2203635 (Migration)

[2022] AATA 3112

2203635 (Migration) [2022] AATA 3112 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203635

MEMBER:Antoinette Younes

DATE:7 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2022 at 11:40am

CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–applicant had given incorrect information – applicant’s returns to Iraqi for a lengthy period – applicant’s central fear of harm relates to his tribe, not the Iraqi authorities – no non-compliance by the applicant in the way described in the NOICC – discretionary power to cancel the applicant’s visa does not arise – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

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

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

3. The applicant appeared before the Tribunal on 22 June 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. 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.

8. 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?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101.

10. Section 101 provides:

    Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    …

    (b)  no incorrect answers are given or provided.

11. The Act does not define the term “incorrect”. However, s 100 provides that 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”.

12. Section 107A provides:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)   may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)   if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

13. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, provides a summary of the applicant’s background and events that led to the cancellation of the applicant’s visa.

14. The information before the Tribunal indicates that on [date] April 2010, the applicant arrived at Christmas Island as an undocumented Irregular Maritime Arrival (IMA) and claimed to be [Name 1] born on [Date 1][1], an Iraqi national.  On 2 August 2010, he applied for a Refugee Status Assessment (RAS) and on 15 December 2010, the Independent Merits Review (IMR) found that that the applicant was a person to whom Australia had protection obligations.  Consequently, on 9 May 2011, the applicant lodged a Protection (Subclass 866) visa application, which was granted on 11 May 2011.

    [1] During the hearing, the applicant stated that documents, such as his Iraqi passport, which he had provided show his date of birth to be [Date 2].  He said that is his correct date of birth.

15. As part of the protection visa application, the applicant provided a Part C of the Form 866.  In responses to questions 1, 2, 7, 13, 19, 41 and 42 of Part C of Form 866, the applicant gave his full name as [Alias of Name 1], and stated that he has not been known by any other name, that his date of birth is [Date 2], that he is [age] years old, that he is does not believe in any religion, that he is an Iraqi national, and that he is seeking protection so that he does not have to return to Iraq. The applicant did not provide answers to question 3, 4, 20 and 23, which ask about the applicant’s name in his own “ethnic script or characters”, other ways of spelling or writing his name, his current citizenship (if different to at birth), and whether he is stateless.  In response to question 42 asking about why he left his country, the applicant referred to his attached statement.

16. In that statement the applicant made the following claims:

    My parents are Muslim background, my father is Shi'a and my mother is Sunni. I never believed or followed a particular faith...

    …I assumed my father would be comfortable with my changing of religion and intended to tell my father later, that I also wanted to marry a Christian girl, [Ms A. My father had never openly practised Islam so assumed he would not care or object.

    When I told my father of my intention to convert, my parents were horrified, they did not want me to be in the house, they stated that I was bringing shame to the family and the tribe ... I feared he may have my girlfriend killed ... the family would seek to have me killed or a member of the tribe would have.

    If I go back then the tribe which is very large and part of the Tamim will ensure that I am killed…The Al Kanaani Tribe…I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity…The Government would not protect me as they are against any conversion to Christianity as it is Islam Government. The Government have religious militia in order to stop any such behaviour.

17. On 24 July 2010, the applicant signed the declaration at question 65 of the Form 866C, namely that “…I [Name 1], [do] solemnly declare: The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail."

    Events subsequent to the visa grant

18. Subsequent to the protection visa grant, the applicant departed Australia on [date] February 2012 on his Australian Titre de Voyage no. [deleted].  According to his Outgoing Passenger Card, he indicated that the country in which he would be spending most time abroad was Iraq, and that his main reason for travelling overseas was to visit friends or relatives.  The applicant returned to Australia on [date] February 2013 on the above Australian Titre de Voyage, which was stamped, confirming that he had entered Iraq on [date] February 2012 and departed on [date] February 2013.

19. The applicant departed Australia again on [date] November 2013 on his Australian Titre de [Voyage].  According to his Outgoing Passenger Card, the country in which he would spend most time abroad was Iraq, and his main reason for overseas travel was to visit friends or relatives.  He returned to Australia [in] August 2014 on his Australian Titre de Voyage [and] according to his Incoming Passenger Card, the country in which he boarded the [flight] (to return to Australia) was Iraq. 

