2206751 (Refugee)

[2023] AATA 2788

2206751 (Refugee) [2023] AATA 2788 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Nasim Nazariadli (MARN: 1170363)

CASE NUMBER:  2206751

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Paul Noonan

DATE:24 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 24 July 2023 at 12.39pm

CATCHWORDS

REFUGEE – protection visa – stateless/Iran – incorrect answers given in visa application – name, age, citizenship and parents’ details – not minor stateless Faili Kurd but young adult Iranian citizen – answers maintained through to citizenship application – adverse information and department’s investigations – ground for cancellation conceded in response to department’s notice – discretion to cancel visa – born in third country to Iranian citizen parents – on return to Iran, father accused of spying for third country – advised by people smuggler to provide incorrect answers – limited participation in protests in Australia – return visit with brief questioning at airport – no harm to father – non-refoulement – protection finding not quashed or set aside – possibility of indefinite detention – wife’s separate protection application in progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 197C(3), 197D(2), 198

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. On 12 April 2022 a delegate of the Minister for Home Affairs decided to cancel the applicant’s protection visa, granted on 6 July 2011, under s 109(1) of the Act. The delegate found that grounds for cancelling the visa existed because the applicant provided incorrect information in his visa application form, in breach of s 101(b). Having regard to the applicant’s response to the Notification of Intention to Consider Cancellation (NOICC) and prescribed matters, the delegate decided to cancel the visa.

3. This is an application for review of that decision of the delegate. The review applicant is a man in his [Decade], who claims to have been born in Iran and to be an Iranian national, although he initially claimed to have been a stateless person. He arrived in Australia [in] November 2010 by boat and claimed that he was an unaccompanied minor and a stateless Faili Kurd. As the applicant now concedes that the ground for cancellation is made out, the issue is whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 30 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review. 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 affirmed.

   Background

7. The applicant arrived in Australia by boat without permission and claiming he had no documentation. He was placed into immigration detention.

8. The applicant made a request for a Protection Obligation Evaluation (POE) on 4 March 2011. On 18 April 2011 the applicant was recognised as a person to whom Australia has protection obligations. On 4 July 2011 the applicant lodged an application for an 866 (Class XA) protection visa. He declared his name as [Alias] date of birth [Date 1]. Based on the information he gave in this claim the applicant was granted a protection visa on 6 July 2011.

9. On 8 March 2022, the Minister’s delegate sent a NOICC under s 107 of the Act, addressed to the applicant and sent to him by registered post.

10. On 4 April 2022, the applicant’s representative sent the applicant’s response to the NOICC. In his response, the applicant admitted that he provided incorrect information, namely that he falsely claimed to be a stateless person when he is an Iranian citizen. His response included comments on why the visa should not be cancelled.

11. On 12 April 2022, the Minister’s delegate made a decision to cancel the visa under s 109, on the basis that the applicant had provided incorrect information and therefore not complied with s 101(b) of the Act; and that the seriousness of the non-compliance outweighed the circumstances in favour of non-cancellation.

12. The applicant sought review of the delegate’s decision on 9 May 2022 with the Tribunal.

13. The issue in this review is whether the Tribunal should exercise the discretion to cancel the visa (in light of the fact that the applicant accepts there was non-compliance in the way described in the s 107 notice).

    Evidence

14. The Tribunal has the following relevant materials before it:

    ·A NOICC, dated 8 March 2022.

    ·A Record of Decision of Whether to Cancel under Section 109 of the Migration Act 1958, dated 12 April 2022; and a Notification of Cancellation under section 109 […], also dated 12 April 2022.

    ·A copy of the applicant’s protection visa application dated 4 July 2011.

    ·Submissions to the Tribunal received on 27 June 2022, 30 June 2023 and 7 July 2023.

    ·Iranian identity documents with respect to the applicant.

    ·The Department file.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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.

17. 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?

18. The applicant concedes that there was non-compliance in the way described in the s 107 notice, being the manner (validly) particularised in the notice. This was a breach of s 101(b): ‘A non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are to be given’.

19. The s 107 notice identified instances where the applicant provided incorrect information in his protection visa application. This is relevant to this review insofar as it indicates the extent to which the decision to grant the applicant a protection visa was based on the incorrect information; and it potentially also goes to the question of whether Australia has non-refoulement obligations in respect of him. The s 107 notice particularised the following:

    ·The applicant declared in his protection claim that he is an unaccompanied minor and stateless Faili Kurd born in Iran. As a result he left Iran as he could not obtain employment, undertake military service, register a marriage or the birth of any children. He fears returning to Iran as he left illegally and the authorities would claim him to be a spy and a traitor.

