2109825 (Migration)

[2022] AATA 487

2109825 (Migration) [2022] AATA 487 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109825

MEMBER:James Silva

DATE:18 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 18 February 2022 at 5:37pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with application for protection visa – incorrect answers and bogus documents given with previous visa application – work in home country and travel, residence and work in third country, and related documents – one official document altered – discretion to cancel visa – no notification of correct information or response to department’s notice – reliance on agent in home country – protection visa application in progress and Bridging E visa granted in association – cancellation of current visa would not result in removal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 105, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhong v MIAC (2008) 171 FCR 444

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 to cancel the applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in [year].

3. He was granted a Bridging A visa on 2 March 2020, in association with an application for a protection visa. On 25 June 2021, the delegate issued a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s.109 of the Act. The applicant did not respond to the NOICC, and his visa was cancelled on 29 July 2021. The applicant seeks review of the decision.

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

5. The applicant appeared before the Tribunal on 17 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted via teleconference  with the assistance of an interpreter in the Hindi and English languages. The applicant is unrepresented in this matter. He presented no documents, and did not request the Tribunal to take evidence from any witness.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The applicant stated that he preferred to discuss his past and current circumstances face-to-face, without providing details. The Tribunal considered the request, but determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The option remained to adjourn the hearing and resume in person if there were any matters that it was appropriate to discuss in person, but this did not eventuate. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

7. At the hearing, the applicant said that he had not replied to the NOICC because he was depressed. He said that the symptoms appeared after his arrival in Australia. He said he does not have a Medicare card or funds to consult a doctor and obtain a diagnosis or treatment. While the Tribunal accepts that the applicant’s move to Australia and migration concerns may cause some stress, it is not satisfied on the basis of his oral evidence alone that he suffers any mental health issues that affected his ability to present his case.

8. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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? 

12. The applicant is unrepresented, and did not raise any concerns as to whether the NOICC complied with s.107. However, the Tribunal considers it appropriate to address this, for completeness and because it provides context for this decision.

13. The notice[1] identified s.101(b) and s.103 as the relevant provisions. Section 101(b) states that ‘a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’. Section 103 states that a ‘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’. In relation to the meaning of a ‘bogus document’, the NOICC highlighted that it includes a document that the Minister reasonably suspects is a document that ‘is counterfeit or has been altered by a person who does not have authority to do so’.

    [1] The delegate’s decision record of 26 April 2021 sets out the information that formed the basis for the cancellation, and the procedural steps. The applicant submitted to the Tribunal a copy of the decision. He has raised no questions about the validity of the notice.

14. The notice set out relevant information and documents that the applicant presented to the Department.

    Visitor visa application lodged on 22 September 2019

    §  The applicant provided information as follows:

    -   He is currently employed, as [an Occupation 1] with [Employer 1] in Hyderabad, India, a position he has held since 11 June 2014.

    -   He travelled to [Country 1] from [April] 2017 to [February] 2018.

    -   He confirmed that he had read and understood the information in the application, that it was ‘complete and correct information in every detail’, and he understood that the visa may be cancelled if documents were found to be fraudulent or the information to be incorrect.

    §  The applicant provided copies of the following documents:

    -   Offer of appointment from [Employer 1], dated 11 June 2014, relating to a position as an [Occupation 1] in Hyderabad, from 24 June 2014.

    -   Letter from [Employer 1], dated 11 September 2019, stating that the applicant worked there since June 2014, that he is currently employed in Hyderabad as [an Occupation 1], and that he had been given leave for 15 days.

    -   [Country 1] residence permit issued on 26 June 2017, stating his profession as [Occupation 1] and his employer as [Employer 2].

    Protection visa application lodged on 24 February 2020

    §  The applicant provided information as follows:

    -   He was employed as [an Occupation 1] by [Employer 1], [with specified duties], in Telangana, India, from February 2018 to February 2020.

    -   He worked in [Country 1] as an [Occupation 2] (November 2014 to September 2016), and later as [an Occupation 3] (April to October 2017). In other periods, he was unemployed ([birth]-2014, September 2016 to April 2017, and September 2017 to February 2018).

    -   His residential address from November 2014 to February 2018 was in [Country 1]. He was there from November 2014 to September 2016, April to September 2017, October 2018 (one week), and November 2017 to February 2018.

    §  The applicant provided copies of the following documents:

    -   [Country 1] residence permit issued on 26 June 2017, stating his profession as [Occupation 3] and his employer as [Employer 2].

    -   A cancelled [Country 1] residence permit issued on 8 December 2014, stating his profession as [Occupation 2] and his sponsor as [Employer 3].

    §  The NOICC (and decision record) noted that Australian Border Force (ABF) officers interviewed the applicant on arrival in Australia on 7 December 2019, having noticed the discrepancy between the [Country 1] residence permit in the applicant’s passport (giving his profession as ‘[Occupation 3]’ compared with the information given in the visitor visa application.

15. The NOICC gave particulars of the incorrect information in the visa application that amounted to non-compliance with s.101(b):

    §  It stated that he had worked as [an Occupation 1] for [Employer 1]; he had worked there since June 2014; and he worked in India – whereas other information he provided referred to periods of unemployment, and employment in [Country 1], as [an Occupation 2] (November 2014 to September 2016) and [an Occupation 3] (April to October 2017.

    §  It stated that he had visited [Country 