Javid (Migration)

[2022] AATA 130

Javid (Migration) [2022] AATA 130 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yahya Javid

CASE NUMBER:  2007145

HOME AFFAIRS REFERENCE(S):          BCC2017/1772004

MEMBER:Michael Cooke

DATE:17 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 17 January 2022 at 3:28pm

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – Federal Circuit Court remittal – incorrect information and bogus document provided with visa application – information that father missing and mother deceased at time of application –mother’s purported death certificate – both parents now known to be alive and living in third country – discretion to cancel visa – young age and true belief at time of application – did not inform department when correct information became known – money transfers to parents by applicant and sponsor – hardship if visa cancelled – employment, co-mortgage of property and community involvement – never lived in country of citizenship and no legal right to live in third country with parents and wife – treatment of refugees in third country and conditions in country of citizenship – ethnicity and religion – Hazara Shi’a – country information – possibility of applying for protection visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 117.221

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 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached ss. 101 and 103 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 1 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from): Ahmad Javid, Ali Javid, and Zubaida Tahiri. 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 by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss. 101 and 103 in the following respects: ‘Visa applications to be correct’ and ‘Bogus documents not to be given’.

    Particulars of non-compliance under s101.

11. The Tribunal is satisfied that ‘incorrect information’ was provided on the applicant’s Orphan Relative visa application which was lodged on 30 October 2011. In particular, this included the applicant’s status as an ‘orphan relative’ of the sponsor who is his older brother (Ali JAVID).

12. The Tribunal finds that this information was incorrect as follows:

    ·At question 2 in part A of the 47CH Form where it asked for the “Type of Application” the applicant ticked the box denoting “orphan relative”. His mother was not deceased at the time he applied for his Orphan Relative visa on 30 October 2011.

    ·At question 27 in Part D of the 47CH Form where it asked for “Details of other family members” the applicant stated his father was missing and his mother was deceased. While the applicant’s father may have been appeared to be missing at the time of his application, this is no longer the case.

    ·At question 56 in part M of the 47CH Form – “Declaration and Consent” when asked to declare the following the applicant responded thus:

    I declare that the information I have supplied in this application is complete, correct and up to date in every detail

    I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

    I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered.

    I have read and understood the information supplied to me in this application.

13. The evidence before the Tribunal indicates the applicant did not provide complete, correct and up to date information in his Orphan Relative visa application lodged on 30 October 2011, especially in answer to questions 2 and 27 of Form 47CH.

14. The Tribunal is satisfied (see the delegate’s decision submitted and found on the Tribunal file) that the applicant’s parents are both alive and residing in Iran. The applicant is in contact with them and has sent them money on a regular basis. Once apprised of this information (that they were both alive in Iran) the applicant deliberately failed to inform and update the Department of this fact.

15. Thus, the Tribunal is satisfied that the applicant was not an ‘orphan’ as previously claimed. Consequently, he did not actually meet clause 117.221 of Schedule 2 to the Regulations (as required for the grant of his Orphan Relative visa) at the time he was found to have done so.

16. As a result of the above information the Tribunal finds that he has not complied with s.101 of the Migration Act. It is apparent that he has given incorrect answers in his application for his Orphan Relative visa application lodged on 30 October 2011, specifically his status as an ‘orphan relative’ of the sponsor (his older brother Ali JAVID) and that he could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.

    Non-compliance with s103

17. Furthermore, the applicant has not complied with section 103 of the Act because in the process of applying for the Orphan Relative visa he provided a ’bogus document’ (a certificate confirming his mother’s death) with the purported date being 22 May 2011. He then submitted this document in support of his Orphan Relative visa application.

18. As is now apparent from subsequently available information she is not deceased and is residing in Iran. Thus, this purported death certificate for his mother which he provided with his Orphan Relative visa is a ‘bogus document’.

19. The Tribunal (having reviewed all the oral and written evidence before it) finds there was relevant non-compliance. The Tribunal is satisfied that the applicant furnished ‘incorrect information’ about his orphan status and ‘a bogus document’ being a purported death certificate for his mother who is still alive in Iran.

20. For these reasons, the Tribunal finds that there was non-compliance with. ss.101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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

23. The correct information is that the applicant was not an orphan as claimed at the time of his Orphan Relative (Subclass 117) visa application on 30 October 2011.

24. The applicant’s Orphan Relative visa was granted on the basis that he satisfied the criteria for the visa and was an ‘orphan relative’ of his sponsor - his older brother Ali JAVID. Moreover, it was claimed he could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.

25. The simple fact of the matter is that the applicant’s parents were/are still alive and residing apparently, in Iran. Further proof of this (found in the delegate’s decision record on the Tribunal file) is that the applicant, and his brothers (it was discovered) were transferring monies to their parents on a regular basis since June 2013. Hence the Tribunal is satisfied that the applicant was not an orphan as previously claimed.

26. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

27. The applicant provided a ‘bogus document’ (his mother’s purported death certificate dated 22 May 2011) in support of his Orphan Relative visa application. The certificate indicated that the applicant’s mother was severely injured in a car accident and died of the sustained injuries prior to reaching a hospital.

28. However, of course, it has become apparent subsequently that his mother is not deceased and is residing in Iran. Plainly, the death certificate provided with the application for his Orphan Relative visa was a ‘bogus document’.

29. The Tribunal give this consideration significant weight in favour of cancellation.

    ·     whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document

30. The Tribunal considers the decision to grant the applicant’s Orphan Relative visa was based, at least in part, on the incorrect information and a ‘bogus document’. Thus, the applicant intentionally misled the Department to facilitate the grant of his visa.

31. The Tribunal give this consideration significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

32. The circumstances in which the non-compliance occurred was when the applicant provided incorrect information in his application for his Orphan Relative visa. He also provided the Department with a ‘bogus document’ in support of this application (his mother’s purported death certificate). In response to the NOICC the applicant claimed he truly believed his mother was deceased and his father was missing at the time of application and lodgement of his Orphan Relative visa. He further claimed he did not become aware of their existence until June 2013 for his mother and April 2014 for his father. He has also suggested (in oral evidence in mitigation of his actions) that he was only 14 years old at the time of her purported death.

33. The Departmental investigation (see decision record) reveals financial transactions which took place between the applicant and his parents and which commenced in June 2013. This matched the timeline of his mother’s claimed release from the Taliban and his father’s reappearance in April 2014. However, additional information pertaining to the financial transactions of the applicant’s brother and visa sponsor (Ali Javid) indicates payments to a beneficiary matching the name of their father (Mohammad Essa) on 19 June 2013 and 23 June 2013. Logic would dictate that If their father was not located until 2014 - he could not have been the beneficiary of these remittances.

34. As well, having discovered the existence of his parents, the applicant then failed to update the Department about this fact. Plainly, the information provided on the applicant’s Orphan Relative (Subclass 117) visa application in relation to his status as an orphan - was incorrect. This is regardless of whether the visa applicant knew that his parents were alive at the time of his Orphan Relative (Subclass 117) visa application or not.

35. The Tribunal give this consideration some weight in favour of cancellation.

    ·     the present circumstances of the applicant

36. In his response to the NOICC the applicant declared he has been married to his wife for two years. He informed that she is a Shi’a Hazara person currently residing in Iran. His wish is to bring her to Australia where they can start a life together. If his visa cancellation were affirmed, the applicant has previously claimed he cannot live legally in Iran. He reiterated this in the first hearing (separately constituted). This would cause the breakup of his relationship because his wife lives in Iran. He has previously indicated that Afghanistan reminds him of the most miserable and nightmarish times. To live in Afghanistan has no meaning for him – he has claimed. Additionally, a decision to uphold the visa cancellation would impact him adversely from a financial viewpoint as he and his brother share a mortgage on a property.

37. The Tribunal acknowledges that a visa cancellation outcome would mean he will no longer be eligible to sponsor his spouse and create significant financial hardship.

38. The Tribunal gives this considerable significant weight against affirming the cancellation.

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

39. The applicant claimed at the time of the application, he was only sixteen years old and had observed abductions, extortion and other crimes of the Taliban. He has argued that naturally, as a young boy, he believed elders confirming the death of his mother.