20. The NOICC set out the evidence of the applicant’s Iranian nationality:

    ·Birth certificate (record [number 1]) issued by [Country] Ministry of Health, which records his identity as [the applicant] (DOB: [Date 2]). The birth certificate records the applicant’s father as [Mr A] (identity card [number 2]) and mother as [Ms B] (identity card [number 2]).

    ·Iranian national ID card (NIC) ([number 4]), which records his identity as [the applicant] (DOB: [Date 2]), and an English translation.

    ·Iranian passport (document [number 5]), which records his identity as [the applicant] (DOB: [Date 3]), issued [in] February 2009, and an English translation.

21. As the s 107 notice concludes, the applicant’s alleged ‘stateless status’ was given considerable weight in the Department’s decision, and the subsequent granting to him of protection.

22. As noted above, the applicant acknowledged in his response to the NOICC that he is an Iranian citizen. The Tribunal concludes that the applicant gave incorrect information at questions 1, 9, 10, 41, 42, 43, 44, 45, 46 and 50 of his protection visa application form; and that he also gave incorrect information in the statement that he relied on for his protection visa application, as well as his POE assessment. This is the incorrect information particularised in the s 107 notice.

23. The Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    The applicant’s response

24. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance. The applicant conceded that he had provided incorrect information that he was stateless, rather than an Iranian citizen. In relation to whether the visa should be cancelled, the submission provides information addressing a number of the prescribed circumstances, as well as other considerations. In particular, he stated that his father, who had moved back to Iran from [Country], was accused of being a spy for [Country]. On a trip to Iran he was held captive due to his father’s profile and it took him a long time to be released. Upon his return to [Country] it was too expensive to live and he decided to move to Australia. He also points to his personal and family circumstances in Australia. The Tribunal addresses these in considerations below, together with the written and oral evidence provided during this review.

    Consideration of prescribed circumstances

    Should the visa be cancelled?

25. 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).

    The correct information

26. The Tribunal finds, in light of the foregoing information and the applicant’s oral and documentary evidence, that the correct information is that the applicant is an Iranian national and that he held an Iranian passport, national ID card and [Country] birth certificate (hence, he is not undocumented) and that his correct name is [the applicant] and that his correct date of birth is [Date 2]. It also finds that his claims that he and his family suffered harm, and were unable to obtain protection for the reason of being stateless Faili Kurds, to be incorrect.

27. The Tribunal considers this information is very important, and if known to the Department at the time of the application would have resulted in very different country information and assessment criteria being used in assessing the claim for protection. The Tribunal therefore gives this factor significant weight in favour of cancelling the visa.

    The content of the genuine document (if any)

28. This prescribed circumstance is not relevant in the applicant’s case because the s 107 notice relied solely on s 101, not on s 103 (which relates to bogus documents).

    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

29. The Tribunal finds that the decision to grant the visa was based wholly upon incorrect information with respect to the applicant’s citizenship and identity and therefore gives this factor significant weight in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

30. At the hearing the applicant indicated that he had not provided correct information as he had been badly advised by a people smuggler who had convinced him to provide a false identity. He was young and inexperienced but was only thinking of his life and future when he decided to follow this advice. His conscience has not felt right since then. The Tribunal accepts that the applicant relied on third parties for advice. However, it is not satisfied that these adequately explain his judgement and conduct in relying on incorrect information.

31. Overall, the Tribunal does not accept that the applicant’s circumstances, his travel to Australia and/or his reliance on third parties justify his attempt to obtain permanent residency in Australia on the basis of false information about both his country of permanent residence and his identity including his name and age.

32. The applicant’s representative contended that the applicant has admitted to providing incorrect information and that his honesty and degree of cooperation should not be undervalued. The Tribunal acknowledges the applicant’s direct admission, but this did not occur until 28 June 2019, when he was responding to adverse information that the Department put to him. The applicant knowingly provided incorrect information to the Department that was relevant to his protection claim and maintained this incorrect information for many years and throughout various Department interviews, and only corrected it in response to investigations by the Department and after significant adverse information had been put to him about his history of repatriating money to Iran. The Tribunal gives significant weight to this factor towards cancelling the visa.

    The present circumstances of the visa holder

33. The applicant submitted that he has built a life for himself in Australia over 13 years. He has work and has met and married his wife in Australia. His wife is also waiting on a refugee application result. He is currently studying and plans to open a [business]. He has also been recently attending protests in Australia against the Iranian government.

34. The Tribunal places some weight on the applicant’s current circumstances as a factor in favour of not cancelling his visa.

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

35. The applicant applied for Australian citizenship on 16 September 2015 in which he declared a false name and date of birth, false parents’ details and false citizenship details. Then, in response to a request for further information from the citizenship delegate made on 17 August 2017 he maintained the above false identity claims. When this was discussed at hearing the applicant indicated that he felt he had no choice but that he felt bad about the further incidents of false information that he provided. The applicant continued to rely upon and reiterate his false information over a prolonged period of time and overtly and directly on two more occasions after applying for his protection visa. He has now admitted the information was incorrect however this is mitigated by the circumstances described above that indicate this only occurred after extensive investigations by the Department.

36. The Tribunal gives significant weight to this factor in favour of cancelling the visa.

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

37. The delegate records that there is no evidence of non-compliance by the applicant. The Tribunal gives this factor some weight in favour of not cancelling the applicant’s visa.

    The time that has elapsed since the non-compliance

38. The non-compliance occurred in July 2011. The Tribunal considers the long period in which the applicant has lived in the Australian community weighs against the cancellation of the visa. The Tribunal places some weight to this factor in favour of not cancelling the applicant’s visa.

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

39. There is no information to suggest that there have been breaches of the law since the non-compliance occurred. The Tribunal places some weight on this factor in favour of not cancelling the visa.

    Any contribution made by the holder to the community

40. Apart from working and paying taxes and some general volunteer work for the Iranian diaspora community the applicant made no particular submissions that he has contributed to the community other than attending the Anglican Iranian church to help out. He clarified that his wife is Anglican however he is still Muslim. The Tribunal gives this factor little weight in favour of not cancelling the applicant’s visa.

    Other factors – Departmental guidelines

    While the factors in reg 2.41 of the Regulations must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Guidelines, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

41. The cancellation of the visa would not result in any consequential cancellations under s 140 and this factor is not relevant to the decision.

    WHETHER THE BEST INTERESTS OF A CHILD WOULD BE AFFECTED BY CANCELLATION, OR CONSEQUENTIAL CANCELLATION

42. The applicant confirmed at hearing that he has no dependent children and as such this factor is not relevant to the decision.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

43. Despite the above, amendments to s 197C of the Act since the delegate’s cancellation decision render it unnecessary for this Tribunal to undertake any formal assessment of the applicant’s new claims. This is because the effect of the new s 197C(3) is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c) none of the following apply:

    (i) the decision in which the protection finding was made has been quashed or set aside;

    (ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.

44. In this case the Department found the applicant was owed protection as a refugee and granted the protection visa on 6 July 2011. In these circumstances s 197C(3) does not require or authorise his removal from Australia, unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.

45. It is relevant to note that the Tribunal’s findings about the applicant’s Iranian citizenship in the current review do not operate to set aside the protection finding that was made on 6 July 2011. Rather that protection finding will only cease to be operative if one of the circumstances set out in s 197C(3) applies.

1. In this case the protection finding made in 2011 has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2), although it is open to the Minister to do so in the future.

2. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to his removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

3. However, cancellation may lead to prolonged detention for the reasons already explained and at significant cost to the taxpayer and the Tribunal places some weight on this factor in favour of not cancelling the visa.

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

4. The applicant claims that he will be harmed if returned to Iran because his father was suspected of being an agent or spy of [Country] and because he has protested against the Iranian government in Australia. He is therefore unwilling to voluntarily return to Iran. The Tribunal discussed these claims during the hearing. When asked for some detail of his claimed detention by the Iranian authorities when he visited his father in Iran the applicant clarified that he had only been briefly questioned at the main Iranian airport on arrival and departure and had not in fact been detained as he had previously claimed in his written claims for protection. He stated this was a mistake that he had written this. They had asked about his father although he agreed his father was living in Iran. He also confirmed that his father had permanently lived in Iran after he divorced his mother and moved back there. His father had no difficulties in Iran while he lived there. His other family still reside in [Country]. The Tribunal notes that the applicant departed for Australia from [Country] where he had long resided. As such he did not depart Iran for fear of persecution. The Tribunal considers the applicant’s evidence to fear persecution for reason of his father’s profile to be highly unconvincing. This is because his father lives unharmed in Iran and the applicant was able to enter and leave Iran for the purposes of visiting his father. He appears to have merely undergone routine questioning at the airport. The Tribunal concludes the applicant is of no adverse interest to the Iranian authorities for this reason.

5. The applicant also claimed that he had participated in some protests in Australia. However, prior to exploring this claim the applicant gave evidence that he was not very active within the Iranian community. He subsequently submitted some photos and statutory declarations of his mother-in-law and wife stating that he attended some Iranian rights protests. The Tribunal discussed with the applicant that the Department of Foreign Affairs and Trade (DFAT) assesses that:

   Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.

   International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[1]

   [1] DFAT Country Information Report, Iran, 14 April 2020, p.70

6. The Tribunal put to the applicant that his evidence reflects low-level participation in protests in Australia. The applicant responded to the DFAT assessment that the reality in Iran is different to the DFAT assessment. In this instance the Tribunal prefers the DFAT assessment and concludes that the applicant’s low-level protest activities in Australia, as reflected by his initial evidence that he is not very active in the Iranian community, would not result in him being of adverse interest to the Iranian authorities.

7. The Tribunal therefore accepts that if the applicant’s visa is cancelled he will need to depart Australia to avoid a likelihood of being subject to indefinite detention in Australia. The Tribunal considers that there are no real obstacles for the applicant to return voluntarily to Iran and that by doing so he would not be detained in Australia. The applicant has not been able to credibly establish a reason why he cannot return to Iran.

8. Given the Tribunal is satisfied that the applicant can return to Iran and avoid indefinite detention here the Tribunal views the potential hardship to him of indefinite detention to be a neutral factor.

9. In addition, if the applicant’s visa remains cancelled, he may face prolonged separation from his wife which the Tribunal accepts would cause hardship and which the Tribunal gives some weight against cancellation of the visa.

   Conclusions

10. While the Tribunal is required to have regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case, rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[2]

    [2] MIAC v Khadgi (2010) 274 ALR 438 at [68]

11. The Tribunal has considered the factors which weigh in favour of cancelling the visa, most significantly that the applicant knowingly provided the incorrect information about his Iranian citizenship, his identity and his age in his protection visa application in order to increase his likelihood of being granted that visa. The granting of the visa was based wholly on his claim to be stateless and associated entirely false evidence and the Tribunal considers that had the correct information been known, he would not have been granted the protection visa. Further the applicant continued to assert the incorrect information as correct right through to his lodgement of an Australian citizenship application in 2015 and again in August 2017 in response to queries by the citizenship delegate. It was only in June 2019 after significant investigations by the Department had uncovered evidence that directly contradicted the applicant’s claimed identity that he provided the correct information as to his age, name and Iranian citizenship. While the applicant now appears to be giving truthful evidence it appears this is primarily as a result of the Department’s investigative work and not because the applicant now feels bad about his past behaviour. Finally, the degree of hardship to the applicant caused by the prospect of indefinite detention has been weighted neutrally due to the Tribunal’s assessment of the applicant’s ability to voluntarily return to Iran.

12. The Tribunal has also considered the factors which weigh in favour of not cancelling the visa, most significantly that he has been resident in Australia and that he has established a productive life for himself in Australia without further breaches of the law and he now has a wife living in Australia with him who will be adversely affected by the cancellation decision. In addition, at the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As the 2011 decision finding he engages Australia’s protection obligations was finalised at that time, he cannot now be involuntarily removed from Australia unless Australia’s protection obligations towards him are reassessed under the new provision set out in s 197D and he is found to be no longer owed protection by Australia and may therefore be subject to indefinite detention at a considerable cost to the Australian taxpayer.

13. The Tribunal concludes that the significant level of material and sustained non-compliance by the applicant with respect to his obligations under Australian law to provide truthful evidence with respect to his identity and claims for protection outweigh the factors in favour of not cancelling his visa. The applicant’s non-compliance is a matter going to the integrity of the migration system and protection visa scheme.

14. In summary and on balance the Tribunal considers that the factors which weigh in favour of exercising the discretion to cancel the applicant’s visa outweigh those which do not.

15. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

16. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Paul Noonan
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.