2205684 (MIGRATION)

[2023] AATA 4639

2205684 (MIGRATION) [2023] AATA 4639 (19 DECEMBER 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr James Wardlaw

CASE NUMBER:  2205684

MEMBER:Jason Pennell

DATE:19 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2023 at 11.34am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa application – name, date and place of birth, citizenship, family composition and protection claims – incorrect answers conceded for family composition and history – father and brother not killed as claimed – advice from people smuggler and others to maximise claim – identity, Afghani citizenship and fear of harm maintained – Pakistani identity fraudulently obtained – Afghani documentation provided – country information – fraudulent feeder documents used to obtain genuine primary documents – no non-compliance in relation to identity – discretion to cancel visa – real chance of harm – visa would have been granted in any case – age, length of residence, education, work and community activities – possibility of indefinite detention – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 107A, 109

Migration Regulations 1994 (Cth), r 2.41

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 on 1 April 2022 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 applicant’s subclass 155 Five Year Resident Return visa on the basis that the applicant did not comply with s.101 of Subdivision C of the Act in that he provided incorrect information on his Form 866 application for a protection visa. Accordingly, the delegate determined there was non-compliance with section 101(b) of the Act, and by operation of s 107A concluded there are grounds for cancellation under s 109 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review of the delegate’s decision to cancel the applicant’s protection visa on 27 September 2021. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

1. 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.

2. 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.

3. 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?

1. 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(b) of the Act by reason that the applicant provided incorrect information regarding his personal information and protection claims.

   Section 101 states that:

   Visa applications to be correct

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

   (a)All questions on it are answered; and

   (b)No incorrect answers are given or provided 

2. Section 98 of the Migration Act provides that 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.

3. Section 99 of the Act provides 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 noncitizen'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.

4. Section 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.

Applicant’s migration history

1. The applicant arrived in Australia as an unauthorised maritime arrival [in] October 2011. He identified himself as [the applicant], born on [Date] and lodged a request for a Protection Obligations Evaluation (POE).

2. On 31 January 2012 the POE delegate of the Minister found that the applicant was not a refugee. On 8 February 2012, the applicant requested independent merits review of the POE decision and on 6 September 2012 he was found to be a person to whom Australia owed protection, based on his protection claims in reference to Afghanistan.

3. On 26 September 2012 the applicant lodged a Protection (XA-866) visa application which included an attached Statutory declaration made by him on 11 December 2011. The applicant was granted a protection visa on 3 October 2012.[1]

The NOICC

[1] Record of Decision of Whether to Cancel under section 109 of the Migration Act 1959 date 1 April 2022; Dept file No [Reference] Doc ID: 9691755

1. On 26 May 2016, a person claiming to be the applicant’s brother lodged a Safe Haven Enterprise (XE-790) visa application. During his interview with the delegate, he provided information which led to the Department to conclude that the applicant had provided incorrect information in his protection visa application in relation to his full name, date of birth, age, place of birth, citizenship, protection claims and family composition. The provision of incorrect information in the applicant’s protection visa application resulted in the cancellation of his Resident Return visa that was granted on 19 April 2018.

2. On 15 October 2019 the applicant lodged an application to sponsor his wife, [Mrs A] on a combined Partner Visa which was refused on 5 September 2023.[2]

   [2]    Applicant’s written submissions ([Migration Lawyers]) dated 8 September 2023.

3. On 16 October 2019, the applicant submitted a Notification of incorrect answers to correct incorrect information previously provided by the applicant to the department.[3]

   [3]    ibid

4. On 15 January 2020 a delegate of the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his protection visa. The Department alleged that information before it suggests that the applicant provided incorrect information in his protection visa application in relation to his full name, date of birth, age, place of birth, citizenship, protection claims and family composition.

5. Based on the information provided by the applicant’s two brothers, Pakistan’s National Database and Registration Authority (NADRA) certificate, country information, the NOICC issued by the Department stated that the applicant provided the following incorrect information in his Protection (XA-866) visa application dated 26 September 2012 and his supporting statutory declaration made on 11 December 2011 (‘the statutory declaration’) [4][5] as follows:

   [4]    Applications protection visa application dated 26 September 2012 and Statutory Declaration dated 11 December 2011 Dept File No [Reference] Doc ID 9691712.

   (a)Application for a Protection.

   i.The applicant’s name is not [the applicant]; his name is [Alias]

   ii.The applicant was not born on [Date 1] and was not aged [Age 1] at the time of submitting the application; he was born on [Date 2] and at the time of lodging the application he was [Age 2].

   iii.The applicant was not born in [Location] Jagorhi, Afghanistan, but in Quetta, Pakistan

   iv.The applicant’s citizenship at birth is not Afghanistan, but Pakistan

   v.The applicant was born in Pakistan and was a Pakistani citizen at birth; as a result, he did not experience harm in Afghanistan

   (b) The Statutory declaration.

   i.The applicant was not born in Afghanistan; he acquired Pakistani citizenship at birth as he was born in Pakistan to Pakistani citizen parents and did not leave Afghanistan with his family as he claimed in his Protection visa application.

