2103377 (Migration)

2103377 (Migration) [2021] AATA 3287 (31 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2103377
MEMBER:Rachel Westaway
DATE:31 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 31 May 2021 at 6:17pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa – applicant provided incorrect information on her previous tourist FA 600 visa application form – long-term relationship with her husband – birth of their Australian citizen child – child’s best interests –decision under review set aside
LEGISLATION
Migration Act 1958, ss 46,101, 103, 109
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the 820 visa on 16 March 2021 on the basis that the applicant provided incorrect information on her previous tourist FA 600 visa application form (s.101(b)) and also provided bogus documents to support that tourist FA 600 visa application (s.103). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared in-person before the Tribunal on 20 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s two friends. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.
The applicant provided the Tribunal with a copy of the primary notification letter and decision record from the Department of Home Affairs (the Department) dated 16 March 2021.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
[Ms A] confirmed she arrived in Australia on [date] July 2017 from China on a visitor visa. She stated that her agent prepared the documentation however she said she travelled by herself. She explained to the Tribunal that she wanted to escape persecution in China.
She received a notification from the Department regarding the cancellation and this was the first time she claims to have known about the issues. She confirmed that the information is incorrect. She stated she has two children in China and is divorced and has remarried and has another child in Australia who is an Australian citizen.
Her two children were born in [year] and [year]. She told the Tribunal that the last time she saw her children was in July 2017. She stated she was officially divorced two years after her court case in 2016.
She confirmed she has previously been employed and stated that she was a [occupation] prior to looking after her children.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The applicant’s non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) with respect to providing incorrect information about her identity, previous relationship and employment on her previous tourist visa application form, and s.103 with respect to providing bogus supporting documents in her previous tourist visa application.
The applicant stated in her response to the NOICC that she was unaware bogus and misleading information had been provided on her previous tourist visa application as her agent in China had submitted that application. The applicant explained that she had limited participation in the visa application process apart from providing her Chinese passport and two passport-sized photos. The applicant agreed there was non-compliance and stated she felt extremely regretful that her Agent in China had provided the incorrect and bogus documents to the Department[1].
[1] Applicant’s Statutory Declaration dated 21 February 2021 submitted as part of her response to the NOICC, Department eFile DOC ID # 8236064
Conclusion on non-compliance
The applicant has confirmed that the information contained in the visitor visa application was incorrect: For these reasons, the Tribunal finds that there was non-compliance with s.101(b)] by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Migration history
The applicant is a [age]-year-old female from China who first arrived in Australia on [date] July 2017 on a tourist (FA 600) visa (which was valid from 28 July 2017 to 31 October 2017).
Department records indicate the applicant lodged a protection (XA 866) visa application on 11 August 2017 which was deemed invalid on 23 October 2017 as the applicant had not complied with the requirement under s.46(2A) of the Act[2].
[2] Department of Home Affairs - Integrated Client Services Environment (ICSE) records, Protection visa application, Permission Request ID Number 1565603756
Department records indicate an offshore temporary dependent child (TK 445) visa application was lodged on 21 August 2019 in respect to the applicant’s [son] listing the applicant and her current spouse as the child’s mother and step father respectively. It appears this visa application was withdrawn on 22 March 2021 and the visa applicant currently remains offshore[3].
[3] Department of Home Affairs - ICSE records, Offshore dependent child visa application, Permission Request ID Number 995631328
The applicant then lodged her combined partner visa application on 23 October 2017 on the basis of her relationship with her sponsor, Mr [B]. The applicant was granted her 820 partner visa on 28 September 2018 and the 801 visa application remains undetermined thus pending at the Department level. The couple have a [age] daughter who is an Australian citizen by birth.
Due to the inconsistent information provided in the applicant’s previous tourist (FA 600) and partner (820) visa applications, the Department undertook integrity checks to verify the information and documentation. The Department determined the applicant provided incorrect information and bogus documentation about her identity, previous relationship and employment in her previous tourist (FA 600) visa application.
On 17 February 2021 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) addressing the above and noting her partner 820 visa may be liable for cancellation for possible non-compliance with s.101(b) and s.103 in her previous tourist (FA 600) visa application.
On 21 February 2021 the applicant submitted the following documentation to the Department in response to the NOICC:
·Representative’s cover email dated 21 February 2021 stating the applicant’s spouse has financial commitments in Australia, the couple have a young child and applicant’s agent in China provided the bogus documents and misleading information to the Department
·Applicant’s Statutory Declaration dated 21 February 2021 advising her agent in China was responsible for providing the incorrect information and bogus documentation in her tourist visa application
·Statutory Declaration of applicant’s spouse (Mr [B]) dated 21 February 2021 explaining the couple’s relationship development and potential impact on his family and personal circumstances if the applicant’s visa is cancelled
·Couple’s registered Marriage Certificate dated [date] October 2017
·Victorian Birth Certificate for applicant’s underage daughter born in [year]
·Applicant’s Chinese passport valid [until] 2027 and Victorian Driver Licence
·Australian passport of applicant’s spouse valid [until] 2023, Victorian Driver Licence and Australian citizenship certificate [dated] February 2013
·Various support letters from applicant’s friends and their associated identity documents
·Applicant’s individual tax return documents for financial years ending 2019 and 2020
·Various [bank] statements for couple’s home loans and utility bills
·Health Care Card and Centrelink documentation for applicant’s spouse
·Various phone bills, chat logs and other bills and invoices
·Various photos of the couple alone and with their newborn daughter
The delegate determined the grounds for cancelling the visa outweighed the reasons not to cancel the visa thus on 16 March 2021 the delegate decided to cancel the applicant’s 820 visa.
On 17 March 2021 the applicant lodged an application for review in respect of the decision to cancel her 820-partner visa resulting in this Tribunal case number 2103377.
The applicant is currently on a Bridging Visa A which was granted on 23 October 2017 with no visa conditions attached t it.
Submissions
The applicant provided the following material to the Tribunal in support of her review application:
·copy of the Department’s primary notification letter and decision record dated 16 March 2021
·Applicant’s Statutory Declaration dated 17 March 2021 explaining the circumstances of the fraudulent documents, her current family situation and consequences for her family (namely her [daughter]) if her partner visa is cancelled
·Various undated and unannotated photographs of the applicant and her family plus with extended friends and family
·Various [bank] account statements dated from 1 January 2020 to 14 May 2021 for applicant’s joint account with her husband
·Various Electricity bills addressed to couple dated from September 2020 to May 2021 as evidence of the couple living at the same address
CONSIDERATIONS
The correct information and 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
In applying for a tourist (FA 600) and partner (820) visa applications, the Department determined the applicant provided incorrect information and bogus documentation about her identity, previous relationship and employment in her previous tourist (FA 600) visa application. This information was relied upon to determine the applicant’s eligibility for the grant of the tourist visa. This information is used to determine if the applicant is a genuine temporary entrant for the purposes of the visa, namely that the applicant does not overstay and enters Australia with the purpose of being a tourist.
Given the information provided to the Department, it is significantly different from the applicant’s true situation which the delegate would have considered in the granting of that visa.
The information provided was vastly different from the applicant’s true situation and led to the grant of a visa that may not have been granted if the correct information was provided. The Tribunal gives this factor significant against the applicant.
The applicant stated that she was responsible for the information in the partner visa application and this information
The circumstances in which the non-compliance occurred
The applicant’s claims in her Statutory Declaration dated 17 March 2021 addressed to the Tribunal that the incorrect information and bogus documents were submitted to the Department by her agent in China thus without her knowledge[4].
[4] Applicant’s Statutory Declaration dated 21 February 2021 submitted as part of her response to the NOICC, Department eFile DOC ID # 8236064
It is the applicant’s responsibility to determine the accuracy of the information it supplies to the department and whilst the Tribunal accepts that her English may not have been sufficient to fill in the forms, it remains her responsibility to ensure she approves the information provided. The Tribunal notes the applicant stated she feared persecution and was looking to escape China. Not withstanding the reasons why the information was provided or the fact it was allegedly provided unknowingly by the Migration Agent in China, the Tribunal places no weight ion this in favour of the applicant and not cancelling the visa as the ultimate responsibility rests with her to ensure the information is correct.
The present circumstances of the visa holder
The applicant is married to an Australian citizen and the couple have [a] daughter who is also an Australian citizen by birth. She lives with her husband who is employed as a [Occupation 1] but explained she has no relatives in Australia.
The applicant stated she was [working] prior to having her baby. She serves in her church and attends mothers’ group in Australia with her baby.
Her husband is a [Occupation 1]. He has no family in Australia and has never been married before. He came to Australia in 2008. She explained to the Tribunal that they have two properties together work to pay for the mortgage each month. She explained that it her visa was cancelled they would need to sell their properties because they would not afford to cover the mortgage repayments. She explained that she does not want to sell the properties in the current market, and it is not fair for her husband.
She explained that if they returned to China due to the cancellation they would have nowhere to stay there and on return to Australia they would not have anywhere to stay either.
The applicant said she would need to take her child whom she is still nursing to China if her visa was cancelled. She said that her child is an Australian citizen and would not be entitled to a hukou. She explained that given we are in a pandemic she holds grave concerns for her daughter if she is unable to obtain a Hukou as her child would not be entitled to state provided healthcare or education.
The Tribunal accepts and places significant weight on the applicant’s long-term relationship with her husband and the birth of their Australian citizen child who is still very young and the fact that the couple have significant financial obligations. A visa cancellation would impact significantly on the couple. The Tribunal accepts the applicant’s circumstances in Australia have her tightly entrenched in her church community and her family and that she has financial commitments. Notwithstanding the seriousness of the grounds for cancellation, a cancellation would cause significant impact on her daughter and her husband and the Tribunal places a significant amount of weight on these factors weighted against not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance which the Tribunal is aware of. The tribunal gives this factor some weight in not cancelling the visa.
The time that has lapsed since the non-compliance
The applicant lodged her tourist visa application almost 4 years ago on 28 July 2017 and subsequently met the requirements for her 820-partner visa which was granted on 28 September 2018.
Given the period of time which has passed, the applicant has married her partner and had a child. The Tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There have been no breaches of law since the non-compliance and as such the Tribunal gives this factor no weight.
Any contribution made by the holder to the community
The applicant is entrenched in her local community, participating in mothers’ group with her [daughter] and she attends church weekly with her husband. The applicant brought friends to the hearing to provide evidence of her involvement in the community. The Tribunal gives this factor some weight in not cancelling the visa.
Whether there would be consequential cancellations under s.140
The applicant’s spouse and infant daughter are all Australian citizens. There is no evidence before the Tribunal that there are any other persons who would be subject to consequential cancellation under s.140 of the Act.
The Tribunal gives this factor no weight.
If there are children whose interests would be affected by cancellation, or consequential cancellation
The applicant’s Statutory Declaration dated 17 March 2021 to the Tribunal indicates she has a young [daughter] who is an Australian citizen by birth. Her husband is also an Australian citizen and is the income earner and she stated that she would not want to leave her daughter if she was to return to china as she is still nursing her and it would break up her family unit. The applicant explained that if she was required to leave for China and she left her daughter, her husband would struggle to care and support his daughter alone as he has to work.

The Tribunal places significant weight on the family unit and particularly so when there is a child who is [still young]. The impact of a cancellation on the child would be significant if the couple were to return to China as a family unit or if the child went with her mother to China. It would be just as problematic for the child to be without her mother. The Tribunal places a significant amount of weight on the interests of the applicant’s child in favour of the applicant and not cancelling the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulment or family unity obligations
The applicant has raised the issue of persecution in China and had previously applied for a protection visa which was found to be invalid. The option remains for the applicant to apply for protection should she wish to avail herself of this option. As such the Tribunal gives this consideration no weight.
However, as discussed above, the Tribunal accepts that the applicant and her husband could return to China with their daughter if the visa was cancelled. This would ensure the family unit remains. Notwithstanding this, the couple have financial obligation in Australia and are entrenched in their local community and the applicant’s husband is employed in Australia and may not have the same employment opportunities during the pandemic in China which would as the applicant stated mean they would need to seriously consider whether he would return to China. The Tribunal gives these considerations some weight in favour of the applicant and not cancelling the visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decisions and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s 820 partner visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and may be detained and/or removed from Australia. There is no evidence to suggest she would be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the partner visa cancellation. The applicant may also be subject to an exclusion period if she is required to lodge a visa application offshore. The applicant’s eligibility for the permanent 801 visa would also be affected if she is not the holder a the temporary 820 partner visa.
These are all intended consequences of a cancellation. However, the Tribunal gives these factors some weight in not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
[Ms A] the witness stated she knew the review applicant’s husband first and then at church she met the Review Applicant. The church is in [a location]. She attends weekly accept during COVID. She stated the review applicant attended weekly too. They attended as a couple.
[Ms A] stated that the child is young and cannot leave her mother. She explained that the couple have been under significant stress and have lost so much weight and she hopes she can remain in Australia to look after her child and husband because they love each other and a separation would be distressing.
Mr [B] the review applicants husband stated that his wife gave birth recently and if the baby is away from her mother, she cries. He stated it is a family of three and they all want to live together and did not wish to be separated.
He stated that they are all Australian citizens and can’t remain long term in China and he has properties in Australia and he has a job so he must earn money to pay for bills in Australia and if they have no property they will not have a place to stay. He said that since they have met, they have never separated.
He confirmed he worked in China and he was an [occupation] however he received a protection visa based on religious persecution. Notwithstanding his protection claims, he confirmed he has returned to China around 5 times. He explained he was told by the Department that he went back as an Australian citizen with an Australian passport for a short time and was careful when he attended the congregation, so he was not targeted.
Ms [B] also provided oral evidence and stated she knows the review applicant through church and through her husband. She confirmed they are married and have a child and they are a good family and their relationship is continuing. She explained that she has had them at her home and her father in laws home and the review applicant would cook and her husband would do heavy lifting. She reiterated that the family needs to remain together.
She explained that there are financial obligations and the husband must work and the pandemic will make it hard for them to leave Australia and settle in China.
The Tribunal has considered the witness statements which reinforce the importance of keeping the family unit together and the significance of a cancellation on an infant. Furthermore the Tribunal also accepts that the applicant’s husband successfully obtained a protection visa based on his religious claims pertaining to China and that in order for him to remain with his family, he would need to return to China which may put him at risk if he was to practice his religion there. The Tribunal places significant weight on these factors in not cancelling the visa.
In considering the factors individually and cumulatively, the Tribunal in exercising its discretion places significant weight on the existence of the child to the couple and the need to retain the family unit and the applicant’s husband’s success protection visa application and concludes that these factors outweigh the weight placed on cancelling the visa.
CONCLUDING PARAGRAPHS
The Tribunal finds that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.
Rachel Westaway
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
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).
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)     an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
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.

[2021] AATA 3287

31 May 2021

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