40. In addition, he has claimed that when both his parents were found he and his brothers decided to inform the Department about their parents had been found. However, they were advised by anonymous individuals that their visa would be cancelled if they informed the Department. The applicant further claimed he had heard that the best way to reduce the risk of his visa being cancelled was to wait until he was granted citizenship in Australia. Thus, he and his spouse maintained the fiction that his parents were deceased or could not be found and thus continued to mislead the Department.

41. The Tribunal give this consideration some weight in favour of cancellation.

    ·     any other instances of non-compliance by the applicant known to the Minister

42. The Tribunal has no other instances of non-compliance by the applicant.

43. The Tribunal give this consideration no weight in favour of cancellation.

    ·     the time that has elapsed since the non-compliance

44. The applicant arrived in Australia on 22 February 2013 and has spent nearly 9 years onshore. He has two of his siblings in Australia and has taken out a mortgage on a property, in conjunction with his brother, Ali. The Tribunal is satisfied from information found on file that he has built strong ties to the community over this period of time and is recognized for his community involvement on behalf of his fellow countrymen in Australia.

45. The Tribunal gives this consideration heavy weight against cancellation.

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

46. The Tribunal finds no evidence of any breaches of the law by the applicant since the non-compliance occurred.

47. The Tribunal give this consideration no weight against cancellation.

    ·     any contribution made by the applicant to the community.

48. The applicant has indicated in his submission and witnesses have indicated in the most recent hearing that has had made significant contributions to the community especially to his own family members. His involvement at university

49. The Tribunal gives this consideration significant weight against cancellation.

50. 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.

    Consideration of the prescribed factors, where relevant, and any matters raised by the applicant in response to the s.107 notice and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s.140.

51. Not applicable.

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

52. Not applicable.

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

53. The applicant has maintained, in oral evidence and his submission, that he cannot return to Iran where he was living illegally with his parents and family. He has cited the fragility of refugee status for Afghans in Iran.

54. According to Afghanistan expert and Professor of Diplomacy at Australian National University - Professor Maley:

    Iran's treatment of Afghan refugees has been subject to sustained criticism for subjecting Afghan refugees to human rights violations, including arbitrary arrest, detention and refoulement to Afghanistan. The asylum system does not provide Afghan refugees who have arrived after 2007 opportunities to obtain refugee status and it is increasingly difficult for Afghan refugees who registered as refugees before this time to re-register.

55. As an Afghan national, the Tribunal is satisfied that the applicant has no right to enter or reside in Iran - in a permanent sense.

56. The applicant insists he cannot return to live in Afghanistan either because as a Hazara person he would be subject to persecution and death under the new Taliban regime. The Hazara belong to the Shi’a tendency in Islam whilst the Taliban maintain the Sunni variant. It is historical fact that the Hazara have been subject to persecution under the previous Taliban regime.

57. Professor Maley has issued a recent report titled 'On the Return of Hazaras to Afghanistan'.

    In this report, Professor Maley describes the situation in Afghanistan as 'extraordinarily fluid' and observes even recent assessments of the situation 'do not necessarily provide an accurate picture of the situation in 2020 and beyond'. In Professor Maley's opinion, this fluidity means that roads that may have been safe in '2018 or 2019 may be unusable in 2020, and towns and cities that appeared 'safe' in 2019 may be extremely unsafe in 2020'.

1. Despite that evidence, the Tribunal does not consider that the applicant will be refouled if his visa is cancelled because the applicant is able to make an application for a Protection visa if he believes Australia owes him protection obligations.

2. The Tribunal gives this consideration significant weight against cancellation.

   ·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

3. If the applicant’s visa were cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained. If the applicant is no longer a holder of a permanent visa, he could lose certain entitlements he may have had as a permanent resident of Australia.

4. The Tribunal give this consideration significant weight against cancellation.

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

5. Irrespective of his age at the time and the circumstances of his childhood as refugee in Iran and Pakistan, the Tribunal finds that applicant’s subterfuge (in claiming he was an orphan when he plainly was not) - particularly egregious. He used trickery to secure entry into Australia. Nevertheless, since settling in Australia he has behaved as an upright person and has been generous towards his family and the community. He has been gainfully employed. He now wishes to sponsor his wife to join him in Australia and pursue a new life together. The Tribunal finds these mitigating factors significant.