   ii.The applicant did not experience the claimed harm in Afghanistan as he was born in Pakistan and acquired Pakistani citizenship at birth. As a Pakistani citizen he had access to all rights of other citizens of Pakistan including the right to hold Pakistan identity documentation and the protection of the Pakistan authorities given to all Pakistan citizens. Further, the applicant did not live in Afghanistan with his family and his father and stated brothers [Mr B], [Mr C], and [Mr D] were not missing or killed.

   iii.According to a notification of incorrect answers form dated 16 October 2019, relating to the applicant’s wife partner visa, the applicant’s father is not deceased and lives in Pakistan. This contradicts the applicant’s claims that his father had been killed in an attack in March 2011

   iv.According to the same notification of incorrect answers form dated 16 October 2019, the applicant’s brother is not deceased. This contradicts the applicant’s claims that when he was in [Country 1] his brother was killed when returning from [Country 2].

   v.The applicant does not fear returning to Afghanistan as a Hazara Shia at the hand of the Taliban and the Pashtuns, as he was born in Pakistan and was a Pakistani citizen at birth, and he did not live in Afghanistan with his family. Further, the claims that he cannot relocate nor seek protection from the local authorities constitute incorrect answer for the same reason.

6. The delegate claimed that the information provided by the applicant in his protection visa application suggests both applicant’s parents are documented Pakistani citizens, and as a result the information that the applicant provided with his protection visa application is incorrect. The delegate asserted that this incorrect information gave rise to a consideration of cancellation for possible non-compliance with s. 101(b) of the Migration Act.

Applicant’s documents

1. The applicant provided those documents as detailed in Annexure ‘A’ to the Department in response to the NOICC and to the Tribunal for the purposes of his review application.

Response to the NOICC

1. The applicant responded to the to the NOICC on 6, 24 and 28 February 2020, 15 and 27 May 2020, 26 June 2020, 1 September 2021, 28 October 2021, 15 February 2022, 28 March 2022[6].

   [6]    Dept file [Reference], doc ID: 96917451, 9691714, 9691715, 9691716, 9691717, 9691725, 9691724, 9691722, 9691723, 9691728, 9691729, 9691730, 9691732, 9691733, 9691760, 9691762, 9691750, 9691758, 9691751.

2. The applicant disputed that there was non-compliance in relation to his identity. Nevertheless, the applicant conceded[7] that he had not provided the correct information in relation to:

   (a)relating to his family composition.

   (b)his father place of residence and whether he is deceased or not.

   (c)his brother’s whereabouts.

   [7] Applicant’s written submissions ([Migration Lawyers]) dated 8 September 2023 at [17].

3. The applicant conceded that his father was not killed in 2011 as claimed. In addition, the applicant evidence was that at the time of him completing his protection visa application he did not know where his brothers were, so he claimed that they were missing. He conceded that his brother was not killed in a bus ambush as claimed. The applicant’s evidence was that he made the incorrect statements to enhance his claim on the advice of people he had meet on Christmas Island.

4. Based on the applicant own evidence, the Tribunal finds that the applicant did not comply with s 101(b) of the Act as described in the s 107 notice relating to his family composition, his father death, his brother’s death and whereabouts. Accordingly, the Tribunal is satisfied that the applicant did not comply with s 101(b) of the Act and as such the ground for cancellation has been established.

Applicant’s identity.

1. The applicant does not concede that there has been non-compliance with respect to his citizenship and nationality. He maintains that he has Afghan Citizen. He maintains his Pakistani identity was obtained fraudulently and that he is not a Pakistan citizen.

2. The applicant maintained that his correct name is [the applicant] and that he was born in Afghanistan on [Date]. He maintained that he is not responsible for the identity documentation provided by anyone other than himself. He explained that [his family name] comes from the name of his grandfather, [Mr E], as recorded on his father’s army discharge document. The applicant maintain that the information provided in his protection visa application concerning his identity, place of birth and the names of his family members was correct. In addition, he maintained that the information he provided in respect of his fear of persecution in Afghanistan in his protection application was true and correct.

1. The applicant submitted a statutory declaration sworn by his brother [Mr D] on 28 November 2018, indicating that his family’s Pakistani identity documents were purchased from a Pakistani family genuinely registered on NADRA, for the purpose of making survival for their family easier in Pakistan. The statutory declaration concurs with the one made by [Mr B] on 9 May 2017.

2. The statutory declarations are supported by the copies of Afghan Taskeras, a travel document, and the applicant’s father’s Afghan army discharge document submitted in response to the NOICC.

3. A two page ‘Family Chart’ was also provided by the applicant; the document lists claimed Afghan names, assumed Pakistani identities, and current location of each person.

