2014338 (Migration)

[2021] AATA 5228

2014338 (Migration) [2021] AATA 5228 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014338

MEMBER:Andrew McLean Williams

DATE:20 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 20 October 2021 at 1:47pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – incorrect information in visa application – bogus document – employment reference – departmental verification checks – dob-in report – consideration of discretion – deliberate provision of a bogus document – visa grant partly based on claimed employment – subsequent conduct of the applicant – other instances of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

Migration Regulations 1994 (Cth), 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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs cancelling the Applicant’s Subclass 482 (Temporary Skill Shortage) visa, pursuant to s.109(1) of the Migration Act 1958 (‘the Act’).

2. The Delegate cancelled the Applicant’s visa on 18 September 2020 on the basis that the Applicant had not complied with sections 101(b) and s.103 of the Act, in circumstances where that non-compliance was not considered to be outweighed by any discretionary considerations in favour of allowing the Applicant to retain her visa, notwithstanding the fact of that noncompliance.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The self-represented Applicant appeared before the Tribunal initially on 27 July 2021 to give evidence and make submissions.  Owing to communication difficulties when receiving telephone evidence from witnesses in India, a further hearing was scheduled for 17 August 2021, for the taking of further evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 s.107(2) of the Act. Broadly speaking, these provisions require non-citizens to provide correct information in their visa applications and on their passenger cards; not to provide bogus documents; to notify the Department of any incorrect information of which they become aware; and to notify the Department regarding any relevant changes in circumstances, after the lodgement of their visa application.

7. 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, thereby providing the visa holder with particulars of their 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.

8. 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 did comply with the statutory requirements.

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

9. On 17 August 2020 the Applicant was invited to make comment in response to a Notice of Intention to Consider Cancellation (‘NOICC’), issued under s.107. The non-compliance identified and particularised in the NOICC was an alleged non-compliance with sections 101(b) and 103 of the Act, by the Applicant having provided allegedly false information and bogus documents. Specifically, the Applicant was alleged to have provided false employment references, referable to her previous employment as a registered nurse in India, as follows:

   -an employment reference from [Hospital 1] dated 17 November 2011 as had been signed by a [Sister A] (nursing superintendent) and a [Dr B], whereby it had been specified that the Applicant had worked as a nurse at [Hospital 1] from 1 November 2008 until 15 November 2011; and

   -an employment reference dated 3 April 2015 from [Hospital 2], signed by a [Ms C] (Director of Nursing) and by a [Dr D], (Consultant Surgeon), specifying that the Applicant had worked as a nurse in the medical and surgical wards of [Hospital 2] from 1 December 2012 until 31 March 2015. 

10. Employment integrity checks conducted in India at the behest of the Department, as well as other information received by the Department on the basis of a dob-in report, and from other information shared with the Department by immigration authorities in Canada, all called into question the provenance of each of the employment references, now specified, above. Local checks in India had revealed no evidence confirming the Applicant having worked at either hospital in the specified periods. 

11. After considering submissions from the Applicant dated 7 September 2020 given by her in response to the NOICC, the Delegate concluded that the employment references were bogus documents given by the Applicant in support of her visa application, in breach of s.103, by reason that these were either counterfeit, or had been subject to alteration after their issue by a person who did not have the authority to do so, as described in s.5(1)(b) of the Act; and that in consequence the Applicant also did not comply with s.101(b) of the Act.

12. In her oral testimony before the Tribunal, and previously in a statutory declaration made on 3 September 2020, the Applicant continues to maintain that she had worked at both hospitals in the date ranges specified; and that the employment references furnished by her in support of her visa applications(s) are genuine documents.

13. At the resumed Tribunal Hearing conducted on 17 August 2021, the Tribunal received evidence by telephone from [Dr B] the former Medical Director of the [Hospital 1], [Kerala], India.  Prior to the Tribunal hearing the Applicant had also submitted a statement dated 5 July 2021 signed by [Dr B] addressed as “To whom it may concern”; as well as another similarly addressed document from a [Ms E] (Registered Nurse), dated 3 September 2020. 

14. In his statement dated 5 July 2021, [Dr B] describes himself as the medical director of [a] hospital situated in a remote village in rural India, and confirms that the Applicant had been employed as a registered nurse at that facility from 1 November 2008, until 15 November 2011. 

15. In her written statement, [Ms E] specifies that she had also worked as a registered nurse at [Hospital 1] from 1 November 2007 until 31 May 2013, and had known the Applicant, both as a co-worker, and in her capacity as the Applicant’s supervisor, during the period 1 November 2008 until 15 November 2011.  [Ms E] was not however called to give oral evidence before the Tribunal.  The Tribunal is not prepared to attach any weight to her untested written evidence in this circumstance. 

16. As indicated above, [Dr B] did give oral evidence during the resumed Tribunal hearing on 17 August 2021.  As became clear from that evidence, [Dr B] is an elderly (now retired) medical practitioner, who had previously operated a small private hospital in Kerala, India. [Dr B] also said that the role of Medical Superintendent of [Hospital 1] has since passed to his son. 

17. [Dr B]’s evidence was to the effect that [Hospital 1] was a very small facility catering to an impoverished rural community; and that throughout his time in charge the hospital had no administrative staff, other than one patient admissions officer.  In these circumstances all wages were paid to staff in cash, by either [Dr B], or by his wife.  Cash payments were made on the basis that there were no local banking facilities, and because the local economy was conducted on a cash basis. 

18. [Dr B] was able to confirm that the Applicant had worked at [Hospital 1] between 1 November 2008 and 15 November 2011, and that he had also signed the more recent document dated 5 July 2021, that had been submitted to the Tribunal. 

19. The Tribunal is satisfied with the oral evidence given by [Dr B], and therefore now also accepts the provenance of the original employment reference dated 17 November 2011 from [Hospital 1], as had been previously provided by the Applicant in support of her original visa applications (Subclass 489 and Subclass 482).

20. The Applicant also provided a work reference from [Hospital 2] in support of her visa application(s).  The provenance of this document was similarly rejected by the Delegate.  This employment reference, presented on hospital letterhead dated 3 April 2015, and reputed to have been signed by a [Ms C] (Director of Nursing) and [Dr D] (Consultant Surgeon), specifies that the Applicant worked at that facility from 1 December 2012, until 31 March 2015. 

21. Yet, Departmental verification checks conducted in India on 24 August 2016 in relation [Hospital 2] had revealed that:

    ·[Hospital 2] does not have a website;

    ·one of the landline numbers specified on the employment letter dated 3 April 2015  belonged to one of the referees ([Ms C]) personally, rather than to the hospital;

    ·the other landline telephone numbers on the letterhead were called by Australian High Commission staff in India several times, and at deliberately varying times, yet these calls always went unanswered.

22. The concerns noted in the immediately preceding paragraph were then further galvanised by a dob-in report received by the Department relating to the Applicant, and in consequence of information shared with the Department of Home Affairs by Canadian Immigration, which  had investigated and confirmed other cases of fraudulent employment references from [Hospital 2], that had been submitted as supporting documents by applicants seeking Canadian visas. 

23. Copies of employee attendance records from [Hospital 2] were obtained by the Canadian immigration authorities for the months of April 2013, November 2013, February 2014, and March 2014.  These were produced for inspection by [Ms C], during a Canadian immigration site visit to [Hospital 2], on 27 October 2016.  The Applicant’s name does not appear among the names of hospital employees in any of those months, despite these months each falling within the period of the Applicant’s claimed employment at the hospital.  The Applicant’s evidence before the Tribunal in response was that she had worked at the Hospital during each of those months and that she did not know why the records inspected by Canadian immigration would not show that.

24. Prior to the hearing of this Application for review, the Applicant had submitted the following further documents to the Tribunal Registry in support of her Application for review:

    ·An employment reference, again presented on letterhead from [Hospital 2], addressed ‘to whom it may concern’, again signed by [Ms C], this time dated 5 September 2020.

    ·A letter addressed ‘to whom it may concern’, signed by a [Ms F], dated 2 July 2021.

25. The letter prepared by [Ms C] dated 5 September 2020 indicates that she was the Director of Nursing at [Hospital 2] from 28 May 2009 until 31 October 2018.  That letter also specifies that the Applicant worked as a Registered Nurse at [Hospital 2] from 1 December 2012 until 31 March 2015; and had been employed at the hospital in each of April and November 2013, and in February and March, 2014.  [Ms C] also specified that the hospital had faced some legal issues, and in consequence it had permanently closed, in 2018.

26. [Ms C] also gave evidence to the Tribunal by telephone during the resumed Tribunal hearing on 17 August 2021.  [Ms C] confirmed that the hospital had faced financial and legal difficulties after the death of the hospital director [Dr D] in 2016, and that the Hospital had subsequently closed, in late 2018.  [Ms C] also confirmed that she had been a signatory on the Applicant’s employment letter dated 3 April 2015, and on the more recent employment confirmation letter, that dated 5 September 2020. 

27. The Tribunal challenged [Ms C] that it appeared most unusual that she was still able to write an employment reference on hospital letterhead on 5 September 2020 in circumstances in which she had ceased to be an employee of the hospital on 31 October 2018; and in circumstances in which the hospital had ceased to operate for a period of almost two years, prior to the date of that letter.  In response, [Ms C] told the Tribunal that [Dr G] - the daughter of the late [Dr D] - had given her some hospital letterhead in order that [Ms C] could help former nursing staff of the hospital, in the event that circumstances arose in which one of more of them required confirmation of their former employment. It was put to [Ms C] that this was improbable and had not happened, and that instead, [Ms C] had herself procured the letterhead without the knowledge or permission of the hospital; or had herself manufactured a replica supply of hospital letterhead for her own purposes, which included her assisting other persons, such as the Applicant, to obtain overseas nursing employment.  All of this was denied by [Ms C].

28. The fact of the visit to [Hospital 2] on 27 October 2016 by Canadian Immigration officers was also put to [Ms C]; and that [Ms C] had spoken to those officers on that occasion.  [Ms C] was able to recall and confirm that having happened. 

29. It was then put to [Ms C] that the Canadian officers had requested that she produce the hospital’s employment records for their inspection.  [Ms C] was able to confirm that she had produced those records on 27 October 2016, and that these had been inspected by the Canadians.  It was then put to [Ms C] that the employment attendance records for April 2013, November 2013, February 2014, and March 2014 - as had been photographed by the Canadian officers that day - did not reveal the Applicant as having worked at the hospital in any of those months, and the Canadian officers had thereby also confirmed that other persons who had used similar employment letters from [Hospital 2] to support applications for work visas to Canada had been revealed as having not been employees of the hospital in the claimed periods of their employment, either.  In response to those propositions, [Ms C] only reiterated that the Applicant had been an employed nurse working in the hospital during the nominated months, and asserted that the employment records inspected by the Canadian immigration officers were incomplete, on the basis that attendance records for nurses were kept on a department-by-department basis.  The Tribunal notes that [Ms C] did not suggest that the inspected employment records were not a complete snapshot to the Canadian officers at the time of their site visit and inspection.  In the Tribunal’s assessment, [Ms C]’s evidence and the manner of her now giving it is so suspicious as to be unreliable, such that the Tribunal could not, if acting reasonably, ever accept it. 

30. It was further put to [Ms C] that a [Dr G] (the daughter of the former hospital director the late [Dr D]), had informed the Canadian immigration officers on 27 October 2016 that four employment references from [Hospital 2] - as had been prepared on behalf of four Canadian visa applicants and ostensibly signed by her father that had been shown to her by the Canadian officers on 27 October 2016 - were not recognised by [Dr G] as bearing her father’s signature.  In response, [Ms C] was adamant that the late [Dr D] had signed the letter dated 3 April 2015, and she then sought to further reiterate that the Applicant had worked at [Hospital 2] in the periods specified by her in the two employment references that have now been signed by her. 

31. In the absence of further and persuasive evidence to support [Ms C] asserting that she had been given hospital letterhead to be used by her for official purposes, the Tribunal cannot accept that hospital letterhead from a now closed hospital would be provided to a former staff member, in the manner now claimed.  The claim is improbable, and deeply suspicious.  Moreover, [Dr G] had been interviewed by Canadian Immigration Officers on 27 October 2016 and had informed them that she was aware of instances of “fraudulent hospital letterheads floating around” and that a complaint had been made to the police in Bangalore on 9 June 2016 about that.  Nor does the Tribunal accept [Ms C]’s denial that she had neither procured nor produced hospital letterhead, without approval, for her own purposes, including the assistance of other persons - such as the Applicant - to obtain overseas nursing employment. 

32. In her letter dated 2 July 2021, [Ms F] specifies that she was a registered nurse and co-worker with the Applicant at [Hospital 2], and confirms that the Applicant worked alongside her at that hospital during the period 1 December 2012 and 31 March 2015.  [Ms H] was not however made available to give oral evidence before the Tribunal, such that the reliability of her statement remains completely untested.  Because of that, the Tribunal is unwilling to attach any weight to [Ms H]’s statement.

33. There are no other contemporaneous extrinsic documents, such as (for example) payslips, timesheets, or staff identification cards from the claimed period of the Applicant’s employment at [Hospital 2] that might lend corroborative support for the Applicant’s own claim of her having worked at [Hospital 2].  In the circumstances of this case the Tribunal is not prepared to accept the oral testimony or other evidence of the Applicant in the absence of any similar corroborative documents.  For reasons already elaborated, the Tribunal does not regard [Ms C] as being corroborative of the Applicant. 

34. On the balance of probabilities, the Tribunal concludes that the employment reference dated 3 April 2015 from [Hospital 2] constitutes a bogus document.

35. For the foregoing reasons, the Tribunal finds that there was non-compliance with s.103 of the Act by the Applicant in relation to her employment at [Hospital 2], in the manner described in the s.107 notice.

    Should the visa be cancelled?

36. As the Tribunal has decided that there was non-compliance in a 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).

37. 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.

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

   The correct information/content of the genuine document

2. There is no acceptable evidence available to the Tribunal to confirm the claim made by the Applicant that she had worked as a registered nurse at [Hospital 2] during the period from 1 December 2012 until 31 March 2015.  The information relied upon by the Applicant in support of that claim, both at the time of the original visa application, at the time of her response to the NOICC, and again now before the Tribunal on the hearing of this Application for review - is of a highly questionable provenance.  On the balance of probabilities, the Tribunal concludes the impugned employment reference dated 3 April 2015 is a bogus document, deliberately produced in support of the Applicant’s visa application.  A very significant measure of weight is attached to this consideration by the Tribunal in favour of now affirming the visa cancellation.

   Whether the decision to grant the visa or immigration clear the visa holder was based wholly or partly on incorrect information or a bogus document.

3. Applicants for Subclass 482 visas are required to demonstrate employment in the nominated occupation - or a related field - for at least two years prior to the date of their visa application. 

4. The Applicant’s visa was granted partly on the basis of the Applicant’s claimed employment at [Hospital 2], and partly on the basis of her prior employment at [Hospital 1],  between 1 November 2008 and 15 November 2011.  The Tribunal now accepts the claim of prior employment at [Hospital 1], which was for a period exceeding two years.  The Tribunal therefore attaches weight to this consideration as being against visa cancellation.

   The circumstances in which the non-compliance occurred.

5. The circumstances in which the non-compliance with s.103 occurred are now described in these reasons. The Tribunal concludes that a bogus document was intentionally submitted by the Applicant in support of her application for an Australian visa. Considerable weight is attached to this consideration by the Tribunal in favour of affirming the visa cancellation.

   The present circumstances of the Applicant.

6. The Applicant is a [age] year old, divorced woman, with no children of her own.  The Applicant currently resides in Perth, with her sister [Ms I] (who is also a registered nurse), and with [Ms I]’s husband and children. 

7. [Ms I] gave evidence to the Tribunal on behalf her sister and informed that she had needed to lend money to the Applicant in order for the Applicant to come to Australia, which the Applicant is now still in the process of repaying to her.  [Ms I] also told the Tribunal that the Applicant has financial responsibility for their elderly parents in India, by reason that she is the only sibling among three sisters with sufficient spare financial resources to be able to support their parents in India financially.  In her own evidence the Applicant confirmed that she is financially supporting her parents, as well as repaying a debt to her sister, [Ms I].

8. The Applicant is now employed as a registered nurse by her current sponsoring employer, [Company 1].  The Applicant commenced with that employer on a full-time basis on 18 December 2018, and has worked at their [Suburb 1] General Practice since January, 2020. 

9. The Tribunal received evidence from [Ms J], the Human Resources Manager of [Company 1].  [Ms J] informed the Tribunal that the Applicant conducts a regular respiratory clinic on behalf of [Company 1], and is very heavily engaged in the on-going delivery of Covid-19 vaccinations to the community.  [Ms J] described the Applicant as a reliable worker, and informed the Tribunal that, in the event that the Applicant were to required to leave Australia, it would take “some months” for [Company 1] to find a suitable replacement for the Applicant.

10. The Applicant also expressed a concern that as a divorced woman she has limited prospects in India, and would face financial difficulties, and would not be able to support her parents in the same manner as is the case whilst she is living and employed in Australia.

11. The Tribunal now attaches some weight to these factors which are against cancellation of the visa.  

    The subsequent behaviour of the Applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act

12. The Applicant has continuously maintained her position that the impugned employment reference from [Hospital 2] dated 3 April 2015 is a genuine document, and that the claimed period of employment in that reference letter is correct information. 

13. The Tribunal has found the 3 April 2015 letter to be a bogus document, as is the 5 September 2020 letter subsequently produced by the Applicant in support of these review proceedings and her persisting efforts to demonstrate the provenance of the 3 April 2015 employment letter.  The Tribunal attaches very considerable weight in favour of visa cancellation to this conduct.

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

14. The Applicant lodged a Temporary Skilled (Regional) visa on 27 June 2016 which was refused on 5 December 2019 on the basis that this prior application was similarly supported (at least in part), by the same bogus document dated 3 April 2015 from [Hospital 2].  The Tribunal gives this consideration further significant weight in favour of now affirming the visa cancellation.

    The time that has elapsed since the non-compliance.

15. The visa was granted to the Applicant on 5 December 2018, such that 34 months have since transpired, throughout which period the Applicant has been employed as a registered nurse in Australia on a full-time basis.  The Applicant is also apt to have developed a number of social ties within the Australian community during this period.  The Tribunal attaches some weight to this consideration as now being against visa cancellation.

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

16. The Tribunal is not aware of any evidence of any other instances of breaches of Australian law by the Applicant, such that some weight is attached to this consideration in favour of non-cancellation of the visa.

    Any contributions made by the Applicant to the community in Australia.

17. The Applicant is employed full time as a nurse at the [Suburb 1] General practice by [Company 1], and is involved in the delivery of important healthcare services.  The sponsoring employer has informed that it would take several months to find a suitable replacement for the Applicant.  The Tribunal attaches some weight to these considerations in favour of non-cancellation of the Applicant’s visa.

    Matters arising under the PAM3 Guidelines

18. There are no consequential cancellations under section 140, and there is no evidence regarding the interests of any child whose interests may be affected by the Applicant’s visa cancellation. 

19. The Applicant is a citizen of India, and cancellation of the Applicant’s visa and her consequential removal to India would therefore not lead to the removal of the Applicant from Australia being an act undertaken in breach of Australia's international non-refoulement or family unity obligations.  In these circumstances, no weight can be attached to these considerations either for or against cancellation of the visa.

20. In the event that the Applicant’s visa were to be cancelled, the Applicant would then face the prospect of becoming an unlawful non-citizen in Australia, and thus liable to detention and forcible removal, (in the event that the Applicant did not otherwise choose to leave Australia voluntarily beforehand). In addition, the Applicant would thereafter become subject to s.48 of the Act, and would have limited options to reapply for further visas whilst in Australia. The Applicant would also become subject to Public Interest Criterion 4013 (‘PIC4013’), such that a three year preclusion period would apply before the Applicant could become re-eligible to again apply for the grant of a further Australian visa. The Tribunal does now attach some weight in favour of non-cancellation of the visa because of these considerations.

21. The Applicant has raised the concern that she will confront social isolation as a divorced female in India, and also financial hardship, if she were now required to return to India.  The Tribunal does attach some weight to this consideration in favour of non-revocation of the Applicant’s visa, yet notes that the Applicant has parents and one other sister in India, as well as the prosect of securing further employment in India as a registered nurse. 

    Conclusion

22. The Tribunal has decided that there was an aspect of non-compliance by the Applicant as described in the notice given under s.107. Further, having regard to all the relevant circumstances, as now discussed above, the Tribunal concludes that the discretionary considerations in favour of affirming the visa cancellation now decisively outweigh those other discretionary considerations in favour of non-cancellation; such that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

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

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

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.