2102390 (Refugee)

2102390 (Refugee) [2022] AATA 4547 (4 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Priscilla Jamieson
CASE NUMBER:  2102390
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:4 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 04 October 2022 at 6:07pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground for cancellation – incorrect information in visa application – Faili Kurd – claimed lack of citizenship status – failure to declare brother in visa application – consideration of discretion – grant of visa not based on incorrect information – mental health issues – time elapsed since the non-compliance – prospect of indefinite detention – degree of hardship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 189, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
statement of decision and reasons
application for review

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
On 9 February 2021, the delegate cancelled the visa on the basis that they concluded the applicant had provided incorrect answers in certain respects in relation to his Protection visa application in breach of s 101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a [age]-year-old man from Andimeshk, Iran. According to Departmental records he arrived in Australia [in] November 2010 having left Iran at an earlier date (via [Country 1]). He was granted a Protection visa on 16 November 2011 (having applied on 9 November 2011) based on his alleged status as a stateless (‘Showhan (Faili) Kurd’) person who did not have Iranian nationality.
The applicant appeared before the Tribunal on 15 September 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from his treating psychologist, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
On the Departmental file is a copy of a notice of intention to consider cancellation (NOICC) dated 4 February 2020 in which the delegate advised the applicant his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) of the Act. He was advised to respond in writing. The applicant provided a statutory declaration in response, dated 17 February 2020.
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?
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.
Background (including NOICC particulars)
The non-compliance identified and particularised in the s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his Protection visa application in certain respects. Specifically, the notice recounts that on 14 October 2011 an Independent Merits Reviewer (IMR) found the applicant was a person to whom Australia had protection obligations (reviewing an earlier decision by the Department that found he was not a refugee in a Refugee Status Assessment (RSA) dated 4 May 2011).
The applicant lodged a Protection visa application (Part B and Part C of Form 866) on 9 November 2011. In that application he answered several questions about his identity, citizenship status, family composition, whether he had served in the military, reasons for leaving Iran and fears upon return there, among other things. He also provided a statement of claims dated 30 January 2011 which detailed his background, past experiences living as a stateless person in Iran, reasons he left Iran, and fears if he were to return there. On the basis of this information, the applicant was granted a Protection visa on 16 November 2011.
On 3 December 2015, the applicant applied for Australian citizenship. According to information contained in the NOICC, following this application, the Department conducted checks through the Australian High Commission in Tehran (the Post) as to his claimed statelessness (among other things). Specifically, staff from the Tehran Post contacted an individual called [Mr B] who provided them with the applicant’s details, and of his family including accurate details of his mother, sister and brother, [Mr C] (the latter had not been declared previously). Further, [Mr B] purportedly said the applicant had completed compulsory military service (which only Iranian citizens undertake), had been issued with a shenasnameh[1], and was helping him financially, as his son.
[1] Iranian birth booklet/certificate.
It is also recorded in the NOICC that the evidence before the Department was that the applicant made financial transactions to his father, [Mr B], who resides in Kuzestan, Iran (where the applicant was born).
The NOICC notes the applicant was invited to comment on this adverse information received from the Department’s Iranian Post by a Departmental officer (and other concerns) in relation to his Australian citizenship application in a letter dated 25 January 2018. In a written response dated 29 March 2018 the applicant stated (among other things) that he had a brother called [Mr C] but said his father is not [Mr B], but someone who had contacted him in Adelaide telling him he had information about his brother (who had died) and later about his sister and father.
Based on the response from the Post in Iran about an individual ([Mr B]) claiming to be the applicant’s father and his assertions that the applicant was an Iranian citizen, as well as other concerns summarised below, the delegate suspected the applicant was an Iranian citizen and had been at the time he applied for protection. The concerns (as set out in the NOICC) were as follows:
- Identity documents: The applicant’s evidence to the Department – specifically at his entry interview on 4 December 2010 (and reiterated in his submission provided in respect of the RSA and his Protection visa application) - was that he was stateless; in Iran had been issued a Green Card since birth; this card was renewed every 5-6 years; the Green Card permitted him to work and he worked as a [Occupation 1] from 1997 to October 2010 (and undertook some [other specified] work); and when he went to renew his drivers’ license (around two months before his entry interview), the police confiscated his Green Card. However, country information indicates that from 2002 Iran replaced the Green Card, and issued Fail Kurds with White Cards, which expired annually.
- Departure from Iran: The applicant’s claims at his entry interview and when assessed by the RSA delegate about leaving Iran on a fake Iranian passport which (along with his tickets) were arranged by a smuggler called [Mr D] is not supported by country information which indicates that Iran has very strict procedures to depart airports.
- The applicant’s family: The applicant has maintained the following about his family members since his arrival in Australia: his father was [Mr E] ([age] in 2011); his mother was [Ms F] (deceased); and his sister was [Ms G] ([age]in 2011). Additionally, he said his father and sister were deported to Iraq in 2000, and he had not heard from them since. The information from the Iranian Post however indicates the applicant’s family composition as follows:
§Father - [Mr B]
§Mother[2] - deceased
[2] In the Department’s letter to the applicant dated 25 January 2018 in respect of his Australian citizenship application it states his mother’s name given by [Mr B] was ‘[Ms F]’.
§Sister - [Ms G] (living in Andimeshk)
§Brother - [Mr C] (deceased in approximately 2007)
§Brother - [Mr H] (married and living in [City 1], Iran)
§Brother - [Mr I] (living in Andimeshk)
- The applicant’s religion: The applicant claimed to be Sunni and to have been persecuted in Iran as a result. In his entry interview he said he was an Iraqi Kurd of Sunni faith, and said he was a Faili Kurd at his RSA interview. However, country information indicates that Faili Kurds are predominantly Shias. The RSA delegate noted in their decision record the applicant had advised (in response to a letter from the delegate asking about this issue) that his father was Kurdish Shia, and his mother Kurdish Sunni; his father claimed he was Faili Kurd because their side of the family is Faili, yet the applicant followed his mother’s Sunni religion. However, country information indicates it is custom for children to take their fathers’ religion. (The NOICC also records that the applicant said he took up Christianity at age 10 at the RSA interview, but at the end said he was a practising Sunni.)
- The applicant’s language proficiency: Because of alleged inconsistencies about the applicant’s language proficiency, the delegate was of the view the applicant was attempting to conceal his Iranian citizenship. That is, at his entry interview on 4 December 2010 a Persian/Farsi interpreter was employed as the applicant had purportedly claimed he spoke Farsi fluently; at his RSA interview on 30 January 2011 the applicant said he is only able to understand the Kurdish dialect but speaks Persian and Arabic; and he spoke Persian/Farsi at all interviews and with his representative. However, in a submission provided to the Department when asked to comment on adverse information, he said he speaks Arabic and Kurdish, and is not fluent in Farsi (Persian).
The applicant’s response to the NOICC
In a statutory declaration dated 17 February 2020, provided in response to the NOICC, the applicant states that [Mr B] is not his father; he was introduced to [Mr B] by a person named [Mr J] (whose surname he does not remember); he believes [Mr B] lives in Andemeshk; and that [Mr J] has departed Australia permanently as he was involved in criminal activities. The applicant confirms his father is [Mr E], as indicated at the Protection visa stage. He explains that when he applied for Australian citizenship, the Department requested he provide certified copies of a range of documents to support his identity, which he did not have, so he asked [Mr J] to help him obtain either Iranian or Iraqi identity documents. [Mr J] told the applicant he knew someone with a similar surname in Iran who could arrange the documents, for AUD10,000 to AUD11,000. [Mr J] gave [Mr B]’s number to the applicant and when he contacted him, [Mr B] demanded 2 million toman (AUD1,000) to his account in Iran; he later paid around AUD10,000 into the same account; however, he never obtained any identity documents for the applicant.
The applicant states that he is unsure why [Mr B] told the Departmental officers at Post he is his father; that he had completed military training; and he held a shenasnameh. However, he thinks it is possible, having known he needed identity documents, [Mr B] tried to help him by providing misleading information. The applicant goes on to state he tried contacting [Mr B] several times after he received the letter from the Department (in respect of his Australian citizenship application), but to no avail.
The applicant states further that he provided incorrect information in his response (dated 29 March 2018) to the Department’s letter issued on 25 January 2018 in respect to his Australian citizenship application on this matter, to which he was regretful (although he fails to explain why). Specifically, he said the account he provided in paragraphs 15 to 29 of the 29 March 2018 statutory declaration is not correct.
In his response to the NOICC, the applicant also addressed some of the other concerns raised in the NOICC, for example about his religion, addressed where relevant below.
Also provided was a report from [Ms K], Mental Health Social worker from [Organisation 1] dated 17 February 2020. In it, [Ms K] states that the applicant has been undertaking fortnightly to three weekly trauma focused counselling sessions since 21 November 2017, and that he told her he was born in Iran to Iraqi refugees and is a Faili Kurd, among other things.
Decision to cancel
On 9 February 2021, the delegate decided to cancel the applicant’s Protection visa. In the decision record, the delegate noted the matters set out in the NOICC, and the applicant’s response, but ultimately did not accept his evidence. The delegate stated they were satisfied the applicant provided incorrect information in his Protection visa application and statement of claims as detailed in the NOICC (and set out earlier) about being stateless and other related matters. The delegate gave weight to the information the Post received from [Mr B] in Iran over the applicant’s explanations as to his relationship with [Mr B]. Ultimately, they were satisfied the grounds for cancellation of the visa under s 109 were established.
Having found the grounds for cancellation existed, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in response to the NOICC (and supporting documents) but stated that, having weighed up all the relevant factors, they were satisfied that the grounds for cancellation outweighed the reasons not to cancel the visa.
Review of the cancellation decision
In support of the review application the representative provided to the Tribunal a written submission[3], a statutory declaration from the applicant dated 8 September 2022, a Psychological and Neuropsychological assessment report from [Ms A], Clinical Psychologist dated 7 September 2022, and a letter from [Dr L], Consultant Psychiatrist at [named] Mental Health, dated 2 September 2022.
[3] Dated 11 September 2022
In his statutory declaration to the Tribunal the applicant confirmed his background, family situation and experiences in Iran as a stateless Kurd, along similar lines to what he had told the Department at the Protection visa application stage, with the exception of his brother. He states he is not an Iranian citizen, but stateless.
To explain why an individual called [Mr B] told officers at the Iranian Post that the applicant was his son (and an Iranian citizen, who held a shenasnameh and had undertaken compulsory military service), the representative said in her submission that the applicant instructs as follows. He tried to obtain ID documents through a contact in Iran, and that contact used the particular information he had provided in order to obtain ID documents to claim he was the applicant’s father, and the applicant was an Iranian citizen. The representative argues that the applicant has provided a credible explanation for the person claiming to be his father having had access to some of his personal information and for his transfers of money to him.
At hearing the applicant was adamant that although born in Iran he was stateless and he never obtained Iranian citizenship, nor did his parents (who were born in Iraq but expelled to Iran under Saddam Hussein’s regime), his sister [Ms G], or his brother, [Mr C]. In Iran he had a Green Card for some time, and when he started working as a [Occupation 1], he obtained a fake Iranian drivers’ license, both of which were confiscated by traffic police at a checkpoint around a year (or less) before he left Iran in 2010. He departed Iran holding an Iranian passport that was in his name and DOB, but he is unsure if it was genuine as he paid a smuggler money to obtain it. He said he has never undertaken military training in Iran (or elsewhere).
The applicant said around the time he applied for Australian citizenship he was asked by the Department to provide identity documents. He then spoke to a contact in Australia who put him in touch with a man in Iran to help obtain them: that is, fake Iranian identity documents, as he was (and is) stateless (he could not remember either persons’ name). The applicant said he spoke to the contact in Iran a few times who agreed to provide him with a shenasnameh for around AUD11,000. The applicant paid him half that amount, then at a later stage transferred some more money, but was never provided any documents and thereafter was unable to contact him despite repeated attempts (or the person who put him in touch with him in the first place, who he believes left Australia shortly thereafter).
The applicant had given details about his family members, among other things, to this contact in Iran. Although he cannot remember his name, he thinks it was the person who was contacted by an officer from the Iranian Post who claimed to be his father. However, he is not. The applicant said his father’s name is [Mr E]. He said his father was abusive and violent toward him growing up, particularly after his mother died when he was around [age] (in a bomb blast) and his father remarried. The applicant, when still young, moved and lived with his maternal grandmother in Iran, along with his brother, to escape his father and stepmother. Sometime later he heard from neighbours that his father and sister had been deported, most likely to Iraq. He has not heard from them since.
The applicant clarified that he contacted the person in Iran to try and obtain Iranian identity documents, not the other way around as indicated in his March 2018 statutory declaration. When asked why he stated as such in this declaration, the applicant appeared confused about the question and did not respond to that question.
The applicant acknowledged he failed to declare the existence of his brother when he applied for protection, mainly because he had hoped to try and bring him to Australia and did not want the Iranian authorities to know, or for any attention to be drawn to him, as he was fearful, he may be deported (to Iraq) as father and sister were. The applicant said he had some phone contact with his brother after he arrived in Australia. Then one day whilst at work with [Employer 1] in Adelaide (he cannot remember when exactly) he received a phone call from an Iranian police officer who told him his brother had been shot and killed. The applicant said the police officer had found his phone number in his brother’s phone and called him. Apart from saying his brother had been shot and killed, the police officer did not provide any other details. He asked the applicant if he was returning to Iran, to which he replied ‘no’.
Findings with respect to the alleged non-compliance

The Tribunal has considered the information contained in the NOICC, the applicant’s response to the NOICC, the applicant’s statutory declaration and oral evidence to the Tribunal, the representative’s submissions, and other relevant evidence before it to assess whether the grounds for cancelling the visa are made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[4]
[4] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s 116, the Court’s comments are equally applicable to s 109 cancellation, as in this case.
In her written submission to the Tribunal the representative refers to Zhao, submitting that the onus of establishing the facts of the case is on the Minister (or the Tribunal on review). Reference is also made to the principles set out in the case of Briginshaw[5] to the effect that in deciding whether the ground for cancellation is made out it is necessary to bear in mind the nature of the allegations and the gravity of the consequences. She contends in the applicant’s case there are profound consequences including him being stripped of his Australian permanent residency status and making him liable to being indefinitely detained in a locked immigration detention facility, which may cause significant mental and physical harm, and/or being forcibly returned to Iran or Iraq where he fears serious human rights abuses (in breach of Australia’s international non-refoulement obligations).
