2000642 (Migration)

[2021] AATA 5332

2000642 (Migration) [2021] AATA 5332 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2000642

MEMBER:Kate Millar

DATE:15 December 2021

PLACE OF DECISION:  Adelaide

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 December 2021 at 10:30am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – bogus document – parents deceased – family composition – Pakistan citizenship – DNA testing – non-refoulement obligations – Hazaras in Pakistan – best interests of the child – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 197, 198, 359
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, rr 2.12, 2.41

CASES

CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
COT15 v Minister for Immigration and Border Protection [2015] FCACA 190
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration, Citizenship and Multicultural Affairs v FAK19 [2021] FCAFC 153

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] came to Australia as the holder of a Partner (Provisional) visa as the spouse of [Mr A] [in] April 2010. She was later granted a Partner (Migrant) (Subclass 100) visa. On 7 December 2016, [the applicant] was granted a Resident Return (Subclass 155) visa.

2. [The applicant’s] Subclass 155 visa was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 2 January 2020 on the basis that she had provided incorrect answers on her visa application and had provided a bogus document.

3. In her visa application to come to Australia, [the applicant] claimed she was a citizen of Afghanistan who had not been previously married and did not have any children. She claimed her parents were deceased, and she had two siblings: her sister [Sister A] and brother [Brother A]. [The applicant] claimed to have lived in Afghanistan until she travelled to Pakistan in 2003.

4. In 2014 the Department received information that:

   ·[Mr A] is not [the applicant’s] real husband.

   ·Her actual husband is [Mr A’s] brother [Mr B], who arrived in Australia by boat in May 2010.

   ·[The applicant] has two children with [Mr B].

   ·Her parents are alive and well.

   ·She has two other brothers; [Brother B] who arrived in Australia by boat and [Brother C] who lives in Pakistan.

   ·They are all citizens of Pakistan.

5. The Department records show that [the applicant’s] alleged brother [Brother B] arrived in Australia in December 2012 and declared he was a citizen of Pakistan.

6. The Department obtained information that [the applicant], [Brother A] and [Mr B] have transferred money to a person with the same name as her father in Pakistan. The delegate found that to receive the money the person required identification as a citizen of Pakistan. As the delegate found that [the applicant’s] father is alive and a citizen of Pakistan, it was considered that [the applicant] is also a citizen of Pakistan.

7. As the delegate found [the applicant’s] parents were alive, the delegate also found that she had provided a bogus document, being a letter from the Ministry of Foreign Affairs in Afghanistan stating her parents are deceased.

8. As a result, a delegate of the Minister cancelled [the applicant’s] Subclass 155 (Five Year Resident Return) visa on 2 January 2020 on the basis that she had provided incorrect information in her partner visa application and had provided a bogus document.

9. This is an application for review of that decision. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

10. [The applicant] appeared before the Tribunal on 8 June 2021 to give evidence and present arguments and was represented in relation to the review by her registered migration agent. The Tribunal also received oral evidence from [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

    CERTIFICATE ISSUED UNDER S 375A OF THE ACT

12. The Department file contained a certificate issued under s 375A of the Act. If a certificate is validly issued under s 375A of the Act, the Tribunal must do all that is necessary to ensure the document or information the subject of the certificate is not disclosed to any person.

13. A certificate issued under s 375A of the Act must certify that the disclosure other than to the Tribunal of any matter contained in the document or the information would be contrary to the public interest for any reason specified in the certificate.

14. To be valid, the certificate must specify a public interest reason for non-disclosure, the information must meet the description of being against the public interest to disclose and the certificate must be signed.

15. A copy of the certificate was provided to [the applicant] prior to the hearing, and she was invited to comment on the validity of the certificate.

16. In response to the invitation to comment, it was submitted that the ability to comment on the validity of the certificate is limited as the information redacted is not before the representative, and as a result the representative is unable to comment on the Minister’s certification that disclosing the information would be contrary to the public interest. The response notes the obligation to provide clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and requests these particulars be provided.

17. The certificate specifies that the release of the information in folios 12–168 and 214–221 may disclose the Department’s lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of these methods. The certificate specifies that release of folios 9–11 would disclose or enable a person to ascertain the existence or identity of a confidential source of information and may endanger the life or safety of a person.

18. The Tribunal is satisfied that the certificate specifies a public interest reason, and that the documents specified are consistent with that reason. The certificate is signed and dated and identifies the documents to which it applies. As a result, the Tribunal considers the certificate validly issued under s 375A of the Act.

19. However, some of the information has been disclosed, in general terms, in the decision record and some could form the reason or part of the reason for affirming the decision under review. As a result, further information in general terms was also disclosed under s 359A of the Act to comply with the Tribunal’s obligations under this provision.

    REQUEST FOR FURTHER INFORMATION

20. As it appeared that some further information could result in a resolution of this matter, [the applicant] was invited under s 359(2) of the Act to provide the following information:

    ·Whether she is willing to undertake DNA tests to establish her relationship with [Brother B].

    ·Whether she is willing to provide DNA tests to determine the relationship of her children, [Child A] and [Child B] to [Mr A] and [Mr B].

    ·Whether she is willing to obtain the consent of [Mr B] and [Mr A] to undertake DNA tests to determine the relationship between them.

    ·Whether she has obtained death certificates for her parents.

21. This information was requested because the delegate had found that:

    ·[Brother B] was her brother

    ·Her children [Child A] and [Child B] are the children of [Mr B] and not the children of [Mr A], and that

    ·[Mr B] and [Mr A] are brothers.

22. The death certificates were requested as [the applicant] had previously claimed she would obtain death certificate for her parents.

23. In response, [the applicant] stated she will not provide any DNA tests because she cannot afford the tests and because [Mr A] and [Mr B] did not consent to the tests. She states she can obtain a death notice for her mother but was still attempting to obtain a death certificate for her father.

24. Before the hearing, information was provided in writing to [the applicant] under s 359A of the Act. This information contained further details of the money transfers she had made to people who are out of Australia, and the information that her sister [Sister A] had undertaken a DNA test with [Brother B] which showed strong support for a full or half biological sibling relationship between them.

25. [The applicant] was advised that information showing multiple money transfers to [Father A variants] supported other information that her father was still alive, and that multiple transfers to [Brother C] supported the allegation that [Brother C] is her brother. It was also put to her that given the amounts of the transfers, she had sufficient funds to undertake DNA testing.

26. The information that DNA test results strongly supported that her sister was biologically related to [Brother B] was relevant to her matter as this also showed she was a full or half biological sibling of [Brother B]. [Brother B] is a citizen of Pakistan, and this in turn supported that she was a citizen of Pakistan. [The applicant] was advised that given she had repeatedly provided incorrect information in maintaining she was not related to [Brother B], an adverse assessment may be made of her credibility.

    THE HEARING

27. [The applicant] gave evidence to the Tribunal the previous day in relation to the hearing in the matter of her sister [Sister A]. [The applicant] adopted her oral evidence from the previous day as evidence in this matter.

28. The Tribunal requested that [Brother A] attend to give evidence. He declined to attend the hearing of the matter in person to give evidence. He also declined to give evidence by Microsoft Teams. [The applicant] was reminded at the hearing of [Sister A] the day before about the importance of her brother attending the hearing to give evidence. He did not attend the hearing. [The applicant] said he is the only [staff] in [his employers] and one of the other workers was sick and had been hospitalised, so he was not able to attend. The Tribunal did not find this explanation convincing in the context of his failure to attend the previous day because he needed money to save for a house purchase, and his prior refusal to attend in person or by Microsoft Teams.

29. As [Brother A] came to Australia as a dependent of [the applicant], and the hearings involved the cancellation of both his sisters’ visas, it was put to [the applicant] that it was surprising he did not attend to give evidence to support her case due to the gravity of the consequences of cancelling her visa. The Tribunal draws an inference that his evidence would not assist [the applicant] to establish her case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. As it applies in this case, s 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101 or 103 of the Act. Section 101 requires a non-citizen to complete his or her application form in such a way that all questions on it are answered and no incorrect answers are given or provided. Section 103 states a non-citizen must not provide a bogus document.

31. 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.

    Did the notice comply with the requirements in s 107?

32. As the Department received an allegation that [the applicant] was married to a different person and had information to show she had provided false information about her family composition, the Tribunal is satisfied that the delegate had reached the necessary state of mind to issue a notice and that the notice issued under s 107 complied with the statutory requirements.

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

33. 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 is non-compliance with s 101 and s 103.

    Alleged non-compliance with s 101 of the Act

34. The s 107 notice specifies that the following answers were incorrect on [the applicant’s] visa application:

    ·Question 39 of form 47SP. This asks the names of any children and was left blank. The delegate states [the applicant] has a child named [Child C] born in [year].

    ·Question 19 of form 47SP. At this question, [the applicant] said she was a citizen of Afghanistan. The delegate found this was incorrect because she is a citizen of Pakistan.

    ·Question 20 of form 47SP asks whether she had been previously married and the answer provided is “no”. The delegate found this was incorrect because she was married to [Mr B].

    ·Question 37 of form 47SP. This asks for details of her parents and [the applicant] declared her parents [Father A] and [Mother A] were deceased. The delegate found this was incorrect due to information that her father was not deceased.

    ·Question 38 of form 47SP. This asks for details of all her brothers and sisters. [The applicant] lists her [Sister A] and [Brother A]. The delegate found this answer was incorrect because information available to the Department indicated she had a brother [Brother C] and a brother [Brother B].

    ·Question 74 of form 47SP. This question asks whether she had entered a relationship with her partner solely to gain permanent residence. [The applicant] answered no. The delegate considered this was incorrect as her husband is [Mr B] and not [Mr A].

    ·Question 83 of form 47SP which asked which country she had lived in for the 12 months or more during the last 10 years. [The applicant] answered that she resided in Afghanistan prior to 2003. The delegate considered this was incorrect as she had lived all her life in Pakistan.

35. In summary, the alleged incorrect information results in findings of fact about the following:

    ·Are [the applicant’s] parents deceased?

    ·Does she have siblings who were not named in her application?

    ·Is she a citizen of Pakistan?

    ·Was [Mr A] her husband at the time of her visa application?

    ·Did she enter the marriage for the sole purpose of gaining permanent residence?

    Are [the applicant’s] parents deceased?

36. [The applicant] claims her father died in Afghanistan in February 2002 and her mother died in Pakistan [in] August 2004.

37. The Department file contains information from an anonymous source that [the applicant’s] parents are alive and living in Karachi.

38. [The applicant’s] father is named as [Father A] in her visa application. DNA tests between [Brother B] and [the applicant’s] [Sister A] show they are siblings.  This supports that [Brother B’s] father is [the applicant’s] father.

39. The Department obtained information to show that [the applicant] has transferred over 3,000AUD to [Father A] (on one occasion appearing as [Father A name]). The descriptor on the transfer is generally “family maintenance.” [The applicant] has acknowledged that [Father A] is [Brother B’s] father. 

40. [The applicant’s] explanation for these transfers was that she had a paternal aunt who was sick, and she had transferred money to [Father A] to assist with her aunt’s medical treatment. [the applicant] said her aunt has since died.

41. In her statutory declaration dated 27 April 2021, [the applicant] states that [Brother B’s] parents are known for collecting money for people who do not have Pakistani identity documents. She declares she only knew [Brother B] as [Mr A’s] driver. She said after her wedding she got to know [Brother B] and his family and hired them to help them and her [Aunt A]. She acknowledges she transferred money to [Brother B’s] parents in Karachi, however she sent the money to support her [Aunt A] to pay for her medical expenses and to buy clothes from Pakistan.

42. [The applicant] stated she had seen the information in the money transfers provided by the Tribunal, and that the transfers to [Father A name variants] were transfers to [Brother B’s] father and there were also transfers to [Brother B’s] brother [Brother C]. She declares the money transfers were recorded as “family maintenance” because they were for her aunt [Aunt A]. She also declares that the money transfer operators choose a random category to assign to transfers and “family maintenance” is the most common category.

43. [The applicant] claimed she could obtain a death certificate for her father but did not provide a death certificate to the date of this decision. In her statutory declaration of 27 April 2021, she stated she was still waiting for the death certificate.

44. [The applicant] said her father died because he was sick, she said he was short of breath and may have had asthma. When he died, she and her siblings were out on the street playing. She says he was buried in Afghanistan in [a named] village.

45. In [the applicant’s] statutory declaration dated 3 November 2007, she states her father died after they moved to Pakistan which directly contradicts her oral evidence.

46. [The applicant’s] oral evidence could not be tested against that of her siblings [Sister A] and [Brother A variant] to corroborate her evidence.  [Sister A] said she did not know how her father died or where they were living when he died.  She said he must have been buried in Afghanistan.

47. [The applicant’s] brother [Brother A variant] was not called by [the applicant] to give evidence. [The applicant] was requested by the Tribunal to call [Brother A] and reminded her the day before of the importance of him attending the hearing. The Tribunal did not find the explanation for his failure to attend convincing given the gravity of this matter. The Tribunal was unable to obtain corroborating oral evidence from [Brother A] about [the applicant’s] parents. In the absence of [Brother A variant] giving evidence, there was no corroboration of her evidence about the death of her father, including the circumstances of his death or of his burial.

48. [The applicant’s] witness [Witness A] could not tell the Tribunal anything about the death of [the applicant’s] father.

49. There are substantial money transfers to a person of the same name as her father. [The applicant] acknowledged that this person is [Brother B’s] father. DNA tests show that [Brother B] is the brother of [Sister A]. [Sister A] is [the applicant’s] sister. It follows that at least one of [Brother B’s] parents is a parent of [the applicant].

50. The Tribunal concluded [the applicant’s] father is living and she has provided incorrect information that he is deceased.

51. [The applicant] provided more detail about the death of her mother. She said her mother had asthma and had increasing lung problems. This affected her liver and heart. She provided more detail about the funeral and burial of her mother, and the location of her mother’s grave in the [specified] Cemetery in Quetta. While the Tribunal has concerns about [the applicant’s] oral evidence, there is no further information to support the contention that her mother is living other than an anonymous allegation. There are no money transfers to a person of the same name of her mother. The Tribunal is not satisfied it has been established that her mother is living.

    Does she have siblings who were not named in her visa application?

1. The delegate found [the applicant] has two brothers not named in her visa application: [Brother B] and [Brother C].

2. The Tribunal obtained information showing that DNA tests between [Sister A], [the applicant’s] sister and [Brother B] had a strong likelihood of a full or half biological sibling relationship. This was put to [the applicant] under s 359A of the Act.

