1621289 (Refugee)

1621289 (Refugee) [2017] AATA 770 (20 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621289
COUNTRY OF REFERENCE:                  Uzbekistan
MEMBER:B. Mericourt
DATE:20 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 20 April 2017 at 8:39am

CATCHWORDS
Refugee – Protection visa – Cancellation – Uzbekistan – Incorrect answers in protection application – Particular social group – Homosexual – Spouse visa application – Applicant departed Australia

LEGISLATION
Migration Act 1958, ss 5, 97-101, 107, 109, 140, 426A
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 [in] December 2016 to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the basis on which the applicant had been granted a protection visa was not correct. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 16 January 2017 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 February 2017. On 8 February 2017 the applicant requested that the hearing be postponed as he was “receiving a treatment and should avoid aggravating his emotional and physical state.” He requested a postponement “until he felt a bit better”. He stated his doctor was of the opinion that treatment should start being effective in about two months. The applicant did not provide any medical evidence of his condition or treatment.
On 9 February 2017 the Tribunal wrote to the applicant stating that it had granted his request and the hearing had been rescheduled to 19 April 2017. The applicant was advised that if he sought a further postponement for medical reasons he would need to provide a report from a medical practitioner indicating why he would be physically unable to attend the hearing. The hearing would last for two hours and he would be provided with frequent breaks as required. If he had any further specific requirements in attending the hearing the Tribunal would try to accommodate his request if possible. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received.
Department records indicate that the applicant departed Australia [in] March 2017. He did not notify the Tribunal of his absence prior to the hearing. He not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The visa applicant was born in [year] in Uzbekistan and is a citizen of Uzbekistan. He entered Australia [in] September 2010 as the holder of a [temporary] [visa] and lodged an application for protection [in] December 2010 on the basis that he feared persecution in Uzbekistan because he was a member of a particular social group - homosexuals. The Department refused the visa [in] March 2011. On 16 August 2011 the Refugee Review Tribunal (RRT) (differently constituted) remitted the Department’s decision and he was granted a protection visa [in] September 2011.
[In] March 2014, the applicant’s partner lodged a [Partner] visa application which included his [number] children. [In] May 2015 the Department refused to grant the applicant’s partner a Partner visa. On 12 July 2016 the Tribunal (differently constituted) remitted the Department’s decision.
[In] June 2016 the Department issued the applicant a Notice of intention to consider cancellation of his protection visa under s109 (incorrect information) of the Migration Act. He was invited to make submissions which he did [in] July 2016. [In] October 2016 an International Treaties Obligations Assessment found that Australia did not have non-refoulement obligations to the applicant.
[In] December 2016 the applicant was issued with a Notification of Cancellation of protection visa under s109 of the Migration Act. The applicant lodged an application for review of the Department’s decision to cancel his protection visa [in] December 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided the Tribunal with a copy of the Department’s decision to cancel his visa. He did not make any further submissions to the Tribunal
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.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:
According to the applicant’s claim for protection Form 886C on page 7 at question 42 “Why did you leave (Uzbekistan)?, the applicant claimed that he had been harassed in Uzbekistan because he is homosexual. He had married to be like everyone else. He had [number] children from the marriage but it was hard to pretend to be in a heterosexual relationship. His wife left him when she found out about his homosexuality. He fled from Uzbekistan because he feared his life was in danger. He dated a man and when this relationship became known, this man was killed and he was nearly killed. He was harassed and tortured by the police when his sexual orientation was revealed. His parents hated him and the local [authorities] forced them and his siblings to abandon him. Because he is homosexual he cannot live safely Uzbekistan.
These claims were reiterated in more detail in a written statement dated [in] February 2011, at the applicant’s interview by the DIBP Onshore Protection Officer [in] March 2011 and at the Refugee Review Tribunal hearing of 8 June 2011.
On the basis of the information that the applicant provided he was granted a protection visa [in] September 2011.
[In] March 2014 the applicant’s spouse lodged a Partner visa application which included his [number] children. The applicant provided Form 40SP “Sponsorship for a Partner to migrate to Australia” which included the following responses:
·at page 8 question 20 “What is your current relationship status with the visa applicant?” the applicant responded ‘engaged’;
·at question 23 “When did you and the visa applicant commit to a shared life together to the exclusion of all others?” the applicant responded ‘[Sep] 2001’;
·at question 24 “Since you and the visa applicant committed to a shared life together to the exclusion of all others, have you lived separately and apart for any periods or time?” the applicant responded ‘yes’; and
·at page 9 question 27 “Have you ever been in a same-sex or opposite sex de facto relationship with a person other than the current visa applicant?” the applicant responded ‘no’.
As part of the Partner application, the applicant had provided evidence of international money transfers dating from 2011 to 2013; photographic evidence of a trip to [Country 1] where he met with his wife in April 2013; other family photos; mobile phone records indicating daily contact with his wife since late 2012; and screenshots from [a messaging service] from 2014.