4. The country information reports that fraud in Pakistan is widespread. Nevertheless, its reported that identity documents issued by NADRA are generally reliable.[8]  The most reliable forms of identification in Pakistan are passports and Computerised National Identity Cards (CNICs). The CNICs were predated by the Manual National Identity Card (MNICs) and soon to be replaced by the Smart National Identity Card (SNICS). The CNICs and SNICs are the most common form of identification in Pakistan. They are required to obtain a passport, driver’s license, to engage in formal employment, register to vote, and obtain access to services such as bank accounts, electricity and gas accounts, purchase land or vehicles.[9] To obtain a CNIC or SNIC an applicant is required to submit the CNIC or MNIC number of blood relative along with their own birth certificate, school, university certificate or citizenship certificate. It is possible to apply for the documents ‘online.’[10] However, for those seeking to obtain a CNIC for the first time it is necessary to present themselves in person at a NADRA registration centre to submit their paperwork, have their photograph taken and provide their signature and impression of their thumb.[11]

   [8]   DFAT Report at p.44

   [9]   DFAT Report at p.45

   [10]  ibid

   [11]  ibid

5. However, it reported[12] that it is common practice to obtain genuine documents fraudulently in Pakistan. The types of documents routinely found to be fraudulent in Pakistan include documents regarding academic qualifications such as degrees and transcripts, bank statements, "agreements", "references", and "ownership deeds" As a result genuine documents such as the CNIC and passports can be obtained with fraudulently altered or counterfeit feeder documents.[13] Its reported that unlicensed travel ‘consultants’ in Pakistan offer services for individuals to travel abroad with forged documents.[14] According to an official of Pakistan's Federal Investigation Agency (FIA), these ‘consultants’ are not regulated in Pakistan, leaving opportunities for them to act as fronts for smuggling networks. It’s reported that the smugglers offer a ‘guarantee system’ by which they guarantee to supply migrants caught using fraudulent documents fresh documents for the purpose of leaving the country on two further attempts.[15] The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX),[16] reported that 262 of 7,888 cases of persons using fraudulent documents entering the European Union in 2012 were Pakistani nationals.[17] In 2012 the United Kingdom’s High Commissioner to Islamabad stated that Pakistan was a ‘global leader in visa forgery. ’ he claimed that 4 000 people had been caught the previous year trying to acquire passports using fake documentation.[18]

   [12]  Canada: Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents, including non-identity documents such as academic qualification documents, travel documents, First Information Requests (FIRs), land ownership titles and newspaper articles, and identity documents including identity cards and birth certificates; methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents(2012-December 2014), 14 January 2015, PAK105021.E, available at: DFAT report at p.47

   [14] Canada: Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents, including non-identity documents such as academic qualification documents, travel documents, First Information Requests (FIRs), land ownership titles and newspaper articles, and identity documents including identity cards and birth certificates; methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents(2012-December 2014), 14 January 2015, PAK105021.E, available at: ibid

   [16] ibid, FRONTEX is a European Union agency set up to reinforce and streamline cooperation between national border authorities.

   [17]  ibid

   [18]  Parliamentary Question European Parliament ‘Visa Racketing and fraud in Pakistan’ 22 July 2012; type="1">

6. In this case the applicant’s evidence was that he and his family had travelled from Afghanistan in or about 2000. As ethnic Hazera they lived in Hazera Town in Quetta, Pakistan. The applicant was able to describe to the Tribunal the township of Quetta and Hazara Town. The applicant’s evidence was that he attended school in Hazara town [at location] about a 20-minute walk from where he lived with his family.  

7. The applicant’s evidence was his father fraudulently obtained the From B and NADRA by purchasing the identity details of his maternal uncle [Mr F]. The applicant understands that his father engaged an agent to register his name as [Mr F] and to register his family on the From B. This was done to so his family could access services within Pakistan (including access public schools) and avoid being deported back to Afghanistan.  The applicant’s evidence was that his father paid an agent Rupees 30,000 (approximately AUD$50.00) for a CNICs. The applicant then travelled with his father to Karachi where his father engaged an agent to obtain a genuine Pakistan passport based on the fake identification documents for the purpose of him leaving the country. Consistent with the applicant’s evidence, the available the country information[19] reports that Afghans have obtained in bulk fake Pakistani passports in the past. It’s reported that the practice of obtaining passports based on false information has intensified in the last two years.[20] Saudi Arabia recently has recovered 12,000 fake Pakistani passports from Afghan nationals.[21] In response,[22] that NADRA has issued notices to over 12,500 Afghans who have been issued identity cards and passports that are believed to be fake.

   [19]  The Express tribune ‘Fake Pakistani passports and implications for national secuity’ by Shazia Answer Cheema dated 8 November 2023; ibid

   [21]   ibid

   [22]  SAMAA, ‘Action against 12500 Afghans pover fake passports, ID cards scandal’, by Qamarul Munawar 25 October 2023. >

   Therefore, based on the evidence provided by the applicant and the available country information the Tribunal accepts the applicant’s identity as claimed. As such it finds that the applicant’s name is [the applicant] and that he was born in Afghanistan on [Date]. Accordingly, the Tribunal accepts that he is an ethic Hazara and that he departed Pakistan on a genuine Pakistan passport based on false information.

8. Therefore, having considered the applicant’s claims, his application for a protection visa, the decision to grant the applicant a protection visa, the NOICC and the delegates decision to cancel the applicant’s visa, the Tribunal is satisfied that based on the proper consideration of the available facts and material, that he did not provide incorrect answers to the Department in his protection visa application and supporting statutory declaration within the meaning of the Regulations. Accordingly, the Tribunal finds that the grounds for cancellation in relation to the applicant’s identity do not exist.

9. For these reasons, the Tribun  al finds that there was no non-compliance by the applicant in relation to his identity in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa based on his identity does not arise. 

10. However, the applicant has conceded that he did not comply with s 101(b) of the Act as described in the s 107 notice his initial protection visa application in relation to his family composition, his father place of residence and whether he was deceased and his brother’s whereabouts. Accordingly, based on the applicant’s own admission, the Tribunal is satisfied that he did not comply with s 101(b) of the Act and finds that the ground for cancellation has been established as described in the notice given under s.107 of the Act.

Should the visa be cancelled?

1. 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).

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.

3. The Tribunal’s consideration of these matters follows.

The correct information

1. The Tribunal has accepted and found that that the correct information in relation ot the applicant’s identity is that his name is [the applicant], he was born in Afghanistan on [Date] and that he is a citizen of Afghanistan.

2. In relation to the applicant statutory declaration the applicant confirmed that his father remains alive and living in Pakistan. The applicant confirmed that he was not killed in May 2011 as claimed.  In addition, that applicant confirmed to the Tribunal that his brother was not killed while returning from [Country 2] as claimed. As a result, the applicant conceded that the composition of his family as claimed was incorrect.

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

1. The applicant submits[23] that the basis for concluding that the applicant met the criteria a protection visa was that he was Hazara ethnicity and a Shia Muslim and not based on the on the incorrect information.

   [23] Applicant’s written submissions ([Migration Lawyers]) dated 8 September 2023 at [56].

2. The applicant’s claims for protection are detailed in his protection visa application and the statutory declaration.[24] The applicant in his statutory declaration claims that he does not feel safe ‘in a county in which Hazara Shia are being killed and there is no protection.’[25] The applicant states that it is not Safe to travel the road because of the Taliban attack Hazara Shai. In addition, he claims that the situation of Hazara Shia is very dangerous in Pakistan and Afghanistan.[26]

   [24]  Applications protection visa application dated 26 September 2012 and Statutory Declaration dated 11 December 2011 Dept File No [Reference] Doc ID 9691712.

   [25] Statutory Declaration dated 11 December 2011 at [7] Dept File No [Reference] Doc ID 9691712.

   [26] Statutory Declaration dated 11 December 2011 at [3] Dept File No [Reference] Doc ID 9691712.

3. Based on the applicant’s evidence and the available country information, the Tribunal has accepted the applicant’s identity and the fact that he is an ethnic Hazara.  While part of the applicant claims was that he was an Afghan living in Pakistan as a refugee without identification documentation, the real basis of the applicant’s claim was that he is an ethnic Hazara and as such faced a real chance of serious harm if he was returned to Afghanistan.  The delegate accepted that the applicant is delegate an ethnic Hazara and granted the applicant a protection visa on the basis that there was a real chance he would be harmed if returned to Afghanistan as an ethic Hazara. As such, based on the applicant’s ethnicity the delegate accepted that he was owed protection visa obligations and granted him a protection visa.

4. Accordingly, the Tribunal considers the decision to grant the protection visa was based on the applicant’s claims as an ethnic Hazara.  The Tribunal finds that based on the applicant’s claims for protection and the available country information, had the correct information been known by the delegate about his father, his brother and family composition, he would still have been granted protection. The Tribunal gives this consideration significant weight in favour of not cancelling the applicant’s visa.

The circumstances in which the non-compliance occurred

1. The applicant claims that he was young when he arrived in Australia as an unauthorised maritime arrival. He had no prior experience in dealing with government authorities such as Australia and no legal guardian at the time. His youth and inexperience made him vulnerable to suggestion by others and to exaggerating his families circumstances out of fear of being returned to his country.[27] 

   [27] Applicant’s written submissions ([Migration Lawyers]) dated 8 September 2023 at [59]-[63].

2. The applicant’s evidence was that he received misguided advice from the people smuggler and other individuals in [Country 1] who suggested that to enhance his chances of obtaining a protection visa, he should present himself as the head of his family. It was suggested to him that his case may appear more compelling of his mother was depicted as residing along with younger siblings without male protection.[28]

   [28] ibid

3. The fact that the applicant gave false information to the department in his protection application and supporting statutory declaration must be considered in the context of the circumstances in which he applied for protection.  As a member of the Hazara community in Pakistan and Afghanistan the applicant was subjected to oppression, insecurity, and discrimination. It’s reported[29] that the Hazara community in Quetta face a moderate risk of societal discrimination in the form of impeded access to education, medial services, and employment. In addition, they face official discrimination by government officials and security forces in for from of obstruction at checkpoints, denial or delay of identity documentation employment and other services.[30]

   [29] DFAT report at p.19

   [30] ibid

4. The applicant arrived in Australia as an unauthorised maritime arrival in circumstances where he had little education and poor command of the English language. Given the applicants background and the circumstances in which he made his application for protection, the Tribunal accepts that the applicant would be suspicious of officials in dealing with the protection application and given his relative youth and lack of education, he would be prone to ‘guild the lily’ for the purposes of ensuring that he would not be returned to Pakistan. As such the Tribunal places significant weight on this consideration in favour of not cancelling the applicant’s visa.  

The present circumstances of the visa holder

1. The applicant is well-established in Australia and settled into the community. He has been consistently employment since his arrival in Australia having worked as a [worker] and holding qualifications in [specified work type]. The applicant worked with his brother as [an Occupation 1] and now conducts his own [business] known as [Company 1]. It was the applicant evidence that he currently lives in his own home and has investment properties in [Suburb 1] Victoria and Adelaide, South Australia.

2. The applicant contributes to financially supporting his parents and his wife who continue t live in Pakistan.  He has sponsored his wife [Mrs A] on a partner visa which has been refused. However, his evidence was that he intends to have the decision reviewed on the basis that he is successful in his view of his visa cancellation. The applicant is also paying off a mortgage of his home in [Suburb 1], Victoria, and his investment property in Adelaide.

3. The applicant’s evidence was that he contributes to the community by volunteering with [Organisation 1]. A statement by [Mr G], Chairman of [Organisation 1][31] confirms that the applicant has been a volunteer with [Organisation 1] since 2017. The applicant has assisted [Organisation 1] in cultural events, family violence workshops and distributing food packages and baby foods during the Covid -19 pandemic.  In addition, the applicant volunteers his time and support to [Organisation 2].[32] The Tribunal accepts that the applicant has volunteered with [Organisations 1 and 2] as claimed.

   [31] Statement by [Mr G], Chairman of [Organisation 1] dated 12 April 2022

   [32]   Statement by [H], Secretary [Organisation 2] dated 8 April 2022

4. The Tribunal accepts that the applicant has worked hard since his arrival in Australia. Since his arrival he has manages to accumulate enough to be able to have his own home and two investment properties. He has been consistently employed and has been involved in the community through his work with [Organisations 1 and 2] as claimed. The applicant has worked and [an Occupation 1] since 2015 and now owns and operates his own [business]. 

5. Therefore, based on the applicant own evidence and the statements provided by [Organisations 1 and 2] the Tribunal accepts that the applicant has made a positive impact on the Australian community since his arrival. The Tribunal places significant weight in relation to his consideration in favour of not cancelling the applicant’s 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

1. The applicant provided an initial response to the department in response the NOICC. The applicant claims that this response was prepared by the applicant former agent. The applicant acknowledges and concedes that he signed the document but states that he did not review it carefully. The applicant has corrected information that was incorrect in the initial response. The Tribunal accepts that save for the information that was corrected, the applicant has otherwise been forthcoming with engaging with the department with respect to his obligations pursuant to Subdivision C of Division 3 of Part 2 of the Act.   and didn’t review it as carefully as he should have, however he has now corrected the information and has been engaged with the Department. The Tribunal gives this consideration some weight in favour of not cancelling the applicants visa.

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

1. There are no other instances of non-compliance known to the Tribunal. The Tribunal gives this consideration some weight in favour of not cancelling the applicants visa. 

The time that has elapsed since the non-compliance

1. The applicant arrived in Australia in 2011 at the age of [age] years. Since arriving, he has spent nearly 12 years in Australia during which time he has developed strong ties to the community. The applicant has worked consistently and becoming a qualified [Occupation 1] and now owns and operates his own business. The applicant has paid his taxes and provided employment to others.  The Tribunal considers the period of time the applicant has been in Australia as significant. As such, the Tribunal gives this consideration significant weight in favour of not cancelling the applicant’s visa.  

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

1. There is no evidence before the Tribunal to suggest that the applicant has breached the law since the non-compliance. The applicant is expected to obey the law. As such, the Tribunal gives this consideration no weight in favour of not cancelling the applicants visa.

Any contribution made by the holder to the community.

1. The applicant has made charity donations in the past and has volunteered his time to help his elderly neighbour. He has also participated in community through [Organisations 1 and 2] he has also run a successful [Occupation 1] business through which he has provided opportunities to subcontractors and employees. The tribunal gives this consideration little weight in favour of not cancelling the applicants visa.

Other considerations

1. While the factors specified in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered relevant in any given case.[33] The Tribunal has also had regard to lawful government policy. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be considered before making a decision to cancel a visa. The relevant policy is set out in the Department’s Procedural Instruction ‘General visa cancellation powers s 109, s 116, s 128, s 134B and s 140’.

   [33] MIAC v Khadgi (2010) 190 FCR 248

2. As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the circumstances of a particular case.[34]

   [34] Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634 (‘Re Drake No 2’)

3. The policy refers to the following matters:

   (1)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

   (2)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

   a.   if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision‑makers are obliged to treat as a primary consideration the best interests of the children.

   b.   whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.

   (3)Whether there are mandatory legal consequences to a cancellation decision, for example three examples:

   a.   whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non‑refoulement obligations.

   b.   whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P); and

   c.    whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189, and liable for removal under s 198.

   (4)Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).[35]

   [35]  Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) at [4.1]

4. Notably, all these matters relate to the consequences of cancellation.

Whether there would be consequential cancellations under s 140

1. There are no consequential cancellations in this case. As such, the Tribunal gives no weight to this consideration. 

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

1. 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.[36]

Best interests of the applicant’s child and family unity principles

[36]  PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).

