Abas (Migration)

Abas (Migration) [2019] AATA 4505 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ghulam Abas
CASE NUMBER:  1726708
DIBP REFERENCE:  BCC2017/199665
MEMBER:Rosa Gagliardi
DATE:9 August 2019
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 09 August 2019 at 11:54am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – existence of near relative – consideration of discretion – secondary applicant in uncle’s Remaining Relative visa application – lack of involvement at time of application – non-refoulement obligations – Shiite Hazara – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that a visa was granted to the visa holder on the basis of incorrect information provided to the Migration Review Tribunal (MRT) on 7 May 2008 by the visa holder’s uncle, Bahram Ali Sanaee. For this reason this decision needs to be read in conjunction with Decision: 1726685 relating Mr Bahram Ali Sanaee which sets out the circumstances in which the non-compliance occurred.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
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. There have been no issues in relation to compliance with the requirements by the visa holder.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance in the following respects:
The visa holder’s uncle, Bahram Ali Sanaee, at a hearing of the MRT held on 7 May 2019 told the Tribunal, as it was then constituted, that his brother, Ghulam Sakhi, (father of the visa holder) was deceased enabling Mr Bahram Ali Sanaee to obtain a Remaining Relative visa subclass 115 on the basis of that incorrect information. The visa holder subsequently was granted a subclass 155 (Resident Return visa).
Subsection 101(b) provides:
A non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.
Pursuant to section 100, information is incorrect even though the person did not know that it was incorrect:
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.
Further section 99 provides:
Any information that a non-citizen 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.
At the time of the hearing, however, Ghulam Sakhi, was alive and living in Australia at residences found to be the same residence at which Bahram Ali Sanaee was living. The migration agent has submitted substantial submissions asserting that it was only after May 2010 that he became aware that his brother Ghulam Sakhi was alive. For the reasons set out in decision 1726685 the Tribunal does not accept these submissions.
In terms of the visa holder himself, the Tribunal accepts that the MRT’s decision of 16 May 2008 confirms that the visa holder did not even provide evidence to the MRT at the hearing held on 7 May 2001.
While the visa holder’s awareness of the provision of incorrect information may be relevant to the considerations under r.2.41, it is not relevant to the Tribunal’s consideration of whether or not there was a breach. The Tribunal has found that Bahram Ali Sanaee did provide incorrect information to the Tribunal on 7 May 2008.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Migration Act by the applicant in the way described in the s.107 notice.
Background
The visa holder was born in July 1991 and is 28 years of age. His parents are Ghulam Sakhi and Fatima. It is claimed that the visa holder has four brothers and two sisters although one sister is not a biological sister but was adopted by the visa holder’s parents before he was born. The visa holder’s father and brother (Mohammad Hussein) live in Australia and the rest of his siblings and mother live in Quetta.
The visa holder married his wife, Bibi Sanaee, in 2012 in Pakistan. They have a four year old son, Irfan. Bibi and their son are currently in Pakistan. The visa holder’s wife was granted a Partner visa on 7 March 2014. However, the Department was not advised of the birth of Irfan before the visa was granted and the child was therefore not granted a Partner subclass 309 visa. The Department is currently processing an application to include Irfan in this subclass 309 visa.
The visa holder has declared, and the Tribunal accepts, that he grew up in Quetta, Pakistan. It is claimed that he had no legal status in Pakistan as an Afghani national and had no way of regularising his status there. For reasons explained later in this decision, the Tribunal is not satisfied that the visa holder was an illegal refugee in Pakistan as other evidence points to his father, Ghulam Sakhi, being a Pakistani national, even if the Tribunal accepts that he is of Afghani heritage.
The visa holder has stated in his statutory declaration that his parents wanted to go on a religious pilgrimage to Ghazni, Afghanistan. The visa holder and his brother travelled with their parents there, while the rest of the children remained in Pakistan. At that stage the visa holder was 12 years of age. He claims that on the day his parents went to the pilgrimage, the visa holder and his brother stayed with friends. He then found out his parents had been in an accident and he claims that he went to live with his uncle, Mr Bahram Ali Sanaee.
It emerged later, however, that the visa holder’s father was alive and that this fact had been concealed from the Department to enable Mr Bahram Ali Sanaee and other members of his family to achieve a migration outcome to Australia. As a result on 15 April 2010 the Department granted Bahram Ali Sanaee, his wife, children and nephews, Remaining Relative visas (subclass 115).
At the time of application for the Remaining Relative visa by Mr Bahram Ali Sanaee the Tribunal notes that the visa holder was 15 years of age.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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.
The correct information
The correct information that should have been provided to the MRT on 7 May 2008 was that Bahram Ali Sanaee’s brother, Ghulam Sakhi (the visa holder’s father) was alive and living in Australia. Ghulam Sakhi did not die in a road accident in a village in Afghanistan as the visa holder holder’s father, stated in his application.
The migration agent has also argued that the actual breach was in fact a failure on the part of Bahram Ali Sanaee to notify the Department of the incorrect information once he learned that it was incorrect. As the Tribunal does not accept that Bahram Ali Sanaee coincidentally came to find out his brother was alive when he was at a bazaar in Quetta, and that he happened to bump into Ghulam Sakhi there in May 2010, the Tribunal does not accept this contention.
The Tribunal places significant weight, however, on the fact that the visa holder was only 15 years of age at the time of the provision of the incorrect information and actually played no part in its provision to the MRT hearing held on 7 May 2008. The decision which was remitted back to the Department stating that Bahram Ali Sanaee and his family met the criteria, does not indicate that the visa holder gave evidence at that hearing.
In terms of what the visa holder may have told the Department, the Tribunal does not have evidence of what occurred at the time and it is unlikely that the Tribunal will be able to determine the precise nature of the interaction between the visa holder and the Department at such a lengthy time out from those events. Further, it is noted that the migration agent sought the primary decision file regarding the grant to the family of the Remaining Relative (subclass 115) visas [OSF2007/022276] under Freedom of Information. The Department wrote back to the agent stating, among other things, “Unfortunately, the original application file was destroyed in a fire in Dubai. We do not have the completed application form nor any of the supporting docs, statements, additional forms etc that were supplied with the application, nor do we have any assessment notes or interview transcripts”.
In these circumstances, it is difficult for the Tribunal to find adversely against the visa holder in terms of his intention to mislead or otherwise at the time of application (although intention is irrelevant in the Tribunal’s considerations). In any event the NOICC was restricted to the incorrect information provided at the hearing held on 7 May 2008 to the MRT.
The content of the genuine document (if any)
Not applicable in this case.
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
The Tribunal finds on the basis of Mr Bahram Ali Sanaee’s marred credibility (as set out in Decision: 1726685 that the grant of the visa was based wholly on incorrect information provided at an MRT hearing held on 7 May 2008.
It would be unreasonable, however, to visit Bahram Ali Sanaee’s breach on the visa holder who was only 15 years of age at the time his uncle was making preparations to file a Remaining Relative visa and the Tribunal places significant weight on his lack of involvement in the provision of false information at the time of application and at the time of the hearing. This is particularly so, as as a nephew, the visa holder was removed from his uncle’s nuclear family.
The circumstances in which the non-compliance occurred
Bahram Ali Sanaee’s conduct in denying the existence of his brother Ghulam Sakhi was an attempt by him to achieve a migration outcome. The incorrect information provided to the MRT in May 2008 occurred in the context of Bahram Ali Sanaee having also provided the Department in his application with incorrect information to meet the criteria for a subclass 115 visa. Furthermore, it seems he had been involved in providing incorrect information to assist others gain a migration outcome.
Nonetheless, the Tribunal does accept that the visa holder was a child for much of the period under consideration (only as detailed in the NOICC) and took no part in his uncle’s Bahram Ali Sanaee’s transgressions against the immigration system. The Tribunal places significant weight on this matter.
Present circumstances of the visa holder
It is submitted that the visa holder’s extended family members, in the way of Mr Bahram Ali Sanaee, his uncle, aunty, four cousins, brother and two nieces, would suffer extreme and irreversible harm should the visa cancellation decisions not be set aside.