3. [The applicant] provided a copy of the DNA test results. This shows a 99.98% probability of [Sister A] and [Brother B] being full biological siblings, stated to be approximately 4,399 times more likely to be related as full biological siblings compared to unrelated individuals. The probability of a half sibling relationship was also 99.98%, stated to be 6,117 times more likely to be related as half biological siblings compared to unrelated individuals.

4. [The applicant] responded that she was shocked to learn of the DNA test results. She stated she does not accept the DNA test results. She says she first met [Brother B] in 2007 while he was working as a driver for [Mr A]. [Mr A] had travelled to Pakistan at that time for their wedding. She states [Mr A] became friends with [Brother B] and invited him to their wedding. She states [Mr A] transferred money to [Brother B] when he was in [a named country] trying to make his way to Australia because they were friends, not because he is her brother. On his arrival in Australia [Mr A] let [Brother B] lived with them for a little while, but this was to help a friend. [The applicant] states [Brother B’s] parents contacted her to propose a marriage between [Brother B] and her [Sister A], and this would not have occurred if they were siblings.

5. It was submitted that the higher likelihood of being half siblings in some way established that they were more likely to be half siblings. Given there is strong support for full biological siblings to a similar extent, the Tribunal does not accept this is the case.

6. The Tribunal does not accept her explanation considering the DNA test which establishes [Brother B] and [Sister A] are siblings. The Tribunal finds that [the applicant] has a brother [Brother B] who was not named in the visa application and that she has provided incorrect information about her family composition.

7. Information obtained from the Department shows money transfers to [Brother C]. [Brother C] is acknowledged to be the brother of [Brother B].

8. The financial transactions show [the applicant] transferred over 14,000AUD to [Brother C] in the period December 2013 – October 2016. This information was put to [the applicant] under s 359A of the Act.

9. In response, [the applicant] stated that [Brother C] is the brother of [Brother B] and they only know him through [Brother B] and from hiring the family for assistance in Karachi. She states while the DNA test results suggest he is also her brother, she does not consider him her brother because she has only ever had two siblings, [Sister A] and [Brother A].

10. In light of the DNA test results, the acknowledgement that [Brother C] is the brother of [Brother B], and the money transfers, the Tribunal finds that [Brother C] is also a sibling of [the applicant].

11. The Tribunal finds [the applicant] provided incorrect information about her family composition in her visa application as she has two brothers who were not declared in the application.

    Is she a citizen of Pakistan?

12. In support of her claim to be a citizen of Afghanistan, [the applicant] provided:

    ·A taskira and translation with a date of issue [in] February 2020

    ·A form and translation stating it is from the Afghan Central Civil Registration Authority

    ·A passport issued to [the applicant] from the Islamic Republic of Afghanistan [in] 2016

    ·Copies of visas for travel to Pakistan.

13. [The applicant] had previously provided to the Department a taskira issued [in] May 2007 and a translation of this taskira.

14. The Tribunal requested verification of the most recent taskira provided by [the applicant] in April 2021, however the Department advised verification of the taskira was not possible.

15. [The applicant] said she had tried to obtain an Afghan taskira and went to the Afghan embassy in 2019 to do the paperwork to obtain a taskira while absent from Afghanistan. [The applicant] provided a taskira issued [in] February 2020 and a verification of a taskira issued based on her relationship with [Brother B], stated to be a paternal cousin. As stated above, [the applicant] had also previously provided a taskira issued [in] May 2007. [The applicant] provided a copy of an Afghan passport which included visas for Pakistan issued 2013, 2014 and 2018, and stamps to show she entered Pakistan using this passport. She states that if she was a citizen of Pakistan, she would not have obtained Pakistani visas or entered Pakistan on an Afghani passport.

16. The Department of Foreign Affairs and Trade (DFAT) report, DFAT Country Information Report Afghanistan (27 June 2019) states document fraud is a major issue in Afghanistan, and genuine documents can be issued on false information and is particularly problematic for taskiras.[1] Taskiras issued before 2018 do not contain any security features. In 2018 an electronic taskira was launched but does not appear to have been widely available. It is no longer possible to verify taskiras issued.

    [1] At [5.54]

17. The Tribunal is not satisfied that the documents provided establish that [the applicant] is a citizen of Afghanistan. It is not satisfied that the visas for entry to Pakistan show she is a citizen of Afghanistan and does not accept her explanation that she would not have obtained visas if she was a citizen of Pakistan.

18. [The applicant] provided a letter from [Official A], [from Community Organisation A] stating he has known [the applicant] for 4 years and she is a Shia Muslim of Afghani origin. A person may be of Afghani origin and be a citizen of another country, and the Tribunal places little weight on this letter.

19. The Tribunal has found [the applicant] has two brothers who are acknowledged to be citizens of Pakistan. [Brother B] provided Pakistani identity documents on his arrival in Australia. DNA test results establish [the applicant] is a full or half sibling. [Brother B] names his father as [Father A] and his mother as [Mother A]. These are the names of [the applicant’s] parents, and the Tribunal is satisfied they are full biological siblings.

20. The Tribunal has also found her father [Father A] is living. The delegate relied on transfers to [Father A variants] to the [named bank] that requires a person to have a Computerised National Identity Card (CNIC) and the remittance reference number to obtain a cash payment. This is supported by reference to the website of the bank. The Tribunal is satisfied [Father A] is [the applicant’s] father, that she transferred money to him, and that he required a CNIC to access the money. The Tribunal is further satisfied a person must be a citizen of Pakistan to obtain a CNIC.

21. Section 5 of the Pakistan Citizenship Act 1951 provides for citizenship by descent if a parent of the person is a citizen of Pakistan at the time of the birth.

22. It follows that the Tribunal finds [the applicant] is also a citizen of Pakistan.

    Was [Mr A] her husband at the time of her visa application?

23. The allegation received by the Department was that [the applicant’s] actual husband is [Mr B], and that her two children are the children of [Mr B] and not [Mr A].

24. [Mr B] arrived in Australia [in] May 2010 and was granted a protection visa on 5 October 2011. [Mr B] lodged an application for a spouse visa for [Ms C] and their child [Child C]. DNA test results for [Child C] show that [Ms C] is not his mother, but that [Mr B] is his father.

25. In her interview for the spouse visa, [Ms C] stated that [Child C] is the son of [Mr B’s] first wife and named his first wife as [the applicant’s first name].

26. [The applicant] said that [Ms C] named her as [Mr B’s] first wife because she was “not happy with her” but would not disclose why this was the case and said this was a personal issue with [Ms C] and her husband. She said [Ms C] had provided a statutory declaration stating she gave false information when she mentioned [the applicant’s name].

27. The delegate also relied on photographs on Facebook on [the applicant’s] account showing [Mr B] and his [Child C] on her profile. The Department file shows this was posted as her profile picture in September 2016. [The applicant] states she thought it a nice photograph of her friend. [The applicant] is from a culture where contact between the sexes is restricted, and it is viewed as forbidden for women to post pictures of themselves on Facebook.[2] Posting a photograph of a man who is not her husband on her Facebook site seems unusual in these circumstances.

    [2] No profile pic? Indian Mufti says posting Facebook photos is ‘un-Islamic’ | Al Arabiya English

28. The delegate also relied on records to show that [the applicant] updated her residential address to [Address 1] on 6 December 2016, and [Mr B] declared on his form 80 that this was his address from July 2016. The delegate records that Department records also show [the applicant] lived at [Address 2] with [Sister A], [Brother A], [Mr A], [Mr B] and [Brother B] between approximately 2013 and 2016.

29. [The applicant] states this conclusion is incorrect, and that she had been slow to update her address with the Department. After the hearing she provided an address history from Centrelink showing she lived at [Address 2] from 24 August 2012 to 3 January 2016 and at [Address 1] from 4 January 2016 to 18 April 2017. A copy of her driver’s licence had a change of address sticker showing a change of address to [Address 1] on 11 March 2016 and back to [Address 2] from 19 April 2017.

30. [The applicant] acknowledges she did live in the same household as [Mr B] after he arrived in Australia because [Mr A] was willing to help him on his arrival. [The applicant] denies that [Mr B] and [Mr A] are brothers.

31. [The applicant] was asked if she had ever travelled out of Australia with [Mr B] and she said no. The Tribunal put to [the applicant] under s 359AA of the Act that she travelled on the same vessel and at the same period as [Mr B] to Pakistan. She said she travelled with [Mr B], her sister, her husband [Mr A] and two friends.  Her previous evidence that she had never travelled with [Mr B] was not truthful. 

32. While there is information that may cause a suspicion, or even considerable suspicion about the relationship, a suspicion based on an anonymous allegation and a report of an interview with [Mr B’s] wife is not sufficient to establish that [the applicant] did not have a genuine relationship with her claimed husband.   There is information that [Mr B] lived in the same household as [Brother A], and that she travelled out of Australia, however both the living arrangements and her travel include her putative husband and are not conclusive of her relationship with [Mr B]. 

33. [The applicant] lived with her husband for a lengthy period, and he is named on the birth certificate of their children. The relationship was accepted as genuine at both stages of the partner visa process.

34. [The applicant] was asked to provide DNA tests to establish the paternity of her children. She declined to provide these tests. [The applicant] was asked why she declined DNA tests for her children as if [Mr A] is the only husband she has had, this would be a straightforward way to establish their paternity.

35. [The applicant] said the Department is fully aware of the facts. She said her concern is what would happen if the DNA did not support her case, as happened with the sibling test between [Sister A] and [Brother B]. She said she was mentally and financially not ready to undergo DNA tests.

36. The Tribunal does not consider it is plausible in the circumstances where [the applicant] was married in Pakistan, where extra-marital affairs have serious consequences, that [the applicant] does not know the paternity of her children. In the context of transferring large sums of money overseas when she had no income, the Tribunal does not accept she cannot afford DNA tests. The Tribunal cannot see a reason why, when faced with the cancellation of the visa of the mother of his children, [Mr A] would refuse to undertake DNA tests.

37. The Tribunal carefully considered whether it should draw an adverse inference that DNA test results would not assist [the applicant] to establish that [Mr A] is the father of her children.

38. In some circumstances it would be prepared to do so. However, in this case [the applicant] has a report from a psychologist about her anxiety because of the cancellation and would need to obtain the co-operation of a person who is not a party to this matter. In these circumstances the Tribunal decided not to draw an adverse inference from her failure to provide DNA test results to establish the paternity of her children.

39. [Mr A] is named on the birth certificates of the children, and it is acknowledged she was married at the time the children were born. On this basis, the Tribunal finds [Mr A] is the father of the children.  It also finds that [Mr A] was her husband at the time of the visa application. 

    Did [the applicant] enter the marriage for the sole purpose of gaining permanent residence?

40. The Tribunal is not satisfied that [Mr A] was not [the applicant’s] husband at the time of the visa application, and it is not satisfied it has information before it to show she entered the relationship solely for the purpose of gaining permanent residence.

    Non-compliance with s 103 of the Act

41. The s 107 notice specifies that a bogus document was provided with [the applicant’s] visa application. This document is described as a letter from the Ministry of Foreign Affairs of the Islamic Republic of Afghanistan which states that her [Father A] and her [Mother A] passed away [in] February 2002 and [in] August 2004 respectively.

42. A ‘bogus document’ is defined in s 5 of the Act as a document 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.

43. The Tribunal has found her father has not passed away and finds she has provided a bogus document.

    Conclusion – non-compliance in the way specified in the notice issued under s 107 of the Act

44. For these 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:

    ·Her father is living and her answer to question 37 of form 47SP was incorrect.

    ·She has two brothers; [Brother B] and [Brother C] who were not declared on her visa application. Her answer to question 38 of form 47SP was incorrect.

    ·She is a citizen of Pakistan and her answers to questions 17 and 19 were incorrect.

45. The Tribunal also finds there has been non-compliance with s 103 of the Act in providing a bogus document regarding the death of her father.

    Should the visa be cancelled?

46. 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).

47. 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 reg 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.

48. 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 Procedures 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.

A.   Prescribed circumstances

The correct information

100.   The correct information is that [the applicant’s] father is living, that she has two brothers who were not declared on her visa application and that she is a citizen of Pakistan.

The content of the genuine document (if any)

101.    This consideration does not apply in this case.

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

102.   [The applicant’s] visa was granted on the basis that she was the spouse of [Mr A], and the Tribunal has found this is correct information.

103.   [The applicant’s] citizenship and her family composition are relevant to her identity and to character assessments, and therefore whether she met the public interest criteria as required for the grant of the visa.

The circumstances in which the non-compliance occurred

104.   [The applicant] denies that she provided incorrect information or a bogus document, and the circumstances in which the non-compliance occurred are not before the Tribunal.

The present circumstances of the visa holder

105.   [The applicant] states she has separated from [Mr A] and receives Centrelink payments. She has two children who are Australian citizens. She is currently studying English.

106.   [The applicant] states she suffers from diabetes and high blood pressure which require medication. She suffers problems with her back and receives treatment from a physiotherapist. She says her mental health has suffered, and provided a report from [name], a registered psychologist.

107.   [The psychologist] states [the applicant] suffers “major depression with severe features and extreme levels of anxiety and psychological distress”. The onset is stated to be the decision of the Department to cancel her visa.

108.   [The applicant] states that the security situation in Afghanistan is deteriorating and it is not safe. The Tribunal does not accept she would return to Afghanistan if her visa is cancelled as she is a citizen of Pakistan.  

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

109.   The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

110.   [The applicant] provide a further taskira and translation and a verification of her taskira to show she is a citizen of Afghanistan.  The Tribunal has found she is a citizen of Pakistan and finds she had provided bogus documents (within the meaning of s.5 of the Act) in an effort to maintain her claims. 

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

111.   The Tribunal is not aware of any other instances of non-compliance.

The time that has elapsed since the non-compliance

112.   The non-compliance occurred in [the applicant’s] visa application lodged 6 November 2007. This is now over 14 years ago, and [the applicant] has been in Australia since [April] 2010.

Any breaches of the law since the non-compliance and the seriousness of those breaches

113.   There is no information before the Tribunal to show there have been any breaches of the law since the non-compliance.

Any contribution made by the holder to the community

114.   [The applicant] said that she attends and volunteers at community gatherings in Australia. She provided a letter from [Official A], [from Community Organisation A] dated [in] May 2021 which states [the applicant] regularly attends their religious congregation and is an active and valuable volunteer who help organise key events.

115.   At hearing [the applicant] said she volunteers her time at community events but did not offer further detail.

116.   [The applicant] claimed that the money transfers were also community collections for Afghanis in Pakistan however did not mention this in addressing any contributions she made to the community. [Official A] also does not mention this. [The applicant’s] witness [Witness A] stated he was not aware of [the applicant] being involved in community collections.  The Tribunal does not accept she transferred money from community collections. 

117.   [The applicant] is currently studying a Certificate III in English. She said she plans to do a Certificate IV in English and then study nursing.

118.   The Tribunal finds she participates in the local community, attending functions and assisting at these events. She plans to study nursing.

B.   Other circumstances

119.   The Tribunal has also considered other factors set out in the Department’s Procedures Advice Manual.

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

120.   If the visa is cancelled [the applicant] will need to apply for another visa or leave Australia. If she did neither, she would be liable to be detained under s.189 of the Act and removed from Australia under s.198 of the Act.  For the purposes of removal, it is irrelevant whether Australia has non-refoulment obligations in respect of [the applicant] (s.197C(1) of the Act).

121.   If [the applicant’s] visa is cancelled, there are only certain types of visa she may apply for from within the migration zone (s 48 of the Act and r.2.12 of the Regulations). The type of visa for which she can apply includes a protection visa (r.2.12(c) of the Regulations.

122.   [The applicant] may apply for a protection visa if she considers she is unable to return to her country of nationality however if she does nothing, she is liable to being detained and removed.  If she applies for another visa, she may also be eligible for a bridging visa (r.2.12). 

Whether there would be consequential cancellations under s 140

1. Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa. There are no consequential cancellations in this case.

   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

124.   The facts of this case give rise to Australia’s international obligations in regard to non-refoulement and the best interests of the child.

(i)Non-refoulement

125.   The principle of non-refoulement is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and provides that no State shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

126.   Under Article 1(2) of the Refugee Convention, a refugee is a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

127.   Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, (together the ICCPR) Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).

128.   Article 7 of the ICCPR has been construed by the UN Human Rights Committee to include a non-refoulement component.[3]  Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing they would be in danger of being subjected to torture. Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing them for an act they have committed or are suspected of having committed.

[3] UN Human Rights Committee, General Comment No.20 (1992)

129.   In COT15 v Minister for Immigration and Border Protection[4] (COT15) the Full Court of the Federal Court considered whether the cancellation of a visa that was not a protection visa would result in a breach of Australia’s non-refoulement obligations. The Full Court held:

[4] [2015] FCACA 190

The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulment obligations when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.[5]

[5] At [38]

130.   It was not argued in COT15 that if a visa is cancelled, the person becomes an unlawful non-citizen, and as a result must be detained under s 189 of the Act and removed as soon as reasonably practicable under s 198 of the Act. Under s 197C of the Act, Australia’s non-refoulement obligations are irrelevant to removal of unlawful non-citizens.

131.   There have also been further developments in the view of the Full Federal Court about the extent to which the requirements for the grant of a protection visa in s 36 of the Act reflect the international obligations contained in the Refugee Convention and the Convention Against Torture. Most recently in Minister for Immigration, Citizenship and Multicultural Affairs v FAK19 (FAK19), Justices Kerr and Mortimer, with whom the Chief Justice agreed,[6] found the statutory provisions modified the obligations under the Refugee Convention as follows:

[6] [2021] FCAFC 153

(1)The modification (or abrogation) of the internal relocation principle: s 5J(1)(c);

(2)The behaviour modification requirements as a qualification to when a person will have a well-founded fear of persecution: s 5J(3);

(3)The imposition of a burden of positively satisfying a decision maker that conduct engaged in since arriving in Australia was not for “the purpose of strengthening the person’s claim to be a refugee: s 5J(6);

(4)The modification of the social group basis, by instructing decision makers to disregard certain matters relating to an applicant’s family: s 5K;

(5)The codification and narrowing of the social group characteristics: s 5L; and

(6)The codification and narrowing of what will constitute effective protection so as to deny refugee status: s 5LA (especially s 5LA(2)(c)).[7]

132.   Justices Kerr and Mortimer note that there is a demonstrated intention in enacting a statutory framework to move away from the international framework, including by removing reference to the Refugee Convention, but that the only location for assessment of non-refoulement obligations is the terms of the Refugee Convention.[8]

[8] [119]

133. The legislative scheme has also moved on, with the amendment of s.197C by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.  The effect of the amendments is that s 198 of the Act does not authorise or require the removal of a non-citizen from Australia if, in summary, the person has had a “protection finding” made in respect of him or her (s 197C(3)), unless the decision in which the protection finding was made had been set aside or quashed, a decision under s 197D has been made that a non-citizen is no longer a person in respect of whom any protection finding would be made, or the non-citizen has asked the Minister in writing to be removed. 

134. Section 197C(3) does not prevent removal of [the applicant] in this case as there is no suggestion that a previous protection finding within the meaning of s 197C(4) – (7) has been made in respect of her.

135.   The distinction between the ability to apply for a protection visa and international non-refoulement obligations may be resolved in current matters before the High Court such as PlaintiffM1/2021 v Minister for Home Affairs, however while this has been heard the decision has not yet been handed down.

136.   The visa subject to cancellation is a Subclass 155 visa. If Mrs Ali does not take any further action to apply for another visa, she is liable to be detained or removed. 

137.   [The applicant] did not make any submissions about the application of non-refoulment if she is a citizen of Pakistan.  Nevertheless, as it has not been disputed that she is Hazara, and the circumstances for Hazaras in Pakistan are also problematic, the Tribunal considered the DFAT Country Information Report on Pakistan.[9]

[9] DFAT Country Information Report Pakistan (20 February 2019)

138.   DFAT report that less than 1% of the population in Pakistan are Hazara. Most Hazaras are Shi’a Muslim.[10] Lashgar-e-Jhangvi (LeJ) and other Sunni groups target the Shi’a community and particularly Hazaras in Quetta. Hazaras are visually distinct from other ethnic groups due to their Eurasian descent.[11]

[10] ibid 3.27

[11] 3.27

139.   DFAT report most Hazaras lived in enclaves in Quetta due to the security situation, and smaller but significant populations live in other areas such as Karachi. DFAT report that:

While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still face societal discrimination and security threats.

…

DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a greater risk than other Shi’a due to their distinct appearance and to segregation.[12]

[12] 3.47

140.   If [the applicant] returns to Pakistan, she will return as a single woman, however, is likely to live with her father in Karachi. Nevertheless, there is a real chance her life will be at risk if she returns to Pakistan due to her race and her religion. Given she will be detained as an unlawful non-citizen and removed from Australia if she does not apply for a protection visa, the Tribunal finds that the cancellation of her visa may lead to a breach of Australia’s international obligations.

(ii)Best interests of the child

141.   The Convention on the Rights of the Child specifies at Article 3(1) in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

142.   In CFE16 v Minister and CFD16 v Minister,[13] (CFE16 & CFD16), Judge Reithmuller referred to Art. 3 of the Convention and stated:

[13] [2020] FCCA 1083

… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[14]

[14] At [19]

143.   Judge Reithmuller said the task required of the Tribunal is to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[15]  Judge Reithmuller states that:

[15] At [24]

… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children.  The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”.  The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[16]

[16] At [25]

144.   Judge Reithmuller notes in that case that as one of the children is an Australian citizen she is entitled to all of the protections and the benefits of the Australian state.  The cancellation of the parent’s visas, given her young age, may on a practical level mean she is unable to take advantage of her status as an Australian citizen.  Judge Reithmuller notes this is a factor that may need to be considered by the Tribunal.[17]

[17] At [28]

145.   [The applicant] has two children born in Australia, and provided the birth certificates of her children [Child A], born [on day] and [Child B], born [on day]. The father of her children is named on the birth certificates as [Mr A]. [Mr A] is an Australian citizen, and at the time of their birth [the applicant] was a permanent resident. Therefore, the children are Australian citizens.[18]

[18] Section 21 of the Australian Citizenship Act 2007

146.   [The applicant] is the primary caregiver for the children, and states the children see [Mr A] every weekend and talk to him during the week. [The applicant] states it is not safe for her children in Afghanistan or in Pakistan as they are Hazara Shias.

147.   [The applicant] said her children are Australian citizens and that if she returned to Afghanistan their father would not allow them to go with her and would start legal proceedings to prevent them leaving. She said leaving Australia would separate the children from all the family they have known including her [Sister A] and her [Brother A].

148.   As noted above she can apply for a protection visa, however the outcome of this application would depend on a further decision-making process, which in practical terms will be made more difficult due to the finding that she is a citizen of Pakistan rather than a citizen of Afghanistan as she claims.

149.   The uncertainty relating to her visa status will undoubtedly cause [the applicant] considerable distress given her existing diagnosis of anxiety and will therefore have an impact on the children in her care.

150.   The outcome of any other visa application being unknown, the Tribunal is required to consider the effect on her children if [the applicant] is detained or required to leave Australia, as in the absence of being granted another visa, this is what will be required.

151.   If [the applicant] is required to leave Australia this will involve separation from her children, as the Tribunal considers it more likely they would remain in Australia with their father. As this involves separating the children from their primary caregiver, this is not in the best interests of the children.

152.   The best interests of the children weigh heavily in favour of not cancelling [the applicant’s] visa.

CONCLUSION

153.   The Tribunal has decided there was non-compliance in providing incorrect information about her citizenship and whether her parents are living. It is not satisfied that she had provided incorrect information about the nature of her relationship with [Mr A]. Her relationship with [Mr A] goes to the central element to be established in the granting of her original visa, and the Tribunal gives weight to her likely eligibility for the visa that was granted.

154.   The degree of deception is significant and has been maintained before the Department and the Tribunal. This degree of deception would generally result in the cancellation of her visa in the absence of other factors. 

155.   The Tribunal closely considered whether this should outweigh the potential breach of Australia’s non-refoulement obligations and the best interests of her children but concluded that the non-refoulement obligations and best interests of her two Australian citizen children who would face considerable uncertainty and distress if her visa is cancelled prevailed on the circumstances of this case.

156.   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. Having had regard to all the relevant circumstances, as discussed above, the Tribunal has concluded that the visa should not be cancelled.

DECISION

157.   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.

Kate Millar
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.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.

[7] At [118]