1. As a signatory to the Convention on the Rights of the Child (CRC), Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).  These are not relevant in this case. As such, the Tribunal gives no weight to this consideration. 

Australia’s non-refoulement obligations

1. In this case it was submitted that if the applicant is returned to Afghanistan there would be a real risk, he would face persecution amounting to death and other forms of serious harm. As such, it was submitted that any act to forcibly remove him to Afghanistan would amount to a clear breach of Australia’s non-refoulment obligation. As a signatory to the Refugee Convention 1951 Australia remains obligated to those who have sought protection. In addition, Australia has non-refoulment obligations to the applicant under three international conventions namely Convention Relating to the Status of Refugees (Article 33), Inhumane or Degrading Treatment or Punishment (Article 3) and the International Covenant on Civil and Political Rights (Article 6 and 7 and the second Optional Protocol). The Tribunal accepts that the Australia has non-refoulment obligations under the international conventions as state.     

1. The available country information[37] reports that as an ethnic Hazara the applicant, if he was returned to Afghanistan, he would face a high risk of harassment and violence from both the Taliban and ISKP, based on his ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.

   [37]   DFAT Thematic Report on Political and Security development in Afghanistan (August 2021 to January 2022) 14 January 2022 at p.13

2. Based on the country information the Tribunal accepts that the applicant as an ethnic Hazara faces a high risk of harassment and violence if he is returned to Afghanistan.   As such the Tribunal places significant weight on Australia’s non refoulement obligations in favour of not cancelling the applicant’s visa. 

Mandatory legal consequences to a cancellation decision

1. If the visa is cancelled and the applicant exhausts his appeal rights, 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, the Act does not require or authorise his removal as per the recent amendments pursuant to s 197C(3). This means the applicant 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 decides under s 48A of the Act it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country. 

2. In circumstances where the Tribunal considers that the applicant will likely face the prospect of indefinite detention, the Tribunal gives this factor significant weight against cancelling the applicant’s visa.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

1. There are no other relevant matters.

EXERCISE OF DISCRETION

1. In exercising its discretion as to whether the visa remains cancelled or not, the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department in relation to the composition of his family. In particular, the fact that the applicant incorrectly claimed that his father and brother had been killed.  However, the incorrect information he provided was not central to the decision to grant him a protection visa.  As discussed, the Tribunal considers that had the correct information been known, as an ethnic Hazara he would still have been been found to engage Australia’s protection obligations. Nevertheless, the Tribunal considers it inappropriate that the applicant should have benefit from having provided the incorrect information. 

2. Having considered all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa.  The Tribunal gives weight to Australia non refoulement obligations to the applicant together with the period of time the applicant has bene in Australia and his contribution to the community.

CONCLUSION

1. 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 in relation to the composition of his family and in relation to the death of his father and brother. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. 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.

Jason Pennell
Senior Member

Annexure ‘A’

Documentation provided to the to the Department in response to the NOICC[38]:

[38]  Dept file [Reference]

(a)Representative’s submissions, dated 6 February 2023[39]

[39]   Dept file [Reference], doc ID 9691745

(b)Afghan passport for [Mr D], with expiry date [in] 2023[40]

[40]  ibid

(c)Correction to the representative’s submissions dated 6 February 2023, provided on 28 February 2023[41]

[41]  Dept file [Reference], doc ID 9691714

(d)Military service discharge papers for the applicant’s grandfather for the [year] and [year], accompanied by NAATI certified English translation[42]

[42]  ibid

(e)Copy of the applicant’s responses provided in his protection visa application in relation to his family and relatives[43]

[43]  ibid

(f)Photograph of the applicant as a child with members of his family, highlighting his mother and his sister[44]

[44]  Dept file [Reference], doc ID 9691715

(g)Statutory declaration made by the applicant’s brother [Mr D], dated 28 November 2018[45]

[45]  Ibid

(h)Representative’s email dated 24 February 2020, outlining documents provided and information in response to the NOICC[46]

[46]  Dept file [Reference], doc ID 9691716

(i)Family chart for the applicant listing claimed Afghan names, assumed Pakistani identities, and current location of each person [47]

[47]  ibid

(j)Applicant’s Afghan ID card [in] November 2017, accompanied by NAATI certified English translation[48]

[48]  ibid

(k)Afghan ID card issued [in] 2013 for [Mr D], accompanied by NAATI certified English translation[49]

[49]  ibid

(l)Email from [Mr D] dated 4 February 2020, authorising use of his statutory declaration for his brother’s matter[50]

[50] ibid

(m)Further NOICC response email sent by the representative on 28 February 2020[51]

[51]  Dept file [Reference], doc ID 9691717

Documentation provided by the applicant to the Tribunal

(a)Applicant’s Afghan ID card issued on 11 November 2017, accompanied by NAATI certified English translation.[52]

[52] AAT file 2205684, doc ID 9670468

(b)Applicant’s marriage certificate[53]

[53]  AAT file 2205684, doc ID 9670469

(c)Form for identity verification and other services for Afghan nationals resident overseas document issued by the Afghan Embassy in Canberra [in] September 2017, accompanied by NAATI certified English translation[54]