20. When interviewed by a Departmental officer at Melbourne Airport on [date] August 2014, the applicant indicated that he returned to Iraq to [do a precedure] and to marry his girlfriend, but she refused.  He indicated that he was in Iraq for 9 months, and that he returned to Australia to have a scar at the back of his head checked by doctors as he did not accept the opinion of the Iraqi doctor that the scar could be cancer.  He had an Iraqi passport number [DELETED] in his baggage, which was photocopied. The Iraqi passport number [DELETED] is in the name [Name 2], born [Date 2], Iraqi nationality, mother's name [deleted], issued in Baghdad [in] 2012 and expiring [in] 2020.

21. The Iraqi passport number [DELETED] contained departure and arrival stamps, an [Country 1]ian visa no. [valid] for single entry on [date] November to [date] December 2012, an Iraqi departure stamp for[date] November 2012, Iraqi entry stamps for [date] November 2012 and [date] November 2013, an [Country 1]ian visa no. [deleted] valid for single entry from [date] March to [date] June 2014, an Iraqi departure stamp for[date] April 2014 and [date] August 2014, an entry stamp for [date] April 2014, and [Country 1]ian entry and exit stamps.  

22. The delegate referred to country information and concluded that the Iraqi passport number [DELETED] is genuine:

    because in order to obtain it he would have had to have provided the Iraqi authorities with a range of supporting documents such as his birth certificate, Iraqi identity card and his Iraqi citizenship certificate; and because he has used that passport to apply for visas for [Country 1] and because the visa holder has travelled to and from Iraq and [Country 1] on that passport…The visa holder’s Iraqi passport [DELETED] would have been checked by Iraqi officials both on his returns to and exits from Iraq. On the visa holder’s returns Iraqi officials would have registered the passport number and the name and date of birth of the bearer. On his exits from Iraq, Iraqi officials would have checked that the visa holder had the appropriate entry visas for his intended destinations… The visa holder has returned to Iraq twice in his true identity of [Name 2] born [Date 2] without significant issue and there has been no apparent change in his circumstances or country information. This would indicate that the visa holder provided incorrect information in his protection visa application.

23. The applicant’s protection visa was cancelled on 30 October 2017 and the cancellation decision was affirmed by the Tribunal (differently constituted), essentially on the basis of lack of credibility.  The Tribunal in that cancellation decision formed the view that the applicant had fabricated his claims in relation to the harm he feared. The Tribunal found that the applicant had provided incorrect information and that his reasons for returning to Iraq on two separate occasions for extended periods of time were not persuasive. The Tribunal found that the applicant’s voluntary travels to Iraq indicated that the applicant did not have a subjective fear of harm for reasons of his claimed Christian conversion.

    Subclass 155 visa – Notice of Intention to Consider Cancellation and response

24. On 26 October 2020, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC/Notice) to which the applicant responded on 2, 5, 10 and 18 November 2020. The Notice referred to, among other things, the requirements of s 101 and to the information summarised above, indicating that there had been non-compliance with that provision.

25. In the submissions dated 18 November 2020 and in response to the Notice, the representative provided an analysis of the delegate’s decision record and contended that it is debatable as to whether on the basis of the applicant’s returns to Iraqi for a lengthy period the delegate understood “the core of the issue” and the applicant’s explanations. The representative argued that the applicant came to Australia seeking protection from fear of being harmed by his family who rejected and ostracised him as he had brought shame on to the family and the family’s tribe.  The applicant escaped from his family and tribe in fear of harm that he could be killed.

26. The applicant provided documents in support, such as payslips from [a company], photographs reflecting the [procedure] he undertook in [Country 1], progress notes regarding medical treatment in Iraq and Australia, and an English translation of a rental contract for a property in Erbil, Iraq, dated 11 February 2012, which lists the applicant as the tenant. It refers to the period of tenancy from 11 February 2012 until 11 August 2012. The applicant also provided a second English translation of a rental contract for a property in Erbil, Iraq, dated 12 November 2013 and refers to the applicant as the tenant under the identity of [Alias of Name 1]. It states the period of tenancy from 12 November 2013 until 12 May 2014. The original untranslated copy of both rental contracts has also been provided.

