1823475 (Migration)

[2019] AATA 4813

1823475 (Migration) [2019] AATA 4813 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823475

MEMBER:Susan Trotter

DATE:14 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 887 (Skilled - Regional) visa.

Statement made on 14 June 2019 at 4:18pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled – Regional) – incorrect answers – known by other name – subject to arrest warrant – decision to grant visa based partly on incorrect information – unlikely visa would have been granted if Department aware of correct information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109, 113
Migration Regulations 1994 (Cth), Schedule 2, cl 887.223, Public Interest Criterion 4001

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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 887 (Skilled - Regional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a [citizen] of India and was granted the visa on 21 November 2016.

3. On 23 August 2017, the then Department of Immigration and Border Protection (the Department) sent a formal Notice of Intention to Consider Cancellation (NOICC) of the visa to the applicant.

4. On 8 August 2018, the delegate cancelled the visa on the basis that there was a ground for cancelling the visa, namely that the applicant provided an incorrect answer on his visa application when he stated that he was not currently, nor had ever been, known by any other names other than [Mr A], when it appeared that he was also known as [Mr B]. Further, the applicant had answered ‘no’ to a question as to whether he had ever been the subject of an arrest warrant or Interpol notice, when it appeared that he was wanted by the [Police] (in India) as the subject of an arrest warrant. Further, the delegate considered the material submitted in response to the NOICC also contained incorrect information.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 14 August 2018 and provided the Tribunal with a copy of the delegate’s decision.

6. The applicant appeared before the Tribunal on 13 March 2019 and 10 May 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES

9. 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.

10. 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.

11. Relevantly in this case, s.101(b) of the Act provides that a person’s visa application form must be filled in in such a way that no incorrect answers are given or provided.

12. If there is non-compliance in the way described in the notice given to the applicant under s.107 of the Act, and cancellation is not prohibited by s.113, 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).

13. Extracts of the legislative provisions relevant to this case are attached to this decision.

14. It follows that the issues to be determined by the Tribunal are as follows:

    (a)Has a valid notice been issued under s.107 of the Act? And, if so,

    (b)Is there non-compliance in the way described in the s.107 notice? And, if so,

    (c)Should the visa be cancelled?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 - Has a valid notice been issued under s.107 of the Act?

15. 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.

    Issue 2 – Is there non-compliance in the way described in the s.107 notice?

16. On 23 August 2017, the delegate issued a notice under s.107 of the Act setting out the relevant provisions and the particulars of the non-compliance. Relevantly, the notice included as follows:

    Particulars of the possible non-compliance:

    …
    [In] July 2008 you arrived in Australia as the holder of a [temporary] visa.

    [In] January 2010 you departed Australia from [an] International Airport.

    [In] February 2010 you return to Australia [arriving] at [an] International Airport.

    On 2 September 2016 you lodged an application for a Regional Skilled (BV 887) visa. Your name on the application form is listed as [Mr A]. In your application form where you were asked “Has any applicant ever been the subject of an arrest warrant or Interpol notice?” you answered ‘No’.

    In the application form you were asked “Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)?” you answered ‘No’.

    In the application form you also listed you father’s name as: [Mr C]; and your mother’s name as: [Ms D]; and your residential address in your home country as: [specified].

    The application form includes a Declaration which asks “The information provided in this form is complete, correct and up-to-date” and; “I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may be subsequently cancelled.” You acknowledged this declaration by answering ‘yes’.

    On 21 November 2016 you were granted a Regional Skilled (VB 887) visa on the basis of meeting all relevant criteria including the above information which you provided in the Regional Skilled visa application form.

    The Department has information that indicates you are the subject of an arrest warrant in the district of [District 1], Punjab India.

    The Department has information provided by the [Police] located in [Location 1] that shows [Mr B] is wanted as a “Proclaimed offender” (subject to an arrest warrant) in relation to an alleged criminal offence that occurred on [in] February 2010 at [Location 2], [Village 1]., India.

    Information contained in the First Information Report (FIR) recorded by [Police] lists the wanted person [Mr B] (alias: [A1]) son of [Mr C] and an address: [specified].

    Further information provided by [Police] advises that the wanted person’s date of birth is [specified] and mother’s name is [Ms D].

    The above information confirms that you, [Mr A] and [Mr B] are one and the same person. On the basis of your date of birth, overseas address and both your parents’ names as supplied by the [Police] in India match information you have previously provided to the Department in your visa application, I consider that you are also known as [Mr B].

    Department records confirm that you were outside of Australia [in] February 2010 which is the date that the alleged offence occurred, as recorded in the FIR provided by [Police].

    On the basis of the information provided by [Police] it appears that you are the subject of an arrest warrant.

    On the basis of the above information, I therefore consider that you have not complied with section 101(b) of the Act because in support of your application and in order to satisfy the legislative requirements for the grant of a visa, you provided incorrect information to the Department. Specifically I consider that you have provided incorrect information in the application form in the following manner:

    ·     In the application form for a Regional Skilled (VB 887) visa where you were asked “Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)?” and you answered ‘No’. This information is incorrect because it appears that you are also known as [Mr B].

    ·     In the application form for a Regional Skilled (VB 887) visa where you were asked “Has any applicant ever been the subject of an arrest warrant or Interpol notice?” and you answer ‘No’. This information is incorrect because it appears that you are wanted by [Police] as the subject of an arrest warrant.

    Consequently, I consider that you have not complied with section 101 of the Act as it appears that you have provided incorrect information to the above questions in the application form for a Regional Skilled (BV 887) visa.