6. Were the applicant to have his visa cancellation affirmed, the Tribunal is satisfied (in the contemporary political circumstances of Afghanistan) that he would suffer serious hardship. This is aside from any contemporaneous familial financial obligations in Australia and the familial separation anxiety which would logically ensue. The fact is that he is part of an Afghani racial group (Hazaras) which has been persecuted historically by the Taliban – the new rulers of Afghanistan.

7. Country information (available to the Tribunal) assesses that Shi’a Hazaras face a high risk of being targeted by various militant groups for attack - based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.

8. The Department of Home Affairs, Country of Origin Information Services Section (COISS), 'Return and Relocation Afghanistan' report, dated 23 October 2020, includes the following:

   In February 2020, the UN stated they were 'gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life'.

9. The new Afghani Taliban Government has already persecuted Hazaras since their latest Governmental takeover. The country information clearly indicates that Hazaras are at elevated risk of targeting on the road networks in Afghanistan due to their ethnicity. Kidnapping and abductions by anti-government elements occur regularly, 'particularly on Afghanistan's highly insecure road network'. Their eventual future could be a repeat of the experiences they had under the previous Taliban regime pre-2001.

10. The applicant, at a personal level, would have the added burden of confronting this situation alone when his family has already fled from Afghanistan to Iran or Australia.

11. The applicant has espoused fears that, if he were returned to Afghanistan, he would be subject to repression and eventual death for reasons of his race and religious persuasion (Shi’a Muslim). The Tribunal is satisfied that, despite his birth in Iran and prior residence there with his family - were he somehow to enter Iran - he could be expelled to Afghanistan at the whim of the Iranian Government. Thus, his long-term personal security would be impugned by any return to Afghanistan. The Tribunal accepts that if he is removed to Afghanistan, he will also be readily identifiable as a Hazara Shi’a from his physical appearance and his language - called Hazaragi.

12. The Tribunal accepts the applicant was born in Iran in 1994 and has never properly lived in Afghanistan. The Tribunal accepts that his parents, and wife reside in Iran as refugees. The Tribunal accepts that the applicant was born and has lived with his parents in Iran as a registered refugee but - having left Iran - he has lost his right to reside in Iran. His eldest brother sought asylum in Australia in 2009 and was found to be a refugee as a Hazara Shi’a from Afghanistan. The Tribunal accepts that the applicant has no meaningful connections in the country.

13. The Australian expert on Afghanistan (Professor Maley) observes that there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan:

    With the withdrawal of foreign forces, and particularly with the signing on 29 February 2020 of a US-Taliban agreement …there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a 'cascade', where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This … [phenomenon] … would likely create especially serious risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban and their associates in groups such as the Haqqani network.

14. Professor Maley's assessment is that:

    ‘given this fluidity, there is no place in Afghanistan that can be considered safe for Hazaras.' International troops are withdrawing at a time when violence is escalating and members of the Hazara community in Australia have expressed concerns that a resurgent Taliban will step up attacks against the Hazara community.

15. The Tribunal accepts that the aforementioned factors will only serve to elevate the risks he will face on any possible return. It is also clear that the applicant would suffer significant situational hardship if he returned to Afghanistan. Plainly, he has no local knowledge or experience let alone family support or network. Coupled with this are the ever-present and dangerous security conditions.

16. The Tribunal has considered both the serious nature of the non-compliance and the circumstances in which the non-compliance occurred. Furthermore, the Tribunal considers that tendering bogus documents and, resultingly, incorrect information to the Department is unethical behaviour which tends to compromise the entire visa system. Despite the Tribunal’s expressed concerns at the applicant’s disreputable visa history, it must be contrasted with applicant’s subsequent good behaviour and work ethic since arrival in Australia. The egregious hardship factors elaborated above which could befall him (were he to be returned to Afghanistan) – are a significant concern to the Tribunal. As a consideration the Tribunal has decided to give these potential hardship considerations maximum weight against cancellation.

17. 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. Furthermore, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    Michael Cooke
    Senior 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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.