    Material provided to the Tribunal

27. In a statement dated 14 June 2022, the applicant noted that:

    ·In Christmas Island, he gave his name to the case officer in the presence of an interpreter. His full name is [Name 1], and he used that full name when he signed the statutory declaration. His date of birth is [Date 2] in [Iraq]. On page 7 of the Form 866B he gave his father’s name, his grandfather’s name, and his family name as [name], missing [Name 3], although he gave the case officer his grandfather’s name at the case officer’s request.

    ·He arrived on Christmas Island on [date] April 2010 and signed the application for a protection visa on 24 July 2010. The Department mistakenly referred to his date of arrival as being [date] October 2010.  On 9 May 2011, he was granted a protection visa, which was cancelled, with the AAT affirming the cancellation decision.

    ·He applied for the Subclass 155 visa on 1 October 2016, and he was granted the visa on 9 February 2018. He travelled to [Country 1] in 2018 where he stayed for three months. He stayed at his friend’s home. His friend is an Australian citizen who lives in Australia and his family is living in [Country 1]. His friend has an apartment in [city in Country 1].

    ·He visited [Country 1] on several occasions for medical reasons. When he had the protection visa, he used the Iraqi passport to enter [Country 1] because it was easy for him to get the visa with the Iraqi passport rather than use the Australian travel document. He travelled to [Country 2] in 2019 as a tourist.

    ·In February 2012 during his first trip to Iraq with his Australian travel document, he went to Erbil in North Iraq where he stayed for a year to see his girlfriend [Ms A]. He stayed in [Apartments]. While he was in Erbil, he applied for an Iraqi passport, which he received on [date] March 2012, issued in Baghdad. An Iraqi citizen assisted him in applying for the passport. He had mentioned his friend’s name when he was in Christmas Island.  During his first interview with the Department, he told the case officer that [Mr B] had helped him escape from Baghdad to [Country 2]. During this trip, he saw his girlfriend [Ms A] every three days. [Ms A] lived [in] Erbil.

    ·His second trip to Iraq was in 2013, and when he landed at Baghdad airport, he took a taxi and went directly to Erbil where he stayed at [a location]. He went to see [Ms A] to convince her family about their marriage. He had problems with her family because they said that they had intended to leave Iraq for [Country 3]. The other problem was the government’s decision relating to unlawful arrivals in Australia, requiring such people to obtain Australian citizenship before being able to sponsor their partner. When he was departing Australia at the airport, an immigration officer asked him why he was going to Iraq and he told him he was going to marry his girlfriend. When he landed at Baghdad airport, he tried to take a plane to Erbil but due to delays, he decided to go there by taxi from the airport. He stayed in Erbil for nine months and on his return to Australia, at the airport, he was questioned about his trip. At the time, he held a protection visa. He told the officer that he was in Erbil to see his girlfriend. The officer took his laptop and asked him for the password. He has never travelled to Iraq subsequent to the breakdown of his relationship with [Ms A].

    ·He has been in Australia since 2011 and he has not had a single problem in Australia. He is working and paying his taxes. He has only approached Centrelink for a short period of time. His destiny in Iraq would be unknown and although he does not have a problem with the Iraqi government, he has a serious problem with his clan because they discovered that he intended to change his religion.

28. During the hearing, the applicant told the Tribunal that he never declared his lack of faith publicly in Iraq.  The Tribunal asked the applicant if, prior to coming to Australia, he had converted to Christianity and he confirmed that he had not converted.  He said he believes in God but does not believe in any specific religion, and the only reason he wanted to convert to Christianity was for [Ms A] who is [a] Christian.  The applicant stated that since 2014, they stopped communicating and he does not know her whereabouts as it is all over between them.

29. The Tribunal asked the applicant about any harm he suffered prior to coming to Australia.  He said he was threatened by his father’s cousins.  He said when the issue became public, his brother told him not to return home due to the threats.  The Tribunal asked him to clarify, and he said that the issue related to his intention to convert.  He said he was not a ‘desired person’ due to his lack of religious practice.  He said when he mentioned to his father that he was intending to convert to Christianity because of [Ms A], his father was not impressed.

30. The applicant claimed that he feared returning to Iraq as his cousins would cause him serious harm.

31. In response to questions by the Tribunal about his returns to Iraq subsequent to the grant of the protection visa, raising doubts about his claims, the applicant stated that when he was on Christmas Island, he told the officials of his intention to return to Iraq to see his fiancée.  He said he told the truth and did not conceal that intention.  He said he missed his girlfriend dearly and he returned to see her.  He said the return to Australia date was postponed on various occasions.  He said when he mentioned that he was going to Iraq to see his family, he meant [Ms A] and her family.  He said in Iraq, he stayed in [an area].  He said he did not see his parents as he was disowned.  The Tribunal expressed concerns about his evidence that he did not see his parents despite being in Iraq for a considerable length of time.  He reiterated that he did not see them. 

32. The applicant gave evidence that he went to [Country 1] for [medical reasons].  He said in [Country 1] medical services are cheaper than Iraq and the doctors are better skilled.  In relation to his returns to Iraq, he said he went to [an area] and he did not intend to stay for that long.  He said there were problems with [Ms A]’s parents who changed; he said her father changed completely towards him and was trying to influence his daughter.   He said during the second trip, the laws in Australia changed in that only Australian citizens were permitted to sponsor their spouses so [Ms A]’s family were concerned that he might not be serious.  He said his father told him during a telephone call to forget the matter.  He said that after the second trip, he never returned to Iraq.

1. The applicant gave evidence that he has no direct contact with his parents.  He said, about a year ago, he spoke to his mother through his brother.  He said it was a short conversation.  The applicant stated that he cannot return to Iraq out of fear that he might be threatened.  He said he is not married because of what happened with [Ms A].  His said the breakdown of his relationship with [Ms A] impacted him severely.

2. The Tribunal discussed with the applicant that the previous AAT had concerns about his credibility, which may be taken into account.  He said the previous Member requested recent photographs of [Ms A] but he had deleted them a while earlier as they were too painful.  He said the photographs were on the laptop taken from him at the airport.  He said it was returned and he deleted the photographs about a year later.  He said he was asked for copies years later so he could not provide them.  He said when he was granted the Subclass 155 visa, he felt all had been resolved. 

3. The applicant gave evidence that he gave [Ms A]’s telephone number during the interview at Christmas Island and they tried unsuccessfully to call her several times.  He said he was told that he was believed.  He said there was a problem with connections from Christmas Island to Iraq. 

4. The Tribunal asked the applicant about [Ms A] and he gave evidence about her age, her [siblings], her Christian faith (Orthodox), her ability to speak Arabic, her studies, [and] their then plans to marry conditional on his conversion. 

5. The applicant gave evidence that he travelled overseas on other occasions (not to Iraq) as he was tired psychologically and emotionally tired.  He said his friend’s family is in [Country 1] so he went with him for a break. 

6. The applicant acknowledged that going to Iraq is a concern, but he said he never intended to break the law.

   Analysis and reasons

7. The central question before the Tribunal relates to whether there has been a breach of s 101 of the Act as identified in the NOICC.  The NOICC focussed on the applicant’s returns to Iraq as being evidence of non-compliance.  The Tribunal is of the view that generally-speaking, returning to a country in circumstances where an applicant has claimed past or future harm, could raise doubts about the claims advanced by an applicant.  However, returning without more is insufficient to conclude incorrect provision of information.  It is important not to confuse the cancellation scheme with an entire reassessment of an applicant’s protection claims.  The application for a protection visa was initially refused and was subsequently granted following the IMR’s assessment.  The IMR reviewer accepted the claims advanced by the applicant that he has incurred the wrath of his father and that his father would not hesitate in making public the claimant's intentions to convert from Islam to Christianity.  The IMR reviewer accepted the independent country information that Iraq is wracked by sectarian conflict and that suspicion of apostasy or conversion from Islam might attract severe harm from militant Muslims and that given the then civil war, state protection cannot be guaranteed anyone facing such harm.  The IMR reviewer accepted that the continuing sectarian conflict throughout Iraq makes relocation to a safe place not an option for the claimant.  Consequently, the IMR reviewer found that the applicant has a well-founded fear of persecution for reason of religion.

8. The Tribunal observes that there appears to be inconsistent information relating to the question of whether the applicant had in fact converted to Christianity.  The applicant in his statement claims “…I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity”. Subsequently, the applicant has consistently claimed that he had not converted to Christianity.  He explained the inconsistency as being due to interpreting.  During the interview with the delegate, the IMR, the previous AAT member, and during this review, the applicant has consistently said that he had not converted to Christianity.  He told the Tribunal that although he believes in God, he does not practise any specific faith.  He did not consider himself to be an atheist but was not an adherent to any specific religion.  He explained to the Tribunal that his former intention to convert to Christianity was because he wanted to marry [Ms A].