17. A response to the NOICC was provided on behalf of the applicant on 4 September 2017 as follows:

    Our client has never been served with an arrest warrant nor has one been served on his family’s home. Obviously we are not in a position to respond to the notice of 23 August 2017 without seeing a copy of the purported arrest warrant.

    We therefore make formal request to be supplied with a copy of this purported arrest warrant.

    …

    We note that the term ‘arrest warrant’ is not defined in the Migration Act or Regulations. The absence of any such statutory definition makes it even more imperative our client be supplied with this purposed arrest warrant.

    Our client has made an urgent application under FOI to access his file. IN the meantime we have received ‘substantial evidence’ in the form of investigation reports compiled by [an] Officer from [Police] which points to the following:

    (i)Political rivalry in the village

    (ii)Lack of evidence – contradiction in statements of the complainant

    (iii)Report of medical examiner

    (iv)Presence of the complainant in [specified location] during the alleged incident

    We are currently studying the report and copies will be forwarded in due course. The report confirms that the FIR registered against our client was cancelled.

    …

18. The applicant subsequently provided documents to the Department in support of his response to the NOICC as follows:

    (a)A translated document on its face being a Cancellation Report [from] the [police] station in relation to FIR [signed] by the [Officer] at [the] police station [in] October 2010[1];

    (b)A translated document on its face appearing to be from the Superintendent of Police, [to] the Senior Superintendent of Police, [dated] 7 October 2010, which amongst other things, states that the FIR [dated] 2.2.10 should be cancelled[2];

    (c)A translated document entitled ‘[Specialist][Specified]’ signed by the [Specialist] on 2 February 2010 and on its face referring to a FIR [dated] 2.2.10 and referring to a [item] received by the author on ‘4^th Feb 2010’[3] and

    in reliance on those documents, submitted that the FIR had been cancelled.

    [1] Folios [of] Department file

    [2] Folios [of] Department file

    [3] Folio [of] Department file

19. Notably, s.100 of the Act provides that an answer to a question is incorrect even though the person who gave the answer did not know that it was incorrect.

20. The applicant denies that he has been known in India by any other names and based on his enquiries denies that he has been the subject of an arrest warrant.

21. The issue therefore to be determined by the Tribunal as to whether there is non-compliance described in the s.107 notice requires consideration of whether:

    (a)The applicant has ever been the subject of an arrest warrant or Interpol notice; and

    (b)The applicant has ever been known by any other names, including aliases or any alternative spelling of any names.

    Has the applicant ever been the subject of an arrest warrant or Interpol notice?

22. The delegate in its decision record notes that the information before the Department includes as follows:

    (a)The applicant is the subject of an arrest warrant in the district of [District 1], Punjab, India.

    (b)The applicant lodged the visa application on 2 September 2016 and provided his name as [Mr A] and his birth date as [specified].

    (c)In the visa application form, the applicant provided his father’s name as [Mr C] and his mother’s name as [Ms D] and his residential address in his home country as ‘[specified]’.

    (d)Information provided by [the] Police [shows] [Mr B] is wanted as a ‘proclaimed offender’ (subject to an arrest warrant) in relation to an alleged criminal offence that occurred [in] February 2010 at [Location 2], [Village 1], India. Information contained in a First Information Report (FIR) recorded by [the] Police lists the wanted person as [Mr B] (alias: [A1]) son of [Mr C] and an address of [specified].

    (e)Further information provided by the [Police] advises that the wanted person’s date of birth is [specified] and that his mother’s name is [Ms D].

    (f)Departmental records confirm that the applicant was outside of Australia [in] February 2010, which is the date the alleged offence occurred as recorded in the FIR provided by the [Police].

23. As already noted, in response to the NOICC the applicant provided translated documents to the Department being a Cancellation Report, a letter from the Superintendent of the [Police] dated 7 October 2010 and a report of the [Specialist] dated 2 February 2010.

24. The delegate in their decision noted that after receipt of these documents from the applicant, the Department obtained information from the Australian High Commission in New Delhi through the relevant authority that in relation to the ongoing criminal matter referred to in the [February] 2010 FIR, [Mr A], son of [Mr C], is a proclaimed offender.

25. Written submissions on behalf of the applicant in relation to whether he has ever been the subject of an arrest warrant or Interpol notice included as follows:

    (a)He first became aware of the alleged existence of an arrest warrant when the Department issued the NOICC.

    (b)With the assistance of his parents, he has since conducted enquiries in relation to an outstanding legal matter in India, and has ascertained the following:

    (i)    [In] February 2010, [Ms E] made a report to the [Police] to the effect that the applicant and another person raped her and the police drafted a FIR in which the applicant was described as ‘[Mr B] Alias [A1]’.

    (ii)   On or about [October] 2011, a Court in [District 1] issued a document which appears to be a warrant but the applicant’s position is that it is not an arrest warrant[4]. Further, the purported warrant has never been served on the applicant.

    [4] Folio 97 of the Tribunal’s file

    (iii)  On or about [January] 2012, the applicant appears to have been declared a ‘proclaimed offender’ by a court in [District 1].

    (iv)  The applicant does not know if there are currently any ongoing charges or proceedings against him in India in connection with the complaint in the FIR, nor whether there have at any stage been such charges or proceedings.

    (v)   The applicant, through his father, has instructed a lawyer in India to seek orders in the High Court of Punjab and Haryana to quash the order, in which the applicant was declared a proclaimed offender.