[54] AAT file 2205684, doc ID 9670466

(d)Applicant’s Victorian driver’s licence, Medicare card, Working with Children check, [WorkSafe] induction card, contractor card[55]

[55] AAT file 2205684, doc ID 9670467

(e)Expedited processing support letter issued by Clinical Psychologist [Mr I] of [specified psychological service] on 22 January 2023[56]

[56] AAT file 2205684, doc ID 11136039

(f)Applicant’s statutory declaration dated 27 May 2020[57]

[57] AAT file 2205684, doc ID 11136046

(g)Invitation to comment on information for a Partner (Migrant) (class BC) Partner (subclass 100) visa issued to the applicant’s wife on 23 August 2018[58]

[58] AAT file 2205684, doc ID 11136049

(h)Statutory declaration made by the applicant’s brother [Mr D], dated 28 November 2018[59]

[59]  AAT file 2205684, doc ID 11136050

(i)Notification if cancellation under section 109 of the Migration Act 1958 issued to the applicant on 1 April 2022[60]

[60]  AAT file 2205684, doc ID 11136051

(j)Support letter issued by [Mr J], Vice President of [Organisation 3] on 22 April 2022[61]

[61]  AAT file 2205684, doc ID 11136038

(k)Support letter issued by [H], Secretary of [Organisation 2] on 8 April 2022[62]

[62]  AAT file 2205684, doc ID 11136040

(l)Support letter issued by [Mr G], Chairman of [Organisation 1] on 12 April 2022[63]

[63]  AAT file 2205684, doc ID 11136041

(m)Military service discharge papers for the applicant’s grandfather for [year] and [year], accompanied by NAATI certified English translation[64]

[64]  AAT file 2205684, doc ID 11136043

(n)2x photograph of the applicant as a child with members of his family, highlighting his mother and his sister in one photograph and his uncle, brother and cousin in the other[65]

[65]  AAT file 2205684, doc ID 11136044 and 11136045

(o)Applicant’s preliminary submissions provided by the representative dated 15 January 2023[66]

[66]  AAT file 2205684, doc ID 11400145

(p)Statutory Declaration sworn by the applicant on 8 September 2023[67]

[67]  AAT file 2205684, doc ID 1148612

(q)Taskera of the applicant identifying him as an Afghan national[68]

[68]  ibid

(r)Taskera of the applicant’s father, [Mr K][69]

[69]  ibid

(s)Taskera of the applicant’s brother, [Mr D][70]

[70]  ibid

(t)Taskera of the applicant’s sister, [Ms L][71]

[71]  ibid

(u)Taskera of the applicant’s brother, [Mr B][72]

[72]  ibid

(v)Taskera of the applicant’s brother, [Mr M][73]

[73] ibid

(w)Taskera of the applicant’s brother, [Mr B][74]

[74] ibid

(x)Taskera of the applicant’s sister, [Ms N][75]

[75] ibid

(y)National ID Card of the applicant’s sister, [Ms N][76]

[76] ibid

(z)Afghan passport of the applicant’s brother, [Mr D][77]

[77] ibid

(aa)Afghan passport of the applicant’s sister, [Ms L][78]

[78]  ibid

(bb)Afghan passport of the applicant’s brother, [Mr M][79]

[79]  ibid

(cc)Afghan passport of the applicant’s brother, [Mr C][80]

[80] ibid

(dd)Australian passport of the applicant’s nephew, [Mr O][81]

[81]  ibid

(ee)NSIA Report[82]

[82]  ibid

(ff)Applicant’s Titre De Voyage expired in 2015[83]

[83]  ibid

(gg)Applicant’s Titre De Voyage expired in 2018[84]

[84] ibid

(hh)Applicant’s Titre De Voyage expired in 2019[85]

[85]  ibid

(ii)Applicant’s application for a passport (under Taliban government)[86]

[86]  ibid

(jj)Afghan military discharge document of the applicant’s father, [Mr K] (Father)[87]

[87]  ibid

(kk)Letter by the Embassy of the Islamic Republic of Afghanistan verifying the Afghan citizenship of the applicant’s brother, [Mr B], dated [in] April 2018[88]

[88]  ibid

(ll)Images from Google Maps identifying the applicant’s hometown of [Location], Jaghori, Afghanistan[89]

[89]  ibid

(mm)Images of the applicant and his family members in Afghanistan[90]

[90]  ibid

(nn)Applicants donation to Ambulance Active dated 1 March 2021[91]

[91]  ibid

(oo)Applicant’s business advert on [Source] September 2020[92]

[92]  ibid

(pp)Email from Victorian Property Settlements regarding the applicant’s property in in [Suburb 1][93]

[93]  ibid

(qq)Financial Settlement’s Schedule for the applicant’s property in [Suburb 1][94]

[94]  ibid

(rr)Country information annexure relating to documents fraud in Pakistan and Shia Hazaras in Afghanistan[95]

[95] ibid

(ss)Applicant’s written submissions provided by the representative dated 8 September 2023[96]

[96] ibid

(tt)Copy of the primary decision record from the Department of Home Affairs (‘the Department’) dated 1 April 2022

(uu)Correction to further NOICC response email sent by the representative on 28 February 2020[97]

[97]  Dept file [Reference], doc ID 9691718

(vv)Afghan ID card issued [in] 1982 for [Mr K], being the applicant’s father, accompanied by NAATI certified English translation[98]

[98]  Dept file [Reference], doc ID 9691725

(ww)Pakistan certificate of children below 18 years of age, issued [in] 2005, accompanied by NAATI certified English translation[99]

[99]   ibid

(xx)Pakistan passport for [Mr D], with expiry date [in] 2015[100]

[100] ibid

(yy)Pakistan passport for [Mr D], with expiry date [in] 2020[101]

[101] ibid

(zz)AFP National Police Certificate dated [in] November 2018 for [Mr D][102]

[102] ibid

(aaa)Form for identity verification and other services for Afghan nationals resident overseas document issued by the Afghan Embassy in Canberra [in] 2017, accompanied by NAATI certified English translation[103]

[103] Dept file [Reference], doc ID 9691724

(bbb)Further NOICC response email sent to the Department from the representative, dated 15 May 2020[104]

[104] Dept file [Reference], doc ID 9691722

(ccc)Letter verifying Afghan national ID card for [Mr B], issued by the Afghan Embassy in Canberra [in] April 2018[105]

[105] ibid

(ddd)Afghan ID card issued [in] December 2010 for [Mr B], accompanied by NAATI certified English translation[106]

[106] ibid

(eee)Notice of Federal Circuit Court of Australia filing for the applicant’s brother Mr Mohammad Hanif, dated [in] May 2020, and notice of filing and hearing [in] August 2020[107]

[107] ibid

(fff)Notice of seizure of bogus documents, issued by the Department to [Mr B] on 6 February 2018[108]

[108] ibid

(ggg)Federal Circuit Court of Australia judgement for [case citation], dated [in] 2020[109]

[109] ibid

(hhh)Victorian Driver’s licence for [Mr B] with expiry date [in] December 2021[110]

[110] ibid

(iii)Notification of Grant of a Bridging Visa E to [Mr B], dated 21 April 2020[111]

[111] ibid

(jjj)Applicant’s statutory declaration dated 27 May 2020[112]

[112] Dept file [Reference], doc ID 9691728

(kkk)Further NOICC response email sent to the Department from the representative, dated 27 May 2020[113]

[113] Dept file [Reference], doc ID 9691730

(lll)ATO Notice of Amended Assessment for the applicant, dated 11 May 2020[114]

[114] Dept file [Reference], doc ID 9691732

(mmm)Certificate III in [Subject], issued to the applicant on 20 December 2013[115]

[115] ibid

(nnn)2x photographs showing the applicant is a team member of [specified] Football Club[116]

[116] ibid

(ooo)Certificate “World’s funniest artist” issued to the applicant[117]

[117] ibid

(ppp)Social media posts made by the applicant in support of the Australian soccer team and Anzac Day 2017[118]

[118] ibid

(qqq)Evidence of the applicant’s funds[119] donation for “Raise your hand for literacy”

[119] ibid

(rrr)Applicant’s business card for his business [Company 1][120]

[120] ibid

(sss)Settlement notice email for the applicant’s property in [Suburb 1], dated 26 June 2020[121]

[121] ibid

(ttt)Photograph of the applicant at [Age] at [named] School in Darwin receiving an award[122]

[122] ibid

(uuu)Further email from the representative to the Department, providing requested individual contact details for all three brothers[123]

[123] Dept file [Reference], doc ID 9691750

(vvv)Further email from the representative to the Department, in relation to the applicant’s wife pending partner visa application, dated 1 September 2021.[124]

[124] Dept file [Reference], doc ID 9691762

(www)Applicant’s wife acknowledgement of partner visa application, dated 15 October 2019.[125]

[125] ibid

(xxx)     Applicant’s Resident Return (subclass 155) visa grant, dated 19 April 2018.[126]

[126] ibid

(yyy)     Afghan passport for [Mr M], with expiry date [in] 2022.[127]

(zzz)     Applicant’s Australian titre de voyage with expiry date [in] 2023.[128]

(aaaa)Biocollection fees receipts for the applicant’s wife dated 22 October 2019.[129]

(bbbb)13x photographs of the applicant and his wife.[130]

(cccc)Afghan passport for the applicant’s wife, with expiry date [in] 2021.[131]

(dddd)Email by applicant’s representative dated 15 February 2022.[132]

(eeee)Further email from the representative to the Department dated 28 March 2022[133]

(ffff)     Letter of support dated 24 March 2022.[134]

[127] ibid

[128] ibid

[129] ibid

[130] ibid

[131] ibid

[132] Department file [Reference], doc ID 9691758

[133] Department file [Reference], doc ID 9691751

[134] ibid

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

4. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

5. Incorrect 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.

6. Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Notice 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.

1. Decision 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.

2. Cancellation 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.

[5] Record of Decision of Whether to Cancel under section 109 of the Migration Act 1959 date 1 April 2022; Dept file No [Reference] Doc ID: 9691755.