9. The Tribunal notes that the applicant did not correct this information or provide the correct information that he had not converted to Christianity in writing in accordance with s 105 of the Act. However, it is clear that in his interview with the delegate, the IMR reviewer, the former AAT member, and during this review, the applicant is consistent that he had not actually converted to Christianity but maintained he would be at risk of harm because he would be perceived as a Christian convert.  On balance, the Tribunal accepts that the applicant has not converted to Christianity and that it is possible that the claim of conversion in the statement was due to misinterpreting.  It is also possible that he had exaggerated his claims to bolster his position as an asylum seeker but that does not mean that the totality of his claims are fabricated or that he had provided incorrect information as specified in the NOICC.

10. The issue about conversion is a significant one because, among other things, it relates to the applicant’s ability to return to Iraq and any potential harm he could suffer at the hands of the Iraqi authorities and any state protection they would offer.  It is correct that the applicant used a genuine Iraqi passport, which is not disputed by the applicant and that he entered Iraq on the two occasions subsequent to the protection visa grant, in his own name.  A fair appraisal of the applicant’s claims indicates that the applicant’s central fear of harm relates to his tribe, not the Iraqi authorities, so using his own passport and name does not undermine his claimed fear of harm.  The Tribunal is satisfied that the applicant has never claimed to fear harm from the Iraqi authorities.  The Tribunal observes that the previous Tribunal acknowledged that “…the applicant has never claimed to fear harm from Iraqi authorities (only that they would not protect him from the harm he feared at the hands of the tribe) and that he claims that he only resided in Erbil and his tribe did not operate in Erbil so he did not have to face the feared harm claimed in his protection visa application that the tribe would ensure that he would be killed if he returned to Iraq, nonetheless returned to Iraq on two separate occasions for prolonged periods of time.”

11. As noted earlier, the Tribunal asked the applicant multiple questions about [Ms A] and overall, the Tribunal is satisfied that his evidence was forthcoming and did not appear to be fabricated.  He was not evasive, and he knew about her family’s composition, studies and other personal details.  The applicant has provided corroborative evidence about where he stayed when he went to Iraq on those two occasions.  There is nothing to suggest that the rental leases that the applicant provided are not authentic or contain inaccurate information.  The Tribunal therefore gives them weight as corroborative evidence.

12. The Tribunal acknowledges that the applicant never married [Ms A] despite claiming that he went to Iraq for that purpose, but he did explain her father’s change of mind towards the applicant. 

13. The applicant came to Australia as an IMA and was granted a protection visa on the basis that he feared serious harm if he returned to Iraq.  The applicant maintains that when he stated he has brought shame on the tribe who are of the Islamic faith, that they would believe he has converted to Christianity, that if he were to return to Iraq the tribe would ensure that he would be killed, and that he believes the tribe would harm or mistreat him, this information was correct at the time it was given. He denies the allegation in the NOICC that he gave incorrect information to the Department in his application for a protection visa and the accompanying statement.  He has provided explanations, including his contention, which the Tribunal accepts, that at his entry interview, he did say that he would like to return to Iraq to marry [Ms A].  This strengthens the finding that, on balance, the applicant did not provide incorrect information.  At best, it might be argued that the applicant provided inconsistent information.  It is fair to say that the IMR assessed the applicant as being credible and found that the applicant was owed protection obligations.

14. The Tribunal has considered the evidence individually and cumulatively.  The Tribunal acknowledges that the applicant’s returns to Iraq on two occasions for a considerable length of time have the potential of undermining the veracity of the claims he made when seeking Australia’s protection, as well as his credibility.  However, on balance, and for the reasons explained above, the Tribunal has not reached the level of satisfaction required to conclude that there has been breach in the manner described in the Notice.  In essence, the Tribunal has suspicions about the veracity of the claims advanced by the applicant, but on the balance of the evidence, the Tribunal is satisfied that it would be unreasonable to conclude that the applicant has provided incorrect information in the manner described.

15. For those reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the NOICC. It follows that the discretionary power to cancel the applicant’s visa does not arise. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

16. 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.

    Antoinette Younes
    Deputy President

    
    
    

    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.