    (c) The term ‘arrest warrant’ is not defined in the Act or Migration Regulations 1994 (the Regulations). For a document to be an arrest warrant, it has to be, at the very least, a written direction to a police officer, directing the police officer to arrest the person and produce the person in court without delay. It is submitted that the applicant has never been the subject of an arrest warrant for the following reasons:

    (i)The Department has not provided a copy of an arrest warrant. The only document which the applicant has been able to locate is the purported warrant. It appears that the document is described as a warrant. However, it is submitted that this is not an arrest warrant. It does not authorise or direct the applicant’s arrest. It does not authorise or direct a police officer to take the applicant into custody, and then to take him before the court. Rather, unlike an arrest warrant, the document is directed to the applicant and not the police, and states that the applicant is to appear before the court on the stated date of [November] 2011, otherwise ex-parte proceedings would be initiated against the applicant.

    (ii)Nothing in the document mentions arrest and nothing indicates that the applicant could not move freely prior to the nominated court date, or thereafter. Even though the document contained the word ‘warrant’, it is in the nature of a notice to appear, subpoena or summons.

    (iii)Pursuant to s.76 of the Code of Criminal Procedure 1973 (India) (the Indian Criminal Code), a person who is arrested must be brought before the court by the arresting officer without unnecessary delay, provided that such delay shall not in any case exceed 24 hours. The purported warrant is dated 18 October 2011, and it requires attendance in court on 3 November 2011, over two weeks after the date of issue. If an arrest warrant had been issued, the police would have been directed to bring the applicant to the court without delay. If the purported warrant is taken to be an arrest warrant, then it would in effect enable the police to keep the applicant in custody for a period of over two weeks in breach of s.76 of the Indian Criminal Code such that it is highly unlikely that a Court would have directed the local police to arrest the applicant and keep him in custody without bringing him before the Court for an extended time period, thereby clearly breaching the relevant law.

    (iv)The applicant obtained [numerous] police clearance certificates from the Indian authorities issued after October 2011 and if an arrest warrant had issued, the Indian authorities would not have issued police clearance certificates to the applicant on [numerous] separate occasions, thus proving the applicant has not been the subject of an arrest warrant.

    (v)On each occasion the applicant sought a police clearance, he provided the High Commission of India with his residential address in Australia as well as his passport. If an arrest warrant had been issued against the applicant, it is submitted that the High Commission would not have returned the applicant’s passport but rather would have attempt to give effect to the arrest warrant.

    (vi)Although the applicant does not know what an Indian arrest warrant looks like, a basic Google search indicated that there is a standard form with examples provided. The content of these documents substantially differs from the purported warrant and directs the police officer to arrest the person and bring them to court. The purported warrant does not contain such a direction and it gives no direction to the police.

    (vii)Even though the applicant has been declared a proclaimed offender, and even though s.82 of the Indian Criminal Code contemplates that a person will be declared a proclaimed offender after an arrest warrant has been issued, despite the Indian Criminal Code’s requirements, an arrest warrant had not been issued in the present case, such that the declaration that the applicant is a proclaimed offender was erroneously made, in breach of the Indian Criminal Code. The Indian Criminal Code contemplates that a declaration is to be made only if someone absconds or is concealing himself. Given the applicant left almost two years before the purported warrant was issued, and given he did not try to conceal himself (having being issued with [numerous] police clearance certificates since that time) shows that the applicant was wrongly declared a ‘proclaimed offender’.

1. At the first hearing on 13 March 2019, the Tribunal queried the applicant as to whether he at some point became aware that he had come to the attention of the police in India. The applicant stated that he did become aware and that was during a telephone call with his father in 2010. His father told the applicant that someone had made an allegation and the police were investigating. When queried as to whether his father had told him how he had become aware of this information, the applicant said his father had not told him how and that was all he was told. The Tribunal noted that it seems that he might have queried his father for more information. The applicant responded that he did ask what type of allegations and his father just explained the allegation of [serious offences]. The applicant stated that he did not know who told his father, whether it was the police or someone else. The Tribunal indicated that it seems likely that the applicant would have been quite curious as to how his father did become aware of that allegation. The applicant responded that about eight or nine months later, the police investigation concluded that it was a false allegation including because of political rivalry in the village. The Tribunal asked the applicant how he found out about that. The applicant said that when he received the NOICC, he contacted his father to get the information about the investigation having been finalised. The Tribunal asked whether the applicant knew in 2010 about what had happened about the investigation. The applicant said that he received information from home, from his father, eight or nine months after coming back to Australia in 2010, when his father told him that he had spoken to the Superintendent of Police and had been told that the investigation had been finalised. He thinks his father must have approached the police through the chief of the village because it is not easy for a common man to go direct to the police.

2. The Tribunal queried the applicant as to his knowledge of whether the police had ever gone to his home in India looking for him. The applicant stated that about five or six months ago, someone from the police went to his home and but was just checking that he, the applicant, was the son of his parents.

3. When queried as to whether he thinks his parents would have told him if the police had visited their home looking for him, the applicant responded that they would have told him and that had not been the case other than on the occasion five months ago. The applicant told the Tribunal that the police, when they started the investigation, knew that he was in Australia so they would not have gone to his parents’ home looking for him.

4. The applicant told the Tribunal that after cancellation of his visa, his father hired a lawyer in the High Court in India in relation to having his name cleared as a proclaimed offender and a hearing was set for [March] 2019 about that. When queried, the applicant stated that he did not have documentation about those proceedings.

5. There is no arrest warrant on the Department’s file. Rather, the Department has relied upon verbal information and verbal confirmation from India that an arrest warrant has been issued.

6. The applicant’s representative noted that the Department had not provided a copy of any arrest warrant and referred the Tribunal to the only document that the applicant had been able to locate in the nature of a warrant (Annexure A to the written submissions received by the Tribunal on 5 March 2019). The applicant told the Tribunal that he obtained the document by email from his lawyer in India but he does not know where they got the document from. That translation of the document appears on its face to be dated [October] 2011 and addressed to a ‘[Mr B] S/o [Mr C]’ requiring him to appear at court on [in] November 2011. The Tribunal accepts that that document is a notice directed to the applicant to appear at court and despite the use of the word ‘Warrant’ on the face of the document, the Tribunal is satisfied that that document is not an arrest warrant but rather is a notice to appear in court on a set date and time.

7. It is acknowledged in written submissions that the applicant has been declared a proclaimed offender and that the Indian Criminal Code contemplates that a person will only be declared a proclaimed offender after an arrest warrant has been issued (s.82 of the Indian Criminal Code). It is further contended that because the purported warrant is not an arrest warrant, an arrest warrant has not been issued, and the applicant being named a proclaimed offender is therefore an error.

8. As submitted by the applicant, the Department has not provided a copy of an arrest warrant issued against the applicant. As regards the document provided by the applicant to the Tribunal described by the applicant as a purported warrant, obtained by the applicant via his own enquiries in India, that document on its face does not authorise or direct the applicant’s arrest or authorise or direct a police officer to take the applicant into custody and then to take him before the court. Further, unlike an arrest warrant, that document, on its face, is directed to the applicant rather than the police. As discussed at both hearings with the applicant, the Tribunal is of the view that the purported warrant is more in the nature of a Notice to Appear at Court or the like and not an arrest warrant. The Tribunal is satisfied and finds that the purported warrant is not an arrest warrant.

9. However, that is not the end of the matter. The Tribunal discussed with the applicant at hearing that there may be some evidence before the Tribunal suggesting that the applicant has been the subject of an arrest warrant and on the other hand there may be some evidence before the Tribunal suggesting that he has not.

10. The applicant’s representative orally submitted at the hearing on 10 May 2019 that his understanding is that the information that the Department relied upon was based upon someone in the Department’s Australian office being in contact with someone else in the Department’s New Delhi office, who was in contact with someone else again in the Department’s New Delhi office, who in turn was in contact with a rural police officer, who stated that the applicant was the subject of an arrest warrant. By way of contrast, it was submitted that it would be very surprising if [numerous] police clearance certificates were issued for the applicant if there was in fact an arrest warrant. He continued that given the issuing of [numerous] such certificates, it would have been prudent of the Department to have at least obtained a copy of the arrest warrant rather than rely just upon verbal advice.

11. The applicant’s representative also orally submitted at hearing on 10 May 2019 that the purported warrant is dated [October] 2011 and the proclaimed offender declaration was made [in] February 2012 which suggests that it is in fact the purported warrant that led to the proclaimed offender declaration being made and the purported warrant is not an arrest warrant. The Tribunal noted that another way of looking at the matter is that the purported warrant in October 2011 was some sort of notice for the applicant to appear in court and that when the applicant did not appear in court, an arrest warrant was then issued and when the arrest warrant was not able to be served, it was then that the proclaimed offender declaration issued. The applicant’s representative acknowledged that that may also have been a possible scenario but indicated that he had no way of offering a view on that. The Tribunal accepts that neither the applicant’s representative surmising as to the process nor the Tribunal’s surmising as to the process is satisfactory given the lack of evidence before the Tribunal as to what process actually occurred. The Tribunal discussed with the applicant’s representative that, rather, than place weight on any such suppositions, the Tribunal may instead prefer the uncontested evidence that the applicant has been declared a proclaimed offender and that the country information is that an arrest warrant precedes a proclaimed offender declaration.

12. The Tribunal therefore considered the other evidence before it in relation to this issue including, as follows:

    (a)Information obtained by the Department that the applicant appeared to have been named a proclaimed offender in India. Notably, the applicant in evidence agreed that he has been named a proclaimed offender and stated that his father is taking court proceedings in India to have his name cleared. The applicant’s representative noted in paragraph 8.3 of the written submissions that the applicant appears to be have been declared a proclaimed offender on or about [January] 2012.

    (b)As discussed with the applicant and hearing, and as referred to in paragraph 17 of the applicant’s representative’s submissions, s.82 of the Indian Criminal Code contemplates that a person will be declared a proclaimed offender after an arrest warrant has been issued.

13. The applicant therefore does not dispute that: 1) he has been named a proclaimed offender in India; and 2) that a person will be named a proclaimed offender after the issue of an arrest warrant against them. It would therefore logically follow that the applicant has been the subject of an arrest warrant.

14. However, it is submitted on behalf of the applicant that notwithstanding the applicant having been named a proclaimed offender, a declaration that is preceded by the issue of an arrest warrant, the applicant has nevertheless not been the subject of an arrest warrant. In support of that submission, the applicant relies upon:

    (a)The fact that the Department has not provided a copy of any arrest warrant, and the only document that is able to be located, by the applicant himself, is the purported warrant, which is not an arrest warrant.

    (b)The issue of [numerous] police clearance certificates to the applicant by the Indian High Commission in [City 1] during the applicant’s time in Australia and the failure of the Indian High Commission, with ability to request assistance from the Australian authorities, to make attempts to give effect to the arrest warrant, notwithstanding the applicant having provided his passport and residential address in Australia to the Indian High Commission on four occasions, and also his mother’s and father’s details when applying for the certificate. Further, the applicant has obtained a new passport, and supplied his name, parents’ details and address, and still no issues arose even when applying for a new passport.

    (c)The proclaimed offender declaration was erroneously made in breach of the Indian Criminal Code.

15. The Tribunal considered each of these contentions in turn.

    The Department did not provide a copy of any arrest warrant and the only document able to be located, by the applicant himself, the purported warrant, not being an arrest warrant

16. It is submitted on behalf of the applicant that the Department conducted an investigation into the arrest warrant, which lasted over a year, and failed to obtain a copy of the written arrest warrant. The submission referred the Tribunal to a previous case[5], which demonstrated that the Department is able to obtain a copy of an arrest warrant and that Indian authorities had been willing to provide these to the Department in the past. It is further submitted that if the Department had obtained a written copy of the arrest warrant, it would have been provided with a copy of the purported warrant and would have been satisfied that the purported warrant was not an arrest warrant. The Tribunal accepts that the purported warrant is not a written arrest warrant that has been obtained by the Department. However, be that as it may, it does not follow that there is not or has not been an arrest warrant of which the applicant is the subject, including in the form suggested in paragraph 16 of the applicant’s representative’s submissions. Rather, as noted by the delegate in their decision record, and as referred to earlier in these Reasons, the Department noted that it had information that suggests that the applicant has been the subject of an arrest warrant. This is consistent with the uncontested evidence that the applicant has been named a proclaimed offender, a declaration which is preceded by the issue of an arrest warrant in the subject’s name. There is no evidence before the Tribunal as to why the written arrest warrant preceding the proclaimed offender declaration has not been obtained by the Department and is not in evidence before the Tribunal. There may well be a reason for the absence of the document. While it would be preferable that such a document was able to be produced, its absence now does not mean that it did not exist. The Tribunal does not accept that the absence of a written arrest warrant means that that is not nor has been an arrest warrant of which the applicant has been the subject. Rather, in the Tribunal’s view, the Tribunal also has to take into account all of the other relevant evidence to reach a conclusion as to whether the applicant has ever been the subject of an arrest warrant.

    The issue of [numerous] police clearance certificates by the High Commission of India and the failure of the High Commission of India, with ability to request assistance from the Australian authorities, to make attempts to give effect to the arrest warrant, notwithstanding the applicant having provided his passport and residential address in Australia to the High Commission of India on [numerous] occasions

    [5] 0909574 [2010] MRTA 883

17. The Tribunal accepts the evidence before it that the applicant has received [numerous] police clearance certificates, issued [2012], [2013], [2014] and [2016][6] via the High Commission of India during his time in Australia. It is submitted on behalf of the applicant that each of these certificates was issued after October 2011, and that if an arrest warrant had been issued in (or before) October 2011[7], the Indian authorities would not have issued the certificates, thus proving that the applicant has not been the subject of an arrest warrant.

    [6] Folios 95 to 96 (both sides) of Tribunal file

    [7] October 2011 is stated in the applicant’s written submissions by reference to the date of the purported warrant

18. Notably the certificates all contain the following certification:

    This is to certify that as per the available records, there is nothing adverse against the name of the applicant whose details are stated here; so far as his/her stay in India is concerned, which would have rendered him/her ineligible for grant of travel facilities including visa/immigration/any other service for/in AUSTRALIA.

19. The Tribunal accepts that police clearance certificates were issued to the applicant in the name [Mr A] as is shown on the face of the certificates. As discussed with the applicant at the hearing on 10 May 2019, given the FIR report named the first accused as ‘[Mr B] … S/O [Mr C]’, that is utilising a different spelling of the name ‘[Spelling 1]/[Spelling 2]’, the Tribunal cannot be satisfied that the subject of the certificates is the same subject of the arrest warrant such that the Tribunal places no weight on the certificates. The Tribunal is therefore not satisfied that the [numerous] police clearance certificates are conclusive of the applicant not having been the subject of an arrest warrant.

20. Further, as discussed with the applicant at hearing, while the Tribunal accepts the applicant’s evidence at the 10 May 2019 hearing that, as part of the process of applying for the police certificates, he had to provide his family address in India and his parents’ details which would have been another way of checking his records/the absence of any arrest warrant, no such details are stated on the face of the certificates. Further, notably it is not in dispute that the applicant has been declared a proclaimed offender, albeit the applicant submits, incorrectly. Clearly the new passport has been issued despite the proclaimed offender declaration, which is not disputed.

    The proclaimed offender declaration was erroneously made in breach of the Code

21. It was submitted on behalf of the applicant that the proclaimed offender declaration was erroneously made in breach of the Indian Criminal Code. The applicant’s evidence at both hearings was that his father, on his behalf, had instructed lawyers in India to have the proclaimed offender declaration quashed. At the first hearing on 10 March 2019, the applicant’s evidence was that there was to be a hearing in the High Court in India [in] March 2019 in relation to those proceedings but that he did not have any documentation about those proceedings. At the second hearing, on 10 May 2019, the Tribunal queried the applicant in relation to an update in relation to those proceedings. The applicant told the Tribunal on 10 May 2019 that there had not yet been a hearing in relation to that and that he still did not have any paperwork.

22. Given the lack of any documentary evidence supporting that proceedings are being pursued in India for quashing of the proclaimed offender declaration, the Tribunal is unable to be satisfied as to the existence or status of those proceedings. Nonetheless, even if there are proceedings that are being pursued, and even if ultimately there is an order or judgment or the like quashing the proclaimed offender declaration, it does not change that for there to have been a proclaimed offender declaration, the Indian Criminal Code requires that such a declaration be preceded by an arrest warrant.

23. The Tribunal is not bound by the rules of evidence, including in relation to hearsay and the Tribunal acknowledges the applicant’s concerns about the reliability of second, third or fourth-hand verbal information obtained by the Department. However, it is not in dispute that the applicant has been declared a proclaimed offender, a process that is preceded by the proclaimed offender having been the subject of an arrest warrant. The Tribunal has canvassed these matters at length and on balance, having had regard to all matters before it, the Tribunal is of the view that the applicant has been the subject of an arrest warrant.

24. The Tribunal therefore finds, that by stating ‘no’ in response to the question “Has any applicant ever been the subject of an arrest warrant or Interpol notice?”, the applicant gave an answer that was incorrect.

    Has the applicant has ever been known by any other names, including aliases or any alternative spelling of any names?

25. The s.107 notice also contends non-compliance on the basis that the applicant has been known by other names and incorrectly answers a question in that regard in his visa application.

26. The applicant denies that he has been known by any other names and that he has never used another name other than the one which appears on his passport and was provided to the Department in his visa applications. Further, the applicant’s position is that he has never authorised anyone to spell his name differently. The applicant does not dispute that his name was spelt differently in the FIR but does not know why that was the case and maintains that he has never used any aliases, as is supported by a number of official documents provided to the Tribunal. It was submitted on his behalf that the fact that other people, without the applicant’s authorisation or knowledge, inserted his name into documents and misspelt his name does not mean that the applicant is known by other names.

27. The evidence before the Tribunal is that the FIR report contained the applicant’s name by reference also to his father’s name and his address in India, but that the name was misspelt.

28. The Tribunal accepts that the applicant did not authorise or instruct the use of his name, or the misspelling of his name in the FIR. However, it is clear that he is the person referred to in the FIR, the first accused, is the applicant, given the reference to his father’s name and his address. It follows that, albeit without the applicant’s knowledge, he has been known by another name, specifically an alternatively spelled version of his name.

1. The Tribunal therefore finds that by stating ‘no’ in response to the question “Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names?”, the applicant gave an answer that was incorrect.

   Conclusion

2. As the Tribunal has found that the applicant gave an answer that was incorrect in relation to the arrest warrant, and an answer that was in correct in relation to his name, there has been non-compliance in the way described in the s.107 notice.

   Issue 3 - Should the visa be cancelled?

3. 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).

4. 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: ss.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.

5. 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:

   (a)Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;

   (b)Whether there would be consequential cancellations under s.140;

   (c)Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child; and

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

6. The Tribunal therefore considered the prescribed circumstances and other potentially relevant matters, including the matters raised by the applicant.

   The correct information

7. The correct information is that the applicant has been the subject of an arrest warrant and that he has been known by an alternatively spelled name.

8. The applicant’s position is that he was neither aware of the arrest warrant nor aware of the misspelt use of his name. The Tribunal accepts that the applicant was not aware of the misspelt use of his name. The position is less clear as to whether the applicant was aware of having been the subject of the arrest warrant at the time of the visa application. The visa application was made on 2 September 2016. The applicant’s evidence was that he did not become aware of an arrest warrant, or an alleged arrest warrant, until receipt of the NOICC dated 23 August 2017. However, on the applicant’s evidence, he did become aware in 2010, via his father, that allegations had been made against him to the police in relation to alleged [serious offences]. Even if, as stated by the applicant, his understanding was that the police, some eight or nine months later, concluded that the allegations were false, the applicant was aware, at the time of the visa application, that there had at least been a previous police investigation involving him at the time of the visa application. The Tribunal is unable to be satisfied as to the applicant’s knowledge of the arrest warrant, or not, at the time of the visa application. The Tribunal therefore weighs the applicant’s purported lack of knowledge of the arrest warrant neither in favour nor against the exercise of the discretion.

9. The Tribunal accepts the applicant’s lack of knowledge of the use of his misspelt name and places some weight on this as a reason against exercising the discretion to cancel the visa.

   The content of the genuine document (if any)

10. On the evidence, nothing arises in relation to this factor and it is not necessary for the Tribunal to consider this factor.

    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

11. The Tribunal is satisfied that the decision to grant the applicant a Subclass 887 (Skilled - Regional) visa was based partly on incorrect information.

12. It was submitted on behalf of the applicant that if the applicant had known about these matters at the time of the visa application, and further enquiries had been made of him by the Department, he would have proceeded to have it sorted out in India, as it now seems can be done in his absence, and he would requested the Department to allow time for this to be taken into account, and it would have been open to the Department to await the outcome of the High Court proceeding in India before finalising the visa application, which would have been the preferable approach.

13. It was further submitted that the applicant did not intentionally mislead the Department as he left India nearly two years prior to the date of the purported warrant and it was never served upon him.

14. The Tribunal is very cognisant of the fact that there has been no finding of guilt in relation to the alleged charges in the FIR against the applicant and of the applicant’s position that the FIR is purported to have been cancelled.

15. The Tribunal observes that while the delegate has raised queries in relation to the documents provided by the applicant in response to the NOICC, there is no conclusive evidence before the Tribunal of bogus documents.

16. While the delegate’s decision is not evidence as such before the Tribunal, notably the delegate, an officer of the Department, expressed the view that had the delegate (deciding the visa application) known that the applicant was the subject of an arrest warrant, the visa would not have been granted.

17. The Tribunal observes that one of the requirements for grant of the visa was cl.887.223 of Schedule 2 to the Regulations, which requires that certain public interest criteria be met. This includes Public Interest Criterion (PIC) 4001, relating to satisfying a character test, which the relevant delegate of the Department may not have been satisfied was met if the correct information was known.

18. The applicant’s representative submitted at the second hearing on 10 May 2019 that if the applicant had answered yes to the subject questions in the visa application, he would have made additional submissions to the Department and he would have advised that he had lawyers in India who were having the proclaimed offender declaration quashed. The Tribunal noted, that on 10 May 2019, more than 18 months after the latest possible date (the date of the NOICC being 23 August 2017), the applicant could have become aware of the issues the subject of the cancellation, and that nothing had been resolved in that regard. The Tribunal noted that the applicant had advised at the [March] 2019 hearing that the High Court hearing in India was taking place [in] March 2019 and yet nearly two months later, on 10 May 2019, the applicant had no further information in relation to those proceedings, nor had he provided any documentation in relation to those proceedings. The Tribunal discussed its concern with the applicant that it therefore might form the view that the decision to grant the visa was based partly on the incorrect information, and any reasonable time that may have been allowed to clarify the events to which the incorrect information related would not have alleviated any concerns in a reasonable time period for the purposes of granting the visa in full knowledge of the correct information. Notably, also, over five weeks after the 10 May 2019 hearing, despite these issues being clearly raised with the applicant, the applicant has not availed himself of providing the Tribunal with further information in relation to the stated High Court proceedings in India in relation to the having the proclaimed offender declaration quashed.

19. Having had regard to all matters, the Tribunal is of the view that had the Department been aware of the correct information, it is unlikely the visa would have been granted, whether after allowing further reasonable time or not to pursue quashing of a proclaimed offender declaration or otherwise in India.

20. It follows that the Tribunal concludes that the decision to grant the visa was based partly on incorrect information, and the Tribunal places significant weight on this factor as a reason for exercising the discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

21. As already noted, the Tribunal has been unable to be satisfied as to the applicant’s knowledge of being the subject of an arrest warrant at the time of the visa application. Although the Tribunal has found the issuing of the police clearance certificates does not definitively rule out that the applicant was the subject of an arrest warrant, the Tribunal accepts that the applicant could understandably have accepted police clearance certificates being issued to mean that he did not have any continuing issues with the authorities in India.

22. The Tribunal places some weight on these matters in the applicant’s favour.

    The present circumstances of the visa holder

23. The applicant has been living in Australia since July 2008 as the holder of various visas and at the time of cancellation was a permanent resident. The Tribunal accepts the applicant’s evidence that pending resolution of the visa cancellation issue, he has had difficulty finding permanent and stable employment in Australia. The Tribunal accepts, however, that the applicant has significant work experience in Australia, including as a [Occupation 1] in the [State 1].

24. The applicant’s evidence was that he no longer has a girlfriend in Australia but does have  [cousins] in Australia, and their wives and children.

25. The Tribunal acknowledges the applicant’s now long-standing time in Australia and his successful study and employment history and places weight in the applicant’s favour on his present circumstances as supporting that the discretion to cancel the visa should not be exercised.

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

26. As regards s.107(2), which requires that if a visa holder responds to the NOICC, they must do so without providing incorrect information, as has already been noted earlier in these Reasons, the delegate raised issues in relation to reports provided by the applicant in response to the NOICC and the Australian High Commission in New Delhi, which obtained information that, contrary to the reports provided, the applicant is still the subject of an arrest warrant.

27. Nonetheless the Tribunal accepts the evidence at hearing that the applicant was merely passing on documents that he received from India and there is no conclusive evidence before the Tribunal of bogus documents. The Tribunal accepts that it may well be that there are explanations for the discrepancies identified in the reports.

28. There is otherwise no evidence to indicate that the applicant has subsequently failed to meet any obligations under Subdivision C of Division 3 of Part 2 of the Act and the applicant cooperated with the Department in replying to the Notice of Intention to Cancel.

29. The Tribunal places some weight on this cooperation in favour of the applicant on this consideration and places no adverse weight upon the matters raised by the delegate in relation to s.107(2).

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

30. There is no evidence of any other instance of non-compliance by the applicant.

    The time that has elapsed since the non-compliance

31. Just over two and half years has elapsed since the non-compliance. The Tribunal accepts that since that time the applicant has become more settled in Australia, albeit with limitation since cancellation of the visa, and places some weight on this factor in the applicant’s favour on the basis of the applicant’s further time living in Australia.

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

32. There is no evidence to indicate that the applicant has breached the law since the non-compliance.

    Any contribution made by the holder to the community

33. Based on the evidence, the Tribunal finds that the applicant has successfully completed studies in Australia, including a Diploma of [Subject 1] and a Diploma of [Subject 2], and has made significant contributions to the Australian community, working between August 2013 and November 2016 in the -[State 1] as a [Occupation 1], an extremely challenging role which greatly benefits the Australian community and disadvantaged Australians, as is supported in a personal reference in evidence before the Tribunal. The Tribunal further finds that the applicant has generously donated, and continues to donate, towards [a charity] in Australia.

34. The Tribunal places weight on these contributions made by the applicant to the community in the applicant’s favour in considering the discretion to cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

35. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

36. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.109 of the Act, may apply for certain prescribed classes of visas but not others. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation into account. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

37. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which would weight against exercising the discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140

38. There is no evidence to indicate that there would be consequential cancellations under s.140 if the applicant’s visa is cancelled.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

39. There is no evidence to indicate that any international obligations would be breached as a result of cancellation.

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

40. The applicant’s evidence was that his father had previously worked in [City 2] and contributed significantly to the applicant’s ability to come to Australia to study. However, his father was injured in 2014 and has not been able to work. It would be very hard for him and his family if he cannot remain in Australia and send money to his family. He wants to fulfil his dream of staying in Australia and doing further study and work in the mental health area.

41. The Tribunal also discussed with the applicant that despite his closeness to the family, he has not returned to India since 2010 and it might be suggested that the reason why he had not returned was because he was aware of a warrant against him in India. The applicant told the Tribunal that it is only because of finances that he has not returned home. The Tribunal noted, however, on the applicant’s evidence that his mother and father visited him in 2016. The applicant stated that this was just after he obtained permanent residency. The applicant said he paid for them to visit. The Tribunal suggested that it would have been less expensive for the applicant, as one person, to visit India rather than for two people to visit Australia. The Tribunal suggested to the applicant that it could in fact be the case that he had not returned to India since 2010 because of the allegations that had been made against him, of which his father had advised him in 2010. The applicant denied this was the case. There was also a reason for the applicant’s parents to come to Australia at the time because an arranged marriage with a young lady on [City 3] was then contemplated, although did not ultimately go ahead. The Tribunal accepts the applicant’s reasons for remaining continuously in Australia since 2010 and places no weight adverse to the applicant on these matters.

42. The Tribunal accepts that the applicant has resided in Australia for many years and has invested a lot of time and money in his studies and work in Australia and that there would be financial, psychological and emotional hardship to the applicant and his family should the visa be cancelled. The Tribunal places significant weight in the applicant’s favour on this factor.

    Other matters

43. The applicant’s representative submitted that the Tribunal should place more reliance upon the Indian issued government documents, being the police clearance certificates and the applicant’s new passport, rather than the proclaimed offender declaration which, it is submitted, was not necessarily issued by the government. The Tribunal has discussed its position in relation to reliance on the police clearance certificates and the passport at length in these Reasons and rejects the submission that regard should be had to these documents in preference to the proclaimed offender declaration. This is particularly so given the applicant does not dispute that a proclaimed offender declaration has been made, a declaration which pursuant to the Indian Criminal Code is preceded by an arrest warrant and the applicant, although asserting that there are High Court proceedings in progress, has not, despite opportunity, provided any corroboration of those proceedings.

    Conclusion

44. The Tribunal has considered the totality of the applicant’s circumstances in considering the discretion as to whether the visa should be cancelled.

45. Whilst the Tribunal has found some factors weigh in the applicant’s favour, as canvassed earlier in these Reasons, the Tribunal gives particular weight to its finding that had the correct information been disclosed at the time of the visa application, the visa would unlikely have been granted, even if time had been allowed for further enquiries. Notably, at the time of decision, the evidence before the Tribunal is that the applicant is still a proclaimed offender in India, albeit that he has been convicted of no charges in relation to the circumstances in relation to which the FIR relates.

1. The Tribunal has decided that there was non-compliance by the visa holder 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.

   OTHER MATTERS

   Section 375A certificate

100.   The Department’s file contains a non-disclosure certificate (issued by the Department pursuant to s.375A of the Act) relating to information on its file.

101.   The Tribunal considers the certificate to be valid and provided a copy of the certificate to the applicant at hearing, and gave the applicant and his representative an opportunity to comment on the validity of the certificate. No submissions were sought to be made.

102.   The Tribunal indicated to the applicant that there was only one part of the information to which the certificate referred which the Tribunal considered was of possible relevance. The Tribunal put to the review applicant[8] that the Department has received information that a person with the same name as the applicant, and the same named parents as the applicant, and the same birthdate, has been charged with rape and abduction charges and the information provided is that the victim’s family and all of the village have requested that the applicant be sent back because the issues are getting worse. The Tribunal indicated that why this information might be relevant because it might suggest to the Tribunal, together with all information before the Tribunal, that it was well-known in the applicant’s home village at the time of this alleged offence that there were allegations required to be answered, which may or may not be subject to an arrest warrant, which might cause the Tribunal to question whether the applicant did have knowledge of an arrest warrant at the time of the visa application and therefore gave an incorrect answer. If the Tribunal did reach that conclusion, it might mean that the Tribunal would affirm the decision to cancel the visa, subject to consideration also of the discretionary considerations in relation to cancelling a visa.

[8] Pursuant to section 359AA of the Act

103.   The applicant confirmed that he understood the information discussed. The applicant requested an adjournment to discuss the matter with his representative. The adjournment was granted. Following the adjournment the applicant’s representative advised the Tribunal that the applicant actually had a copy of the document containing the information referred to by the Tribunal.

104.   The applicant told the Tribunal that he did not know who provided the information. There is no identification of names. The applicant told the Tribunal he disagrees with the information. He said that if it was the case that if the whole village was chasing him, his family would have known about it and told him.

105.   The Tribunal has placed no weight on this information before it given the anonymous and unsubstantiated nature of the information.

DECISION

106.   The Tribunal affirms the decision to cancel the applicant’s Subclass 887 (Skilled - Regional) visa.

Susan Trotter
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.