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
Additionally, the representative contends the delegate has not established that the applicant provided false information regarding his lack of Iranian citizenship, his Kurdish ethnicity or the fact he is stateless. He has provided a credible explanation for the person claiming to be his father having had access to some of his personal information and for his transfers of money to him, she argues. Further, the information provided by him does not negate the information he provided at the Protection visa stage, and therefore the grounds for cancellation do not arise.
At issue is whether the applicant was stateless at the time he applied for protection, and depending on the answer to that question, whether he provided incorrect information in his Protection visa application in key respects.
As noted, the delegate held several concerns about the applicant’s claimed lack of citizenship status (and that of his parents, and sister) which, when considered cumulatively, led the delegate to conclude the applicant was an Iranian citizen. It appears the main basis upon which the delegate reached this conclusion was due to advice from the Post in Iran that they had spoken with an individual from his home area – [Mr B] – who claimed to be the applicant’s father; confirmed the applicant (and his siblings) was an Iranian citizen; that they all held Iranian birth certificates (shenasnameh); and that the applicant sent him money. The applicant insists [Mr B] is not his father, but someone he was put in contact in Iran (via a contact in Australia) in an effort to fraudulently obtain Iranian identity documents to support his application for Australian citizenship. Nothing eventuated, despite him paying the contact some monies, which explains the financial transaction records. This contact in Iran held the applicant and his family’s details because the applicant had provided them to him for this purpose. In response to the NOICC, the applicant said he does not know why [Mr B] lied when contacted by staff from the Iranian Post, but presumes it was to keep up the façade, knowing he was trying to obtain Iranian identity documents, and therefore provided misleading information when asked.
Although of some concern, having heard the applicant’s evidence on this matter, the Tribunal accepts his explanation provided about why a person in Iran would claim to be his father, and who held details about his family. It is plausible when contacted by Departmental officials this person, who had been engaged (and partly paid) to help the applicant obtain fake Iranian identity documents claiming to be his father, that he maintained that lie. [Mr B] knew details of the applicant’s family members – some of which were accurate – because the applicant had earlier given him those details in order to obtain the (fake) identity documents. Even though the applicant could not remember [Mr B]’s name at hearing, his account of how (and why) he engaged someone to obtain Iranian identity documents following his Australian citizenship application accords with his response to the NOICC. The Tribunal notes generally the applicant struggled at hearing to remember details and sequences of events related to several matters. Nonetheless, based on the medical evidence provided, including the oral evidence of [Ms A] (discussed in more detail below), the Tribunal accepts this can be attributed to his cognitive deficits, mental health challenges and related memory issues (which preceded the NOICC and the Department’s January 2018 natural justice letter first alerting him to potential issues about his claimed citizenship status), not an attempt to mislead or be evasive.
The Tribunal notes the fact that the applicant did not admit he had contacted someone in Iran to help obtain Iranian identity documents in response to the Department’s letter seeking his comments on these matters in his March 2018 response, instead saying the person contacted him, casts doubt to some extent on his current claims and evidence. At hearing the Tribunal asked the applicant why he responded in that way, and if anyone helped him with the response at that time, but he appeared confused and did not offer any coherent answer, even after the Tribunal reframed the question. Nonetheless the Tribunal notes in response to the NOICC the applicant acknowledged that parts of the March 2018 response were incorrect (which he confirmed at hearing), and the Tribunal is of the view at the time he was likely trying to hide the fact that he had tried to fraudulently obtain Iranian identity documents to support his Australian citizenship application.
Further, the Tribunal notes from information contained on the Department’s file in relation to the cancellation matter, it appears the information gleaned from [Mr B] was conveyed via a telephone call between him and Departmental officials at the Tehran Post on 26 July 2017. There is no indication that the officials met [Mr B] in person, or that he has provided copies of his own identity, such as a shenasnameh, as evidence of his familial relationship with the applicant (and his siblings), apart from his own assertions of such. Whilst [Mr B] told the officials he and all his family (including the applicant) held a shenasnameh, there is no indication he has provided evidence of such, beyond his assertions in one telephone call in mid-2017.
Accordingly, the Tribunal accepts that [Mr B] is not the applicant’s father, but someone from his home area in Iran whom he engaged to try and obtain fake Iranian identity documents in support of his Australian citizenship application. [Mr B]’s advice to the Post and evidence of financial transfers from the applicant to him can be explained by this. It follows that the Tribunal also does not accept [Mr B]’s claims that the applicant completed compulsory military service, is an Iranian citizen, and holds a shenasnameh.
The Tribunal notes in the delegate’s cancellation decision record they gave weight to the information from [Mr B] and did not accept the explanation proffered by the applicant about why he holds the applicant’s family’s details and has received money from him. Additionally, the delegate states there are legal documents evidencing the applicant’s Iranian citizenship, namely his shenasnameh and driver’s license. For the reasons above the Tribunal does not accept [Mr B]’s claims that the applicant is an Iranian citizen and has a shenasnameh. It is unclear why the delegate refers to the applicant having an Iranian driver’s license. The applicant has claimed – since the time he applied for protection – that he held a fake Iranian driver’s license when he worked as a [Occupation 1] in Iran, which was confiscated by the authorities shortly before he left Iran. The Tribunal accepts his evidence in this regard.
The other concerns articulated in the NOICC that led to the delegate concluding the applicant had provide incorrect information at the Protection visa stage about his alleged statelessness (as set out earlier) are not, in the Tribunal’s view, so great as to lead the Tribunal to not accept his claimed statelessness to the requisite level of satisfaction as required by Zhao. Some of the concerns appear to revisit the reasoning of the delegate who found the applicant was owed protection in 2011, for example about whether or not he was Sunni (not Shia like most Faili Kurds), as claimed. The Tribunal has nonetheless addressed each concern listed in the NOICC, as follows.
Identity documents: With respect to the applicant’s evidence that he possessed a Green Card up until two months prior to the entry interview (in October 2010) being inconsistent with country information that Green Cards were replaced by White Cards in Iran in 2002, in his response to the NOICC (and reiterated at hearing) the applicant explains as follows. He said those expelled from Iraq were given White Cards around the time Saddam Hussein was overthrown (in Iranian calendar 1381/Gregorian calendar 2003), however, he was never issued a White Card and kept his Green Card (which had expired) up until it was confiscated by the Iranian authorities, along with his fake Iranian driver’s license, sometime before he left the country. Given the passage of time and his poor memory, the applicant is unsure if he explained as such clearly in his interviews with Departmental officials and also speculated there may have been some miscommunication.
The applicant’s evidence in this respect was consistent with his statements contained in his 29 March 2018 statutory declaration that he recalls having a Green Card when young, which was renewed every few years, but he did not seek to renew it after his father was arrested. He states that he believes around this time Green Cards no longer existed, and the authorities issued White Cards to those who had been expelled from Iraq. He added that when he was stopped at a police officer check shortly before he left the country, they confiscated his driver’s license (which was fake) and his Green Card which had expired. The Tribunal notes according to the record of the RSA decision (made in 2011, before the NOICC and the Department’s letter of 25 January 2018 alerting the applicant to concerns about his alleged statelessness) the applicant had advised as such: that he did not renew his Green Card after his father was deported, afraid the same thing might happen to him, and that this card was confiscated by the authorities before he left. Therefore, apart from his evidence at his entry interview - that he held a Green Card until it was confiscated sometime in 2010 – it appears the applicant has given generally consistent evidence about this issue: in particular that he was afraid to obtain a White Card when they became available so held onto his Green Card, which had expired and therefore was kept by the authorities when they checked his driver’s license in 2010. Given the applicant’s challenges with language and communication (discussed further below) the Tribunal considers it plausible his entry interview record of this discussion may have been misinterpreted, or the applicant simply failed to clearly explain that his Green Card had expired (and related matters) at the time. On its own or in combination with other information, this does not cause the Tribunal significant concern about the applicant’s claimed statelessness at the time he applied for protection (and related claims).
Departure from Iran: In his response to the NOICC the applicant did not directly address the delegate’s concern about his evidence that he left Iran on a fake Iranian passport (arranged by a people smuggler) lacking credibility because country information indicates Iran has very strict procedures to depart airports. At hearing the applicant said at the time the customs official looked at his passport when he was departing (Tehran airport) and asked if he knew a famous wrestler from his area, then let him through. It has been submitted that procedures were less strict then.
The Tribunal notes the country information relied on by the delegate in the NOICC (and in their decision record) was contained in the most recent country information report on Iran issued by DFAT on 14 April 2020, ten years after the applicant had left Iran, allegedly on a fake Iranian passport. In their report, DFAT comment on the sophisticated features contained in Iranian identity documents which make them hard to manufacture, and Iran’s sophisticated border control procedures, leading DFAT to assess the likelihood of an individual exiting Imam Khomeini International airport on a fraudulent passport is extremely low[6].
[6] DFAT Country Information Report, Iran 14 April 2020 at 5.45
Country information contemporaneous with when the applicant left Iran in 2010 also indicates that leaving Iran illegally through an airport is difficult due to thorough security checks, noting a new passport application system was instituted in Iran in March 2005. A report from the Danish Immigration Service in 2009 states that although counterfeit Iranian passports were widely available in the black market, local authorities were generally adept at identifying these documents via a ‘double check’ mechanism in the law enforcement database which tracks passport issuance[7]. However, reports also indicate that bribery was widespread in Iran. In the same 2009 report from the Danish Immigration Service they state that bribery of airport personnel may be possible but would involve many staff members as there are several checkpoints at the airport.[8] A 2008 article by the Guardian (UK), reported on the ‘roaring trade in illegal passports’ in Iran.[9] Based on such country information the Tribunal considers it was possible the applicant departed Iran on a fraudulently obtained Iranian passport as he has consistently claimed.
[7] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April, p. 36‐7; and Immigration and Refugee Board of Canada 2006, IRN101054.E: Iran: The passport; its features and procedures for application including whether an applicant who was refused a passport would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passports to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey, and Azerbaijan overland, and Oman and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004 ‐ February 2006), 3 April,
[8] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April, p. 36‐7.
[9] Cist, M. 2008 ‘Getting out of Iran’ Guardian (UK), 7 October >
Religion: With respect to the fact that most Faili Kurds are Shias, not Sunnis, as the applicant has claimed to be, in his response to the NOICC (and at hearing) the applicant explains that his father was Shia, and his mother Sunni. When his mother died, and his father remarried he and his younger brother moved to live with his maternal grandmother and took on her Sunni religion. The delegate found this explanation lacked credibility as it is custom for children to adopt their father’s religion. Whilst that may be the case in many instances, it does not mean in some cases children do not take on their mother’s religion, particularly if brought up by their maternal relatives in circumstances similar to the applicant’s: that is where his father and stepmother were abusive, and he wanted to have nothing to do with him.
Furthermore, the Tribunal notes that whilst country information indicates the majority of Faili Kurds are Shia, not all are[10], and it is plausible the applicant was Sunni Muslim as he has consistently claimed. Even if he had lied about being Sunni, it does not necessarily follow that he provided incorrect information about being stateless, as the delegate seems to have made the conceptional jump in the decision record that if he is Shia, he is therefore an Iranian citizen, particularly given many Faili Kurds are Shia and stateless.
[10] DFAT Country Information Report: Iran (14 April 2020) at 3.23 and 3.27
Language: As noted, in the NOICC (and the cancellation decision), the delegate was of the view the applicant was attempting to conceal his Iranian citizenship by attributing some inconsistencies in information he has provided to language difficulties. Specifically, the delegate notes that he provided inconsistent information about what languages he can speak as follows: at his entry interview in December 2010 (where a Persian/Farsi interpreter was used as the applicant purportedly claimed he spoke Farsi fluently); at his RSA interview in January 2011 (where he purportedly said he is only able to understand Kurdish dialect, and speaks Persian and Arabic); speaking Persian/Farsi in all interviews and with his representative; yet claiming not to be fluent in Farsi (Persian) and saying he can speak Arabic and Kurdish in a submission provided when asked to comment on some adverse information.
In response to the NOICC the applicant disputes that he ever said he was fluent in Farsi and notes he has problems with interpreters and communication generally.
For the Tribunal hearing the applicant (via his representative) requested an interpreter who can speak Kurdish, Arabic and Persian. At hearing the applicant explained that his parents, who were born in Iraq, spoke Arabic, his grandmother (who he lived with) spoke Kurdish, Arabic and Persian, and growing up in Iran he also spoke Persian. He said as he only went to school for around five years at night he did not learn to read or write properly in any language. He has taught himself English in Australia and obtained his job as a [Occupation 1] with a lot of support from his boss here (the hearing proceeded mainly in English). In her written and oral evidence to the Tribunal, [Ms A] spoke of the applicant’s communication and language difficulties, indicating he has some cognitive deficits likely from birth, that have been exacerbated by various traumatic events and stresses. She indicates that he was assessed as such before the NOICC, as evidenced by the letter from the Counsellor at [Organisation 1] provided to the Department who confirms the applicant was self-referred in November 2017 for regular refugee related trauma focused counselling. The reports from [Organisation 1] and [Ms A] (as well as her oral evidence) accords with someone with very limited schooling and language and communication difficulties.

For these reasons the Tribunal accepts the applicant had limited schooling, is barely literate in any language, and speaks some Kurdish, Arabic and Persian, and more recently English as indicated at the hearing. The Tribunal considers past confusion about his language proficiency can be attributed to his language and cognitive difficulties, confusion as a result (and due to mental health challenges), possibly combined with problems with interpretation, not a deliberate strategy on behalf of the applicant to mislead the Department about his language proficiency, and in turn his citizenship status (or lack thereof).
For these reasons, the Tribunal accepts the applicant, although born in Iran, was born to Iraqi refugee parents and was stateless, including at the time he applied for protection. It accepts his parents, and sister were also stateless. It does not accept he undertook compulsory military training. It accepts he held a Green Card in the past but did not avail himself of a White Card when they started to be issued by the Iranian authorities, from around 2003. It accepts he does not and did not ever hold a shenasnameh. The Tribunal also accepts the applicant’s account of the difficulties he faced growing up as a stateless Faili Kurd in Iran and reasons for leaving the country made at the Protection visa stage. The Tribunal therefore is not satisfied the applicant provided incorrect information in these respects in his Protection visa application, and in his 30 January 2011 statement of claims[11].
[11] In answers to questions 6 of Form 866B; and in answer to questions 20, 22, 23, and 42 – 46 (inclusive) of Form 866C.
In response to the NOICC and before the Tribunal, the applicant has acknowledged that he failed to list his brother in the Protection visa application. Accordingly, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice as the applicant failed to include his brother as part of his family in answer to question 9 in Part 866B, which asked that he list any family members of the same family unit not in Australia at the time of application.
Should the visa be cancelled?
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).
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, as follows.
The correct information: Was that the applicant had a brother when he applied for protection, who was living in Iran at that time.
The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).
Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information or a bogus document: The delegate at the Protection visa stage accepted the applicant was stateless (and related claims), and found he was owed protection on that basis: that information the Tribunal accepts was correct then and now. If the correct information that the applicant had a brother had been known at the time, the Tribunal does not consider this would have altered the outcome.
The Tribunal is therefore satisfied that the decision to grant the applicant a Protection visa in 2011 was not based, wholly or partly, on incorrect information or a bogus document. The Tribunal gives this factor significant weight towards the visa not being cancelled.
The circumstances in which the non-compliance occurred: The applicant claims he failed to mention his brother existed at the Protection visa stage because he had hoped to help him escape Iran (as he had). He was afraid if he mentioned him the Iranian authorities may somehow come to know. The Tribunal is willing to accept his explanation in this regard, particularly given there does not appear to have been a clear incentive in omitting to advise the Department of his brother at the Protection visa stage. Nonetheless, he did provide incorrect information in this respect and the Tribunal gives this factor some weight towards cancelling the applicant’s visa.
The present circumstances of the visa holder: Are that the applicant has been resident in Australia for around 12 years. Presently he lives alone in a house he owns in Melbourne. He worked full time as a [Occupation 1] up until his visa was cancelled. In her evidence to the Tribunal [Ms A] said the applicant’s former employer has been very supportive and is willing to give the applicant his job back if the visa is not cancelled. The applicant told the Tribunal he has some friends here, but no relatives.
There is evidence before the Tribunal that the applicant experiences chronic, and at times serious mental health problems, and cognitive challenges more generally. In her written report and oral evidence to the Tribunal, [Ms A], as his treating psychologist (for around the past two years) states that the applicant presents as highly anxious, has had severe depression, and has difficulty coping with everyday stressors. She said his memory skills are very poor, his executive functioning very low, and he has poor problem-solving skills and difficulty concentrating. At hearing she told the Tribunal it appears his cognitive functioning has been low his entire life – possibly with a mild to moderate intellectual disability, not helped by many exacerbating factors, including high stress. She said he has overdosed a couple of times recently, and it is unclear if this caused hypoxia to his brain. [Ms A] said the applicant’s past stresses have included trauma within his family, being stateless, the journey to Australia and being detained on Christmas Island. She added that his confusion and difficulty telling his story in a coherent fashion is typical of someone experiencing post-traumatic stress disorder (PTSD) symptoms. The Tribunal notes such confusion was apparent during the hearing at times.
In a letter from a consultant psychiatrist from [named] Mental Health provided to the Tribunal, the psychiatrist notes the applicant’s depressive symptoms and suicidal risk, advising that he attempted suicide in February and April 2021. [Ms A] explained to the Tribunal that because the applicant’s suicide attempts involved his prescribed medications, the amount he was prescribed was subsequently reduced, requiring him to regularly obtain more medicines, but due to his memory and other problems he kept forgetting to do so. Therefore, presently he does not take any anti-depressant or anti-psychotic medications and is only taking some painkillers following a back operation around a month prior to the hearing.
[Ms A] told the Tribunal the applicant’s mental health stabilised after he obtained employment as a [Occupation 1] in Australia, with a very supportive boss. A friend also helped him obtain a mortgage on his own home, where he lives in peace (after some stressful share house experiences). However, the applicant’s mental health has deteriorated since his visa was cancelled and he has been unable to work. She feels he has reverted to that feeling of being stateless again, with his past trauma being brought back, and feelings of instability and an uncertain future. It was in this context that he overdosed, and has struggled to trust people again, and engage, [Ms A] said.
Based on the medical evidence before it, including [Ms A]’s oral evidence at hearing, the Tribunal accepts the applicant has ongoing, complex, and at times serious mental health issues including depression and symptoms of PTSD. Presently he is regularly seeing a psychologist to help manage these symptoms.
The Tribunal gives these factors, particularly the significant period of time the applicant has resided in Australia, and his at times severe mental health issues, substantial weight as reasons not to cancel the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: In response to the NOICC the applicant acknowledged he had failed to list his brother in his Protection visa application, and maintained he is (and was) stateless. For reasons above the Tribunal has accepted his evidence in this regard. Accordingly, the Tribunal is satisfied the applicant responded to the NOICC without making an incorrect statement. It gives this factor some weight towards not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal is not aware of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance: The non-compliance took place when the applicant applied for a Protection visa on 4 February 2010, which is over 12 years ago. The Tribunal considers this is a significant amount of time and gives this factor considerable weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.
Any contribution made by the visa holder to the community: In her submission to the Tribunal the representative notes the applicant added to his skills to increase his employability in Australia; obtained a [specified] licence allowing him to [undertake specified task], a [specified] licence and a white card, and that prior to the cancellation of his visa, he was able to earn enough through his employment to take out a mortgage and purchase a house, thereby contributing to the economy and, consequently, the community. The Tribunal accepts the applicant has worked in Australia and taken out a mortgage to own his own home, which are significant achievements given his cognitive and mental health challenges as noted earlier. It gives these factors some, albeit limited weight toward not cancelling the visa.
Other factors: Departmental guidelines
While these factors in reg 2.41 of the Regulations 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 government policy,[12] considered below.
[12] PAM3 ‘General visa cancellation powers.
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140: There are no consequential cancellations in this case.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[13]
Australia’s non-refoulement obligations
[13] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).
The representative in her submission to the Tribunal submits that the applicant is very fearful of returning to Iran because he fears that he will once again experience the constant threat of deportation and the hardship of life as an undocumented Kurd that characterised his life of suffering before he left.
The Tribunal notes that due to recent amendments to s 197C of the Act which now provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal, it is not necessary for the Tribunal to make findings about those matters in the context of this part of this cancellation decision. The effect of these amendments relevant to this case is considered below.
If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act and must be removed as soon as practicable (s 198 of the Act).
There has been a significant change to the law since the delegate’s decision. Amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In this case the applicant made a valid application for a Protection visa on 9 November 2011 and that application was finally determined when a delegate made a ‘protection finding’ in the Protection visa decision record on 16 November 2011. In these circumstances, s 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the Protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non‑citizen requests removal.
There is no indication that the decision to grant the applicant a Protection visa has been quashed or set aside, nor has the applicant requested removal from Australia. Additionally, there is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s Protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
In such a scenario cancellation may lead to prolonged detention in the applicant’s case. The Tribunal gives this factor significant weight towards not cancelling the visa, particularly taking into account his serious mental health issues and related vulnerabilities, as noted earlier and supported by contemporaneous medical evidence.
Mandatory legal consequences to a cancellation decision: If the visa remains cancelled and the applicant exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen and may be detained under s 189 of the Act. He is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for him (on 16 November 2011), the Act does not require or authorise his removal as per the recent amendments: s 197C(3), as noted above. This means he may face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant him a visa under s 195A of the Act, the Minister removes the bar, and he can apply for a further Protection visa, or he acquires a right to enter and reside in another country.
As it considers the prospect of indefinite detention likely in the applicant’s case, the Tribunal gives this factor significant weight against cancelling the applicant’s visa. Particularly given his serious mental health challenges.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): It is submitted the degree of hardship that would be caused to the applicant if his visa remains cancelled would be extreme due to:
·The applicant facing the prospect of indefinite detention with all its consequent harms in terms of deprivation of liberty and adverse impacts on his psychological and physical health;
·His already fragile mental health will deteriorate even further with a real risk of him attempting suicide, noting the report provided by [Dr L] ([named] Mental Health); and
·The applicant’s memory and cognitive functioning deficits, as outlined by [Ms A] in her report, will make it extraordinarily difficult for the applicant to survive without the support currently provided in the community, which would not be available to him in detention or if forced to return to Iran.
The Tribunal has had regard to these submissions and the applicant’s oral and written evidence (as well as the oral and written evidence provided from his treating psychologist) when considering the level of possible hardship that may be caused to the applicant if the visa is cancelled. Having lived in Australia for over 12 years it is likely to be very difficult for the applicant to leave and readjust to life in Iran, with no family or other support there, and a lack of citizenship status. He would be returning to a country where his mother and brother were killed in traumatic circumstances. His mental health problems are multiple and at times serious, and combined with cognitive deficits, he is easily stressed with day-to-day life.
Having regard to these considerations the Tribunal accepts the cancellation of the applicant’s visa resulting in his detention or return to Iran is likely to cause the applicant severe hardship, and a likely deterioration of his mental health. Accordingly, the Tribunal gives these considerations significant weight towards not cancelling the visa.
Exercise of discretion
The Tribunal has carefully considered the above factors, some of which are in favour of cancelling the visa, others against. The Tribunal has found the applicant provided incorrect information at the Protection visa stage when he failed to declare his brother, although it also found this information, if known, would not have necessarily altered the outcome.
Weighed against this (and other considerations) are the Tribunal’s findings that the applicant could face significant difficulties and hardship on return to Iran – where he has no family or support - and a likely deterioration of his fragile mental health. He has been in Australia for a significant period of time and despite challenges, has managed to find employment and purchase a house, which helped stabilise his mental health.
Additionally, prolonged detention may occur in the applicant’s case if his visa remains cancelled. This is of particular concern, given his mental health issues and related vulnerabilities.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Member
Nicole Burns
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.

[2022] AATA 4547

4 October 2022

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