Since the grant of his protection visa, the applicant has departed Australia on four occasions. On his incoming passenger cards he stated the countries in which he had spent the most time were [Country 2] or [Country 1]. [In] December 2015, upon his most recent arrival back into Australia, the applicant was interviewed by a Border Officer and he stated that he had visited his mother and children in Uzbekistan. During this interview, he was found to be in possession of an Uzbekistan passport which had been issued [in] 2015 by the State Personalisation Centre of the Republic of Uzbekistan.
In the s.107 Notice of intention to cancel, the delegate concluded:
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia has protection obligations under the Refugees Convention. You have consistently maintained that you are homosexual and that you fear returning to Uzbekistan. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.
Your voluntary participation in the sponsorship for the Partner application which states that you have been in an ongoing relationship with your wife since 2001 together with your returns to Uzbekistan without any apparent harm, suggests your claims for protection in your protection visa application are incorrect.
As the incorrect information provided was material to this determination it appears you may not have engaged Australia has protection obligations.
Consequently, I consider that you have not complied with section 101 of the Act as it appears you have provided correct information to these questions in your subclass 866 Protection visa application.
The delegate invited the applicant to comment in writing on the instances of non-compliance identified in the s.107 notice within 14 calendar days.
[In] July 2016 the applicant responded. In summary, he stated that:
·he commenced a homosexual relationship whilst he was still married to his wife. This man was killed and he had to escape to avoid the same fate. His parents, wife and children were harassed and even beaten;
·the applicant started to think his homosexuality was a deviation as he was not attracted to any man in [Australia] and he started to really miss his wife. He eventually realised she was his soul-mate. Even though they had entered into an arranged marriage they were lucky because they liked each other from the start;
·he attended a doctor in [Australia] to see if it was normal that he had a heterosexual relationship, then a homosexual relationship, then back to wanting a relationship with his ex-wife and whether he needed medication. The doctor reassured him that some people are like this - they are bisexual and their feelings depend on the person they like, not the gender of that person;
·his wife always loved him and found the strength to forgive him. They agreed to give their relationship another go;
·when the applicant responded on the sponsorship form to the question about when his relationship started, he was referring to the first time they met and agreed to marry. He did not realise that he had to separate his history with his wife. They had a few years break in the relationship and then they came to the same decision as when they first met which was to be together. So to them it is still September 2001. Possibly he also misunderstood the question due to cultural differences;
·he may have answered no ‘automatically’ to the question about whether he had had any other same-sex or heterosexual de facto relationships. There was no point in lying because he knew that the Department of Immigration had all his documents and knows his history with his homosexual relationship. It was an honest mistake;
·he was transferring money to his wife to support their children. But when they agreed they should be back together any new transfers of money were intended to support her as well;
·in regard to his answer to question 24, he and his wife agreed to an exclusive relationship when they first married. Then he cheated and destroyed his marriage and they lived separately. They got back together although they still lived separately after agreeing that this time they will make their relationship work;
·when he travels he always puts the first country he was flying to on his airline cards. His first trip overseas in 2012/13 was to [Country 3] to meet with his wife, but his children were contracting infections after infections and she could not make it. He returned home and they only met in 2013 in [Country 2] where they spent seven days together. They met up again in 2015 in [Country 1] when they again spent one week together. He then went to Uzbekistan as his mother was critically ill and he wanted to see her one more time. It was dangerous for him but he was able to get through border control. He did not venture out once he was [there]. They paid $[amount] to the [local authorities] who agreed not to make noise about his having returned to Uzbekistan. He also paid $[larger amount] for a new passport because his old one was due to expire and he needed to leave the country. In the passport office they pulled out his file and he was quick to say he was paying $[larger amount] for a new passport and he was leaving Uzbekistan for ever. Whilst he was there he hardly went out so he could be safe. He only returned to Uzbekistan once - not more than once as seem to be indicated in the s.107 notice;
·homosexuality is still a criminal offence in Uzbekistan and people there hate homosexuals. His parents continue to be treated as outcasts. He believes his life and freedom are still in danger in Uzbekistan;
·the applicant is aware someone wrote a letter about him going to Uzbekistan several years ago to attend a wedding. He believes that he was mistaken for his brother as they look similar and even dress similarly. People always confuse them and his brother attends weddings every year so he could have been mistaken for the applicant;
·the applicant stated that he is prepared to be interrogated and take a lie detector test to prove that he has never lied in his protection visa application.
As the applicant did not attend the hearing or provide any submissions to the Tribunal, the Tribunal has relied on the above responses he provided to the Department to determine whether the information he provided to the Department at the time of his application protection was correct.
The applicant has maintained that he had a homosexual relationship in Uzbekistan which caused the breakdown of his marriage, at least temporarily. His gay partner was killed and he was threatened with serious harm. He consequently fled Uzbekistan. He did so by applying for a [temporary] visa to Australia. Three months after his arrival he applied for protection.
The applicant has consistently stated that he has not had any homosexual relationship or engaged in any homosexual activities in Australia since his arrival and he has wondered about whether this behaviour is “deviant”.
The Tribunal has found that the applicant continued to maintain contact with his wife after his arrival in Australia. Although the applicant claims that initially contact was solely for the purpose of providing financial support to his children, the Tribunal is satisfied that he maintained contact with his wife via telephone and the Internet. This suggests that the relationship had not broken down entirely.
The Tribunal does not accept that the applicant ‘accidentally’ answered no to the question about whether he had ever had a same-sex or heterosexual relationship during the period in which he was committed to an exclusive relationship with his wife. The question is clear and the Tribunal considers that it is reasonable to assume that he understood the implications of the question and would have answered truthfully if in fact he had had a homosexual relationship since 2001 and this was a genuine basis for his claim for protection.
The applicant has returned to Uzbekistan on at least one occasion and did not suffer serious or significant harm. He claimed that he avoided harm by paying bribes to local [authorities]. However, the Tribunal had regard to the fact that the applicant did not declare he had spent most of his time abroad in Uzbekistan on his Incoming Passenger Card and only admitted this when he was stopped by Border Control officials and found to have a Uzbekistan passport which he had renewed in Uzbekistan during that period he was abroad. Based on this information, the Tribunal is satisfied that the applicant returned to Uzbekistan voluntarily and did not suffer serious or significant harm because he is not perceived to be a homosexual by either the local community, [local authorities] or the authorities in Uzbekistan.
The Tribunal also had regard to the fact that the applicant stated in his response of [in] February 2016 that he visited [Country 3] in 2012 for the purpose of seeing his wife and children but the children were ill so he did not see them. On that occasion he was absent for a period of three months and on his incoming passenger card he stated the country in which he spent most time abroad was [Country 2]. The applicant said that he met his wife and children for one week in [Country 2] in 2013 which is consistent with the information on his incoming passenger card. The applicant said that he next met his wife for one week in [Country 1] in 2015. This is not consistent with his incoming passenger card or the statement he made to the Border Police about the time he spent in Uzbekistan during that visit.
Based on the above information the Tribunal finds that the applicant provided incorrect information about the contact he has had with his wife since his arrival in Australia and about his travel to Uzbekistan on his incoming passenger cards.
Based on the above evidence cumulatively, the Tribunal is satisfied that the applicant provided incorrect information to the Department, that is, he incorrectly claimed to be homosexual and to have had a homosexual relationship, for the purposes of obtaining a protection visa.
For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Migration Act by the applicant in the way described in the s.107 notice.
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.
Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
A. The correct information
Based on the applicant’s own evidence, the Tribunal finds that the correct information is:
(a)the applicant is a citizen of the Republic of Uzbekistan and was so at the time of application in 2010/11;
(b)at the time the applicant lodged his application he was married with [number] children;
(c)the applicant continued to have contact with his wife after his arrival in Australia;
(d)the applicant has not engaged in any homosexual behaviour in Australia;
(e)the applicant used his Uzbek passport to enter and exit Uzbekistan on at least one occasion in 2015 and during that visit did not suffer any significant or serious harm;
(f)homosexuality is a criminal offence in Uzbekistan. The US Department of State referred to reports of police using informants to extract heavy bribes from gay men and that in general, homosexuality is a taboo subject in Uzbek society and there are no known lesbian, gay, bisexual and transgender (LGBT) organisations.[1]
[1] US Department of State, Country Reports on Human Rights Practices for 2015, Uzbekistan 2015 Human Rights Report, p.32
Based on the Tribunal’s findings in paragraphs 28 to 31 above, the Tribunal also finds the correct information is that the applicant is heterosexual, not homosexual, and that he has never engaged in homosexual activity either in Uzbekistan or Australia.
B. The content of the genuine document (if any)
This prescribed circumstance is not relevant in the present application as the s.107 notice relied solely on s.101 and not on s.103 (bogus documents), and, in any event, the applicant did not provide any documentary evidence to support his application for protection.
C. 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
Based on the findings above, the Tribunal finds that the decision to grant the applicant a protection visa was based, wholly or partly, on the incorrect information provided by the applicant at his interview with the delegate, in his statutory declaration, in his protection application Form 866 and at the RRT hearing on 8 June 2011.
D. The circumstances in which the non-compliance occurred
As discussed above, the applicant arrived in Australia as the holder of a [temporary] visa [in] September 2010. He lodged an application for protection three months later stating that he had been subjected to persecution and discrimination in Uzbekistan because he was a homosexual person. He maintained the same claims in his written statement dated [in] February 2011, in his interview with the delegate [in] March 2011 and at his RRT hearing of 8 June 2011. The RRT accepted the applicant’s claims and consequently, the Department granted him a protection visa [in] September 2011 on the basis that he had a well-founded fear of being persecuted in Uzbekistan because he was a homosexual person.
When his spouse applied for a Partner visa the applicant provided information to the Department that he commenced a mutually committed exclusive relationship with her in 2001 and he had not had any same-sex or heterosexual de facto relationships since that time.
The Tribunal therefore considers that the applicant knowingly provided incorrect information to the Department solely for the purpose of obtaining a permanent visa.
E. The present circumstances of the visa holder
There is no information before the Tribunal to indicate what the applicant’s present circumstances are, or where he is currently residing.
F The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 is headed ‘[v]isas based on incorrect information may be cancelled’ and includes ss.97-115. These provisions oblige non-citizens to give correct information and to not give incorrect information in their visa applications and passenger entry cards, which must be complete in full, and to not produce, present, give or provide a bogus document to an immigration officer or delegate.
The evidence from the applicant’s Uzbekistan passport indicates he entered and exited Uzbekistan using this passport in 2015. On his Incoming Passenger Card the applicant stated that he had spent most time abroad was [Country 2]. However, the entry and exit stamps for [Country 2] on his Titre de Voyage indicate that he was in [Country 2] for a total of [number] days and spent one month outside [Country 2]. At his interview on his arrival by a Border Officer he stated that he had visited his mother and children in Uzbekistan.
The applicant has stated that he thought he only had to indicate the country at which he first arrived or from which he had departed, that is, [Country 2]. However the Incoming Passenger Card clearly asks the question ‘country where you spent most time abroad’. The Tribunal does not accept the applicant’s explanation for providing incorrect information on his passenger entry card and considers that he knowingly provided incorrect information.
G. Any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal that since the applicant’s protection visa was granted there have been any other instances of non-compliance by the applicant.
H. The time that has elapsed since the non-compliance
Six to seven years have elapsed since the applicant provided incorrect information in his protection application which led to him being granted Protection visa.
I. Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached the law in Australia since the grant of his protection visa.
J. Any contribution made by the visa holder to the community
There is no information before the Tribunal that the applicant has made any contribution to the Australian community since the grant of his visa.
Other relevant factors
As noted above, in addition to the 10 prescribed factors that the Tribunal must take into account in considering whether or not the applicant’s visa should be cancelled, the Tribunal may also have regard to other relevant matters, such as relevant Departmental policy. In this context, Department policy requires delegates considering cancellation provisions under s.109 to take into account additional matters such as whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
(a)Australia’s international obligations
The applicant claimed that he would be persecuted in Uzbekistan for reasons of his being a homosexual.
As discussed above, the Tribunal is not satisfied that the applicant engaged in homosexual activities in Uzbekistan. The Tribunal finds that the applicant has never engaged in homosexual activities in Australia and is not currently a practising homosexual. He possesses a Uzbek passport; and he returned to Uzbekistan for a period of almost four weeks in 2015, apparently without suffering significant or serious harm. He has again departed Australia and at the time of this hearing has been absent for a period of one month. He received the invitation to the hearing prior to his departure and did not inform the Tribunal of his departure. His stated wish in his most recent submission to the Department is to be with his wife who he claims to be his soul-mate and with his children.
Taking these findings into consideration cumulatively, the Tribunal finds that the effect of the cancellation would be to return the applicant to Uzbekistan and this would not be in breach of Australia’s non-refoulement obligations as may arise out of UNCAT and the ICCPR or in breach of any obligations arising under the Refugees Convention or the complementary protections provisions found in the Migration Act 1958.
(b) Whether there are persons in Australia whose visas would, or may be, consequentially cancelled under s.140 of the Act.
The applicant arrived in Australia on his own with no dependents. There is no information before the Tribunal that there are any persons in Australia whose visas would be consequentially cancelled.
(c) Family unity
There is no information before the Tribunal that indicates any members of the applicant’s family are in Australia. In fact, the family would be unified if the applicant returns to Uzbekistan.
(d) Likely legal consequences of a visa cancellation decision
The Tribunal accepts that, as a consequence of the cancellation of his visa, the applicant will become an unlawful noncitizen if he remains in Australia and will then be liable to be in immigration detention. Having found that the applicant is a citizen of the Republic of Uzbekistan, the Tribunal considers that he is able to return to Uzbekistan and that he has already done so on at least one occasion. He will be barred from making any further applications for a visa in Australia unless the Minister intervenes and allows him to make an application. The Tribunal has found that Australia does not have non-refoulement obligations in his circumstances.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
B. Mericourt
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
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.

[2017] AATA 770

20 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal