2208583 (Migration)

[2023] AATA 3254

2208583 (Migration) [2023] AATA 3254 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Roya Majd (MARN: 0701239)

CASE NUMBER:  2208583

MEMBER:Sean Baker

DATE:4 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2023 at 11:47am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect information provided in protection visa application – not stateless Faili Kurd but Faili Kurdish Iranian citizen – advice from people smugglers –information repeated in Australian citizenship application – discretion to cancel visa – citizenship conceded but claim of fear of harm maintained – length of residence, education, work, community activities – de facto relationships, marriage to Australian citizen and estrangement from family – mandatory legal consequences, non-refoulement and possible indefinite detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41

CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
MIAC v Khadgi (2010) 190 FCR 248
1901883 (Refugee) [2021] AATA 3216

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the delegate found that the applicant had given incorrect answers in her visa application, and that the reasons for cancellation outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 July 2023 via videolink to give evidence and  present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review.

4. 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

5. 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.

6. 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.

7. 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.

   Non-Disclosure Certificate

8. As a preliminary matter the Tribunal notes that it has before it the applicant’s Departmental file relating to the cancellation of her protection visa. The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing a certificate under s375A of the Act, dated 7 July 2023. This states that disclosure of some information within the Department’s cancellation file would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

9. I have some doubts about whether the above descriptive phrase sufficiently supports a public interest reason to ground the power under s 375A. However, in this case I am willing to accept that the specified information should not be disclosed explicitly to the applicant or anyone else, although it might perhaps have been more coherent if the information were considered as third party information and not disclosed due to privacy considerations.

10. I am willing to accept in this case that the certificate is valid and the information has not been disclosed to the applicant. I note however that this information was generally known to the applicant after the issue of the s 107 notice and the decision record.

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

11. 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.

12. On 26 February 2022, the applicant was sent a copy of the s 107 Notice of Intention to Consider Cancellation (NOICC) which advised the applicant that her visa may be cancelled under s109 because of concerns that she did not comply with s 101(b) of the Act. She was advised to respond in writing.

13. The non-compliance identified and particularised in the s109 notice was that the applicant had provided incorrect information in relation to her protection visa application by claiming she was stateless (Faili Kurd), whereas subsequent information before the delegate led them to conclude she was an Iranian citizen at the time of the protection visa application.

14. The s109 notice in the applicant’s case includes information of a number of relatives who reside in Australia, including the applicant’s paternal aunt and her aunt’s family, the applicant’s siblings and cousins. The notice indicates that the applicant’s brother arrived in Australia as an IMA [in] March 2013, claiming to be an undocumented Faili Kurd. Despite these claims, the applicant’s brother presented an Iranian identification document to a New South Wales government agency. This document included the details of the applicant’s father, and an Iranian National ID number which indicated he was a citizen of Iran.

15. Further, one of the applicant’s paternal cousin’s, arrived in Australia [in] March 2013. He is the son of the applicant’s father’s brother. The Department obtained a copy of his Iranian birth certificate, which confirmed his parents were Iranian citizens. In addition, the applicant’s aunt, also provided the Department with Iranian documentation, namely an Iranian Shenasnameh (Iran identification booklet). The country information relied upon by the Department indicates that a Shenasnameh is only issued to Iranian citizens at birth and includes the details of the holder’s parents and their Shenasnameh numbers. This confirmed that her paternal aunt is an Iranian citizen.

16. On 20 January 2021, the applicant was invited to comment on the information relating to her close family members’ Iranian identification documents and citizenship status and the fact that country information suggests that her paternal relatives are Iranian citizen, suggesting that she is also an Iranian citizen. The applicant’s migration agent responded on her behalf on 22 March 2021, stating that she is a Faili Kurd, is not stateless and does obtain identity documents. Her family also held Iranian identity, which therefore makes her an Iranian citizen.

17. On 4 January 2022, the applicant lodged a further application for conferral of Australian citizenship. In this application, the applicant declared her citizenship to be Iranian. The applicant also declared her father to be an Iranian citizen since birth. The applicant provided the following documents in support of her identity:

    ·     A translated copy of her Iranian National Identity Card; and

    ·     A translated copy of her Iranian Birth Certificate.

    Response to the NOICC

18. The applicant’s representative provided to the Department a written submission dated 15 March 2022 in response. The following documents were provided:

    ·     A signed statement by the applicant dated 15 March 2022;

    ·     Copy of the applicant’s Australian Red Cross blood donor card;

    ·     [Organisation] [Subject 1] certificate, dated 31 May 2017;

    ·     Certificate III in [Subject 2], dated 6 June 2014.

    ·     [College] Certificate of competency- [Work skill], dated 5 April 2017;

    ·     Certificate of Attendance- [City Council] Community Education Program, dated 30 October 2012;

    ·     [Institute], Statement of Attainment, dated 11 February 2017; and

    ·     [Employer Work] Program – evidence of visa holder’s high-performance ranking in employment.

19. In the applicant’s written statement dated 15 March 2022, she conceded she had provided some incorrect information with her protection visa application. She indicated that this false information was based on the negligent advice given to her by the people smugglers during her travel to Australia. She claimed to be new to Australia and did not have much knowledge of Australian law and legal processes and did not understand the gravity of providing the incorrect information. She also stated that the only person she could trust at that time was the people smuggler.

20. Further, it was stated that the only incorrect information provided by the applicant was in relation to the identity documents of herself and her family. Everything else provided in her application was truthful, and she fears harm returning to Iran for those reasons.

21. In her response she noted her current circumstances and the potential impact the cancellation of her visa would have on her and her family members. The applicant’s personal circumstances include:

    ·     “I have been living in Australia for the past 11 years. During these years, I have worked hard and have done my very best in everything I have been involved in.

    ·     I have worked full time for a number of years and always very successful as [an Occupation] ranking first [Occupation] amongst the city [Workplaces] every month for 6 consecutive years in the city [Workplaces]. I also achieved first rank in the whole state of NSW and ranked 17th nationally as a marketing sales representative, top-sale [Occupation].

    ·     In 2022 I started studying diploma of [Subject 3] and I am currently a full-time student.

    ·     Upon graduation, I hope to move to regional area where I can provide services to those in need in the area and I also dream of creating jobs in the regional area”

22. The applicant also stated that she is part of a [cultural] group in the Persian community in Sydney and has participated in numerous cultural [events] over the past few years. She states that these [events] are important because they aim to empower women in the community and give them important roles. She is also a regular blood donor with Red Cross.

23. The applicant also stated that she had also been in a de facto relationship for the past 14 months and has been in other relationships. She provided that this is not acceptable in Faili Kurd tribes or in an Islamic society and amongst the religious families. She also indicated that her cousin told her father she is a shame to the family and that if they ever see her, they will kill her. She has stopped communicating with them.

24. The following documents were also provided to the Department:

    ·     Protection Obligations Determination Application including submissions dated 11 December 2011, the applicant’s statement of claims dated 11 December 2011, and the applicant’s statutory declaration dated 11 December 2011.

    ·     Applicant’s first citizenship application including the applicant’s response to comment on adverse information for Australian citizenship dated 22 March 2021, a copy of the applicant’s birth certificate, and a copy of the applicant’s national ID card.

25. On 08 June 2022, the delegate decided to cancel the applicant’s Subclass 155 visa. In the decision record, the delegate noted the matters set out in the s109 notice and concluded that the applicant did not comply with s101(b) of the Act by providing incorrect answers to questions 20, 22, 23, 24, 42, 43, 44, 45, 46, 47, and 48 of Form 866C in the application for a protection visa.

26. The delegate considered the applicant’s response and the following circumstances:

    ·     The applicant stated in her NOICC response that she provided this false information based on negligent advice she received from people smugglers, during her travel to Australia;

    ·     The applicant acknowledges she signed forms declaring in her Protection visa application that the information provided was truthful and correct;

    ·     The applicant claims to have not understood the gravity of providing incorrect information;

    ·     The applicant was [Age] years of age upon arrival to Australia and would have realised she provided incorrect information about her citizenship status and whether she was a documented citizen of Iran, was incorrect or not;

    ·     The applicant agrees that the grant of her visa was based partly on incorrect information, being the identity documents of both her and her family. However, claimed she did leave Iran for all the reasons stated in her Protection visa application, and does fear harm returning to Iran for those reasons;

    ·     If the delegate assessing the Protection visa application had been aware of the correct information, this may have led them to further explore those reasons for leaving Iran, and/or potentially reaching a different conclusion;

    ·     The applicant also had sufficient time to confirm the information in her statement of claims was true and correct, prior to lodgement of her Protection visa application;

    ·     The applicant is in a de facto relationship and there may be some financial or emotional hardship to her partner;

    ·     The applicant is employed full-time and studying;

    ·     Applicant has completed several training courses and would have developed some economic ties to Australia;

    ·     The incorrect information provided by the applicant was reiterated in her application for conferral of Australian citizenship on 14 September 2016;

    ·     Applicant has learnt the English language and considers Australia to be her home;

    ·     The applicant has assimilated into the Australian community and has paid taxes over the years through the course of her employment;

    ·     Applicant belongs to a [cultural] group within the Persian community and participates in activities including cultural [events] around Sydney;

    ·     The applicant is also a blood donor with Red Cross;

    ·     The applicant left Iran because she was a woman, who felt fearful of her life. Her de facto relationship in Australia would not be acceptable in Faili Kurd tribes or in an Islamic society and amongst the religious families. Her family are extremely traditional, and some members have threatened to kill her;

    ·     The applicant stated in her NOICC response, she is not a Muslim and does not want to live in Iran where she would be forced to follow Islamic practices;

    ·     The applicant will not be able to apply for another visa while in Australia, including a Protection visa;

    ·     The applicant may be subject to Public Interest Criterion (PIC 4013);

    ·     The applicant would become an unlawful non-citizen and would be liable for immigration detention and removal.

    ·     The delegate recorded that, having weighed all the relevant factors, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

27. The applicant provided documentation to the Tribunal, set out and discussed below.

28. At the hearing the applicant conceded that she and her family are Iranian citizens and not stateless as claimed in her protection application. She maintains that she suffered the experiences detailed in her claims.

29. On the information before me I find that the applicant provided incorrect information in her protection application in relation to her citizenship and that of her immediate and wider family.

30. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice in relation to the questions about her and her family’s nationality and statelessness. I do not accept the reasoning and conclusions of the delegate in relation to the incorrectness of the applicant’s past experiences and reasons for fearing harm on return.

    Should the visa be cancelled?

31. 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).

32. 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).

33. The prescribed circumstances are set out in reg 2.41 of the Regulations.

    the correct information

34. The correct information is that the applicant and her family are Iranian citizens and are not stateless. The applicant was born in Iran as a citizen and holds Iranian documentation. The applicant provided this information to the Department. She conceded that she had provided incorrect information in her protection application and that she had done so on the negligent advice of the people smugglers. Both at the Department and before me the applicant expressed a level of regret for providing the incorrect information. However, the conduct in providing incorrect information is serious because the protection visa regime relies on applicants being truthful about their experiences and national status. Not being truthful in visa applications weakens the visa regime and may, at its most extreme, impact on community support for migrants and those owed protection being able to come to and live in Australia.

35. I give this consideration significant weight in favour of cancelling the visa.

    the content of the genuine document (if any)

36. Not relevant.

    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

37. I accept the information set out in the delegate’s decision that the decision to grant the applicant her visa was based, at least in part, on a finding that the applicant was stateless, and this finding was relied on to conclude that the applicant was owed the protection visa.

38. Whilst there is some suggestion that the visa may have been granted if the applicant had been truthful and claimed to be a documented Kurd subjected to discrimination and harm on this basis as well as the reasons she provided in her protection application for the specific harm she feared, it is not possible to determine whether this would have been the case.

39. I give this consideration significant weight in favour of cancelling the visa.

    the circumstances in which the non-compliance occurred

40. As above, the applicant has claimed that she was given negligent advice by the people smugglers to provide the incorrect information and told she would not be accepted if she did not do so. She also explained that she was unaware of Australian laws. I accept these claims, and I have considerable sympathy for the situation the applicant would have been in.

41. However, the applicant would have been, or could reasonably be expected to have been aware that a fundamental requirement in any process with as much significance as the protection regime is the duty of candour. By providing the incorrect information she did not meet this standard.

1. Therefore, despite the understandable reasons why she felt compelled to not tell the truth, the obligation to be truthful outweighs this and means that I must give this consideration significant weight in favour of cancelling the visa.

   the present circumstances of the visa holder

2. At the hearing I had the opportunity to speak with the applicant about her current situation. The applicant has lived in Australia for over ten years. She has been working as [an Occupation 1]as well as studying to be [an Occupation 2]. She was unable to continue studying after the visa was cancelled. Approximately a year ago she married her Australian citizen partner. She is suffering symptoms of depression. She described her concern and anxiety at the continuing uncertainty of her life after her visa had been cancelled.

3. I accept that the cancellation has had a significant impact on the applicant, and I give this consideration some weight towards the visa not being cancelled.

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

4. As is noted by the delegate, the applicant, once the incorrect information was raised with her by the Department, conceded the incorrect information and engaged with the Department.

5. I give this consideration a little weight in favour of the visa not being cancelled.

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

6. The delegate’s decision states there were no other instances of non-compliance. However, I note that the applicant continued to claim to be stateless and not have citizenship of any country in her application for Australian citizenship conferral in 2016. No other instances of non-compliance are before me. I give this factor some little weight towards the visa being cancelled.

   the time that has elapsed since the non-compliance

7. As noted by the delegate, the non-compliance occurred over ten years ago. In this time the applicant has established considerable ties with Australia, including marrying an Australian citizen, her work and study. The applicant gave evidence at the hearing that she considers herself Australian.

8. The delegate notes that the applicant had opportunity to provide the correct information to the Department. Whilst I consider this to be the case, this has been considered above.

9. In considering this factor and the weight to be given to it I am conscious that the applicant provided incorrect information and that this was a serious instance of non-compliance given the information went to whether the visa would be granted, and that the visa was a permanent visa.

10. But the very considerable time that has elapsed since the non-compliance argues against the cancellation of the visa. It appears that, the applicant having lived in the Australian community for such a long period of time as a full member of that community suggests that cancellation would be disproportionate and unfair. Disproportionate in the sense that for the applicant she has made a life for herself in Australia in the belief that she would remain here indefinitely given she was granted a permanent visa, and unfair in the sense that the non-compliance having occurred so long ago, it is difficult for the applicant to provide specific information about her state of mind, her motivations, and any supporting documents she may have then had.

11. I give this consideration some weight towards the visa not being cancelled.

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

12. The delegate notes that there is no evidence of the applicant having been charged or convicted to date. There is no information before me that this has changed since the cancellation decision.

13. I give this consideration a little weight towards the visa not being cancelled.

    any contribution made by the holder to the community

14. The applicant has contributed to the community through her work and intends to contribute through her study in [Subject 3].

15. The applicant is a member of a Persian [cultural] group which practices in [a Venue] in Sydney and focuses on empowering women.

16. I give this consideration some weight in favour of the visa not being cancelled.

    Further relevant considerations

17. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    whether there would be consequential cancellations under s 140

18. The delegate notes that the applicant’s Resident Return visa did not have any secondary applicants associated with it. As noted above, the applicant’s immediate and other family have had their visas cancelled, but this was not on the basis of a s 140 cancellation in relation to the applicant’s visa.

19. I therefore give this factor no weight either for or against cancellation.

    Are there children whose interests would be affected by the cancellation?

20. There is no information before me that the applicant has any children or that any children’s interests would be affected by the cancellation.

21. I therefore give this factor no weight either for or against cancellation.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

22. In relation to this factor, I have had regard to the decision of the Tribunal (differently constituted) in 1901883.[1] That case helpfully discussed the amendments to the Act of ss. 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen who has an extant protection finding, such as the applicant, unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to her prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to her removal, there being an intervening step.

    [1] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

23. But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, the corollary of the view expressed above that the applicant would not as a consequence be removed, necessarily demonstrates that cancellation may lead to prolonged detention. I have discussed this in more detail below.

24. On the basis of the discussion above, removal in breach of Australia's non-refoulement obligations would not be directly engaged by the cancellation. I therefore give this factor no weight in favour of the visa not being cancelled because this factor does not impact on the situation of the applicant if the visa is cancelled or reinstated.

    Any mandatory legal consequences

25. If the visa remains cancelled, the applicant would be barred from making any other visa applications without the Minister lifting the relevant bars or granting a visa to a person in immigration detention. These are non-compellable powers and there is no indication the Minister is inclined to take any of these actions, so I have not considered this further in this assessment. As the delegate notes, the applicant may also be subject to PIC 4013.

26. The applicant would be unlawful and would be detained (s 189). This is a certain consequence of the visa remaining cancelled, required as it is under the Act.

27. The question then arises – would the applicant depart to Iran, her country of nationality, and therefore not remain in detention? Her evidence is and has consistently been that she would not do so voluntarily. The applicant was clear at the hearing that she could not return to Iran because she feared harm there, sees herself as Australian and is married to an Australian citizen. I find that the applicant would not, voluntarily, return to Iran.

28. There is no prospect of the applicant being forcibly returned to Iran. The Iranian regime, by longstanding policy, has refused to involuntarily return citizens if they arrived prior to 19 March 2018: CLS15 v Federal Circuit Court of Australia [2017] FCA 577.

29. I accept therefore that the applicant faces the very real prospect of ongoing, indefinite detention if the visa remains cancelled. I have had regard to a large body of research that indicates that prolonged detention has a serious impact on mental health, indicating that those detained suffer high levels of mental health problems, that these are higher than in non-detained asylum seeking populations, and that duration is positively associated with severity of mental health symptoms.[2] Indefinite detention appears from this body of research to have a high likelihood of being associated with the applicant suffering very considerable damage to her mental health and/or developing further severe mental health symptoms over a period of detention which is long term and indefinite in duration. The continued cancellation therefore would lead to long term mandatory detention, which I accept would have a significant, serious impact on the mental health of the applicant.

    [2] Australian Medical Association, Background to AMA Position Statement Health Care of Asylum

30. I therefore give this factor very significant weight in favour of the visa not being cancelled.

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

31. The cancellation has seriously impacted the applicant. The applicant has had her ability to study and interact with the community curtailed. At the hearing and in submissions it is clear that the cancellation of her visa has impacted on her ability to live within the community and to enjoy the freedoms of life in Australia. I accept that the applicant has also suffered some symptoms of depression, in part because of the cancellation of her visa.

32. Having regard to the information before me I find that the applicant has experienced hardship in the cancellation of the visa.

33. If the visa remains cancelled, these harms would be compounded, she would be unable to live with her Australian citizen husband and this would cause what I consider significant hardship to the applicant. Therefore, I give this factor significant weight towards the visa not being cancelled.

    Consideration and conclusion

34. I have carefully assessed the applicant’s claims and circumstances. I have set out above my considerations and explained why I have weighted the factors the way I have. I have had careful regard to the findings of the cancellation delegate.

35. In this case, the likelihood that the applicant would face long term, indefinite detention and her circumstances having married an Australian citizen  militate most significantly against cancellation. When considered with the current circumstances of the applicant, and her contribution to the community, these weigh strongly against cancellation.

36. The breach here is significant. As noted above, there are potentially profound consequences of applicants being untruthful.

37. However, in this case, the very serious impact that cancellation would have on the applicant, most significantly her indefinite detention, and the effect that would be very likely to have on her mental health, overwhelmingly outweigh the factors in favour of cancellation.

    Conclusions

38. :The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

39. 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.

    Sean Baker
    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.

    
    

Seekers and Refugees – 2011. Revised 2015, von Werthern, M., Robjant, K., Chui, Z. et al. The impact of immigration detention on mental health: a systematic review. BMC Psychiatry 18, 382 (2018).