I prefer the information of the passport when considered with the above quoted information from the Embassy’s website of their methods for verifying and issuing passports. This is provided from the Australian Embassy of the Republic of Afghanistan as it was at that time, which I consider an authoritative and credible agency to provide information on the identity of the country’s citizens and their identity documents. I note that passports are considered to be a primary identity document, and there are sophisticated anti-fraud measures in machine readable passports. I further note the information on which the Embassy verifies a person’s identity before issuing a passport. Further weight is also obtained from the 2017 letter issued by the Embassy.

31. On this basis I find that the applicant is a citizen of Afghanistan, born in [Afghanistan] on [date]. I also find, further, that I do not accept that the Taskera which the applicant provided to the Department is a bogus or non-genuine document. in making this finding I note that it appears from the information before me that I have two contradictory pieces of information which have been obtained from the NSIA, the earlier one obtained by the Department, and the most recent obtained by the Embassy in Australia in verifying the applicant’s Taskera for the purpose of issuing the applicant’s passport. For the reasons above I place greater weight on the more recent information obtained from what I consider to be an authoritative source, the Embassy in Australia.

32. On this basis I do not accept that the applicant provided incorrect information in his response to the s. 107 notice.

    Weakness in the applicant’s biographical details

33. I have carefully considered the concerns expressed by the delegate in the decision record. The delegate was concerned that the applicant was unable to recall details of his life in Afghanistan before he claimed his family had fled to Pakistan. I note however that the applicant was [age] when his family departed, and that the concerns of the delegate appear to stem from the lack of detail provided by the applicant in his identity interview in August 2016, some 20 years after the applicant had departed Afghanistan. I consider it unreasonable to require detailed recollections of a childhood which was interspersed with violence and the need for the applicant and family to flee some 20 years later. The reliance on this factor is especially concerning given the delegate accepted the claims the applicant had a history of mental health issues. I note further that the protection delegate in 2010 was satisfied with the applicant’s memory of Afghanistan. For these reasons I do not accept that the applicant’s lack of detail about his childhood in Afghanistan provides any weight towards a finding that the applicant is not a citizen of Afghanistan.

34. I have carefully considered the information that the applicant celebrated his wedding as a traditional Pakistan marriage, not as a tribal Afghan Hazara marriage. I cannot see how this raises any concerns for the delegate. The applicant at the time of his marriage had lived his teenage and early adult years in Pakistan. His wife may also have done the same. It appears to me entirely coherent for them and their families to celebrate their wedding in the manner they would have seen in local media and in their daily lives. For these reasons I do not accept that the applicant’s Pakistan style of wedding provides any weight towards a finding that the applicant is not a citizen of Afghanistan.

35. I have carefully considered the fact that the applicant claimed to have driven once a week, and the view of the delegate that the applicant must therefore have had a licence and registered his vehicle, both of which would have required Pakistan identification documents. This is, in my view, in the realm of speculation. The delegate concedes that enforcement of vehicle registration and licence requirements in Pakistan may be inconsistent. I give no weight to this towards a finding that the applicant is not a citizen of Afghanistan.

36. Finally, the delegate notes that the applicant was given an opportunity to submit supporting documents following a return to Pakistan but did not do so. This appears particularly odious. The applicant has claimed that he and his family resided in Pakistan unlawfully. Such an existence would be precarious at best. It follows that they would have had scant if any access to documents to support their lives there. Only if one is already satisfied that the applicant is not who he claims to be can one place any weight on this as a factor going to his citizenship. I place no weight on this.

37. I have also had regard to the information in the Department file which it appears may also have persuaded the delegate. The applicant travelled to Pakistan a number of times. It appears that he did so as the holder of an Australian TDV, having a lawful right to travel out of and return to Australia at that time. It is not clear therefore how this raises concerns. I have had regard to the information about his date of birth. Given my findings above in relation to the passport as evidence of his citizenship, place of birth and date of birth, I find these concerns have no merit.

38. I have considered the claim that the applicant had a well-formed cursive signature and that he appeared to have a level of education consistent with a Pakistan national. This does not appear to me to raise any suspicion or concern given that the applicant has consistently claimed to have attended some English schooling where, presumably, he was required to write. It is not clear to me and I do not accept that the identity officer or anyone else had relevant qualifications in handwriting analysis. I find this concern has no merit.

39. Lastly is the matter of the applicant’s appearance. There is discussion on the file that the applicant’s appearance is not strongly consistent with that of a Hazara. It is not clear what the qualifications and basis for making this observation are. It is also conceded that he does have some facial characteristics consistent with the appearance of Hazara and may be of mixed ethnicity, and it is conceded he speaks Hazaragi. Fluently. This speculation does not in any way cast doubt on the applicant’s claims.

40. To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. This must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [2]   It has been stated that the principles in Briginshaw v Briginshaw[3] have no direct application in the context of administrative decision making. [4]   

    [2] Zhao v Minister for Immigration [2000] FCA 1235 at [25] and [32].

    [3] (1938) 60 CLR 336.

    [4] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.

41. But it is worth reflecting that the cancellation of a permanent visa is a very significant matter. In this case, the matters litigated in the cancellation were found to be true by the original protection delegate. In such matters:

    ‘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]’

1. I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent visa to consider these factors when weighing whether the proof obtained is sufficient to ground the power. In this case, it is not.

2. I find that the applicant did not provide incorrect information in relation to his citizenship status and claimed fear of harm in Afghanistan in his answers to questions 21, 22, 42, 43, 44, 45 and 46 of Part C of Form 866. Nor did he, for the reasons given above, not comply with s. 107(2) in responding to the s. 107 notice.

3. I note and confirm that the delegate concluded the Form 80 submitted 31 December 2009 was not submitted for the application and therefore was not answered incorrectly as part of that application.

   Conclusion

4. For these reasons, the Tribunal finds that there was non-compliance with s.101  by the applicant in the way described in the s.107 notice in relation to his relationship status at the time of the application as indicated in question 14 of Part C of Form 866 only. In relation to all of the other matters as above I find the applicant did not answer incorrectly.

   Should the visa be cancelled?

5. 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).

6. 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.

7. As detailed above, I have found the applicant did not answer incorrectly the other answers set out in the s.107 notice and was not non-compliant with s.107(2). 

8. I have therefore considered the information I have found was answered incorrectly, being the information that the applicant was engaged when he was in fact married.

9. The correct information is that [the applicant] and [wife] were married in a nikah nama ceremony on [date] August 2007. I accept as above that the applicant communicated information which was correct but which was misinterpreted either by the interpreter or the applicant’s appointed agent at that time and reproduced as ‘engaged’, and that this was an accident and entirely unintentional on the part of the applicant. Considering the lack of intent on the part of the applicant, the fact this can be characterised as a mistake of interpretation, I give this a little weight in favour of the visa not being cancelled.

10. I have had regard to the copy of their marriage certificate provided. I accept that this is a genuine document and evidences their marriage on [date] August 2007. As above I accept that the applicant communicated information which was correct but which was misinterpreted either by the interpreter or the applicant’s appointed agent at that time and reproduced as ‘engaged’, and that this was an accident and entirely unintentional on the part of the applicant. Considering the lack of intent on the part of the applicant, the fact this can be characterised as a mistake of interpretation, I give this a little weight in favour of the visa not being cancelled.

11. I have carefully considered whether the grant of the protection visa was based wholly or partly on the applicant’s written responses which indicated he was engaged not married at that time. I can see no advantage the applicant gained from the fact that this incorrect information was provided in written answers. In particular I noted above that I did not accept the speculation engaged in by the delegate that the applicant may have claimed to be engaged so he would not be asked for evidence of his marriage for the reason set out above. I find rather that there was a lack of intent on the part of the applicant to mislead and that this appears to me clearly to be an innocent mistake of interpretation. I give this factor therefore significant weight in favour of the visa not being cancelled.

12. As above I accept that the circumstances in which the non-compliance occurred can be correctly characterised as an innocent mistake of interpretation and I can find no evidence or even credible speculation to support that the applicant deliberately or knowingly stated or caused to be stated that he was engaged to hide the fact that he was in fact married. I give this factor therefore significant weight in favour of the visa not being cancelled.

13. I have had regard to the information provided to the delegate and more recently to me. I accept the most recent submission which states that the applicant has been left without certainty, that the long drawn out process of the cancellation over a number of years adversely impacted the applicant’s mental health, and that the applicant has since the cancellation been unable to regularise his status and has not been able to work or access Medicare. I accept the characterisation in the submission of his extreme financial hardship and note the information provided in the request for fee waiver to the Tribunal. I give this factor significant weight towards the visa not being cancelled.

14. I have had regard to the subsequent behaviour of the applicant. He has complied with requests for comment to address the identified concerns of the delegate at each stage. As above I have found that he did not breach s. 107(2). Indeed, he has been engaged and attempted to assist the delegate at each step, providing documents where he was able to and as requested. I give this some weight in favour of the visa not being cancelled.

15. There are no relevant instances of non-compliance by the visa holder in relation to his protection application or 155 visas. I give this no weight towards the visa not being granted.

16. The non-compliance occurred eleven years ago. This is a considerable period of time but not unusual. What is perhaps unusual is the period of time in which the Department held the cancellation of the applicant open, which would clearly have caused him considerable distress. The Department clearly had the legislative power to do this. But was it conscionable? Was it ethical to do so in all of the circumstances? I cannot answer these questions. I give this factor some weight towards the visa not being cancelled.

17. There is no information before me to indicate any breaches of the law since the non-compliance and I give this some weight towards the visa not being cancelled.

18. In considering the contribution of the applicant to the community I have had regard to submissions and the supporting letter from his former employer. I accept that the applicant was a productive and valued member of the community prior to the cancellation. I give this factor some weight in favour of the visa not being cancelled.

19. 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.

20. In relation to the policy requirements which are relevant to this case, I have considered that there are no consequentially cancelled visa holders attached to the applicant. There are no children of the applicant or in his care. I have carefully considered the question of non-refoulment. I have read and am in agreement with the decision of the AAT in 1901883.[5] I agree with the view that cancellation of the applicant’s visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because of s.197C. The applicant has been subject to mandatory legal consequences as a result of the detention. He has become unlawful and liable to detention, although I note that this has not been the result of the cancellation thus far. However, s. 46A has profoundly affected the ability of the applicant to access health care or continue employment.

    [5] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021).

21. In relation to the hardship caused to the applicant, I reproduce here the submission which sums up the awful cost the applicant has paid:

    We submit the overall treatment of [the applicant] by the Department in this case is a relevant matter to consider with regard to the use of the Tribunal’s discretionary power. We rely on our submissions above in relation to the highly flawed decision-making process undertaken by the delegate and Department and reiterate the indignity that [the applicant] has faced in having almost every aspect of his entire life called into question. [The applicant] had already endured significant hardship throughout his life prior to coming to Australia after having had to flee Afghanistan as a child. The decision to cancel his permanent visa has caused a significant deterioration in his overall position in life, having his marriage end and losing any and all certainty as to his safety in the world.

22. In relation to the policy requirements I give the hardship caused to the applicant and the mandatory legal consequence factors significant weight towards the visa not being cancelled and the other factors no weight for the reasons discussed.

    Conclusion

23. 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, given the minor nature of the breach and having regard to all the relevant circumstances, as discussed above, which overwhelming favour the visa not being cancelled the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. 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.

    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.