Policy in this cohort of cases also requires a decision-maker to consider the following four matters:
·If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the bests interests of the children;
·Australia’s international obligations;
·PAM3: Compliance and Case Resolution – Case Resolution – Guiding principles – Treatment of children; and
·Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment.
The Tribunal is also required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether upon cancellation a person would become an unlawful non-citizen.
The Tribunal considers that there is no reason why the visa holder at 28 years of age could not be separated from his parents, siblings, cousins and nieces. Nonetheless, there are other factors that are in the view of the Tribunal compelling in terms of the ramifications were this visa to be cancelled.
The Tribunal accepts that the visa holder has been working in Australia (evidence sighted) and that he is contributing to the community. The Tribunal has also taken into account that the visa holder has been in Australia for more than years and has integrated in Australia even though the means by which he came to the country were based on incorrect information given by a third party to the Tribunal on 7 May 2008.
Non-refoulement obligations
The visa holder claims to be an Afghani national but there is some doubt about whether the visa holder does not in fact have the ability to enter and reside in a third country. Information held by the Department advises that according to records of the Pakistan National Database and Registration Authority (NADRA), the visa holder’s, father, Ghulam Sakhi and the visa holder’s brother, Ghulam Rezi (also son of Ghulam Sakhi) holds a valid Pakistan Computerised National Identity Cards (CNICs) and are therefore citizens of Pakistan. Both Ghulam Sakhi and Ghulam Reza claim that their CNICs were acquired fraudulently, but as the records of the NADRA show their CNICs to be valid, the Tribunal does not accept that these cards were acquired fraudulently.
It is likely therefore that the visa holder is a Pakistani national by descent. Section 5 of the Pakistani Citizenship Act 1951 states, “Subject to the provision of section 3, a person born after the commencement of this Act shall be a citizen of Pakistan by descent if his parent is a citizen of Pakistan at the time of his birth”.
The Tribunal therefore assesses the risks the visa holder might encounter if his visa were cancelled and he were returned to the country the Tribunal finds he has the right to enter and reside: Pakistan.
The Tribunal has regard to the treatment of Hazaras in Pakistan, particularly Quetta where Hazaras leaving Afghanistan live, regardless of whether or not they are Pakistani citizens. The country information indicates that Hazaras in Pakistan generally have been targeted by extremists for practising their faith.
Hazaras in Pakistan are easily identifiable in terms of their features and whether they are citizens or not is of no consequence to extremists.[1] Home grown terrorist groups view Shiites as apostates, such as the Sunni jihadist group Sipah-e-Sahaba Pakistan, which spawned a virulent offshoot known as Lashkar-e-Jangvi (LeJ).[2] The current government is publicly expressing support for the Hazara community and has offered to improve security, however, as expressed in an article:
High walls around the neighbourhoods of Pakistan’s embattled Hazara community in Quetta are designed to protect them from extremist militants, but also serve as a constant reminder of the threat they face.
Soldiers and security checkpoints greet visitors to Hazara town, one of two large guarded neighbourhoods in the capital of Baluchistan, where religious and sectarian groups often target the mostly Shia Hazaras with bombs and guns.
Despite improved security in recent years, partly because most Hazaras have moved in the guarded enclaves, hardline militants keep up attacks….[3]
[1]
[2] ‘Pakistani Hazaras face a constant threat of targeted violence. Many say the security response has been ghettoizing and ineffective’, Sabrina Toppa, Global Post, 31 May 2018, accessed on 30 July 2019.
[3] “’Under siege’: Fear and defiance mark life for Pakistani’s Hazaras’”, accessed on 30 July 2019.

Further:
“We are living under siege for more than 1-1/2 decades due to sectarian attacks” said Sardar Sahil, a Hazara lawyer and rights activist.
“Though all those checkposts were established for our security, we feel we were ourselves cut off from other communities”.[4]
[4] Ibid;
The year 2018 saw several attacks on Hazaras by way of isolated shootings in Pakistan with two persons of Hazara ethnicity being shot in Quetta in March.[5] In April 2018 gunmen attacked a vehicle in Quetta, killing a member of the Shia Hazara community [6] and later that month a shopkeeper in the Shia Hazara community was shot and killed [7]. On 28 April two other shopkeepers in the Hazara community were shot and killed in Quetta.[8] Attacks were not limited to these instances.
[5] ‘Pakistan: A Shia Muslim martyred, other injured in terrorist attack in Quetta’, Pak Tribune, 10 march 2018, accessed on 30 July 2019.
[6] ‘Hazara man shot dead in Quetta”, The Nation, accessed on 30 July 2019.
[7] ‘Hazara shopkeeper gunned down in Quetta’, DAWN.COM, AP, 18 April 2018.
[8] ‘Two killed in sectarian attack in southwest Pakistan:police’, Gul Yousafzai, accessed on 30 July 2019.
More recently in April 2019 in an attack on Hazaras in Quetta 20 persons were killed and dozens more were injured as a suicide bomber disguised as a labourer exploded himself at a vegetable market.[9]
[9] ‘20 Killed in Quetta attack on Hazaras, Agencies, 13 April 2019, accessed on 30 July 2019.
Other areas in which extremists operate and have been known to target Shiite Hazaras is in Lahore, Peshawar and Sehwan.
The Tribunal also accepts that his wife and child would have a better future in Australia where they would not need to fear harm (assuming that the visa holder’s child is indeed his biological child).
The Tribunal places significant weight on the country information which indicates that the visa holder would face a real chance of harm if returned to Pakistan by virtue of his Shia religion and his Hazara ethnicity.
In terms of whether the visa holder and his family were to return to Afghanistan, the Tribunal has sighted the extensive country information submitted in the migration agent’s submission, however, the Tribunal has found that the visa holder has a right to enter and reside in Pakistan.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The visa holder has not admitted to any wrong doing in terms of providing the MRT with incorrect information regarding the claimed death of his father, Ghulam Sakhi. The Tribunal accepts that as a 15 year old female the visa holder was not in a position to influence the provision of correct information to the Department, given his uncle, Bahram Ali Sanaee, would have taken control of the migration process for their family.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal notes that after arriving in Australia, the visa holder provided to the Department a Form 888, dated 21 October 2012 in support of his parents’ spousal relationship, being Ghulam Sakhi and Fatima, but he did not disclose that in fact he was the parties’ son. While the visa holder may not have directly provided incorrect information to the MRT on 7 May 2008, he certainly knew that his father was alive while the visa holder was living overseas before he was immigration cleared into Australia. In this sense, the visa holder is culpable and the Tribunal places negative weight on this matter.
Time that has elapsed since the non-compliance
The non-compliance occurred some ten years ago now by the visa holder’s uncle. The visa holder and his extended family have become a part of Australian society over several generations. The delegate when deciding to cancel the visa conceded that ten years was indeed a lengthy period of time. Of itself, the time a visa holder may have spent in Australia due to the provision of incorrect information may play no role in persuading a decision-maker that a visa ought not be cancelled. The Tribunal considers, however, that the initial provision of incorrect information was initiated by the visa holder’s uncle.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of Australia’s laws in terms of its criminal laws or generally.
Conclusion
The Tribunal has carefully weighed the adverse information against the evidence under r.2.41. The Tribunal has found, however, that in view of members of the Hazara community having a long history of being displaced and subject of war, both in Afghanistan and then Pakistan, the Tribunal has decided that no good purpose would be served by uprooting contributing members of the community who have lived here for a significant period and returning them to a country (Pakistan) where they would essentially be required to live in segregation and under constant threat of attack by extremists; an action that would be in breach of Australia’s non-refoulement obligations.
Accordingly, 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. Having said this it goes without saying that any future applications made by this family in future will come under greater scrutiny.
Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Rosa Gagliardi
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.

‘The Trouble with being Hazara in Pakistan’s Quetta city’ Syeda Sana Batool, Mariam Ahmed,
4 April 2019, accessed on 30 July 2019.

[2019] AATA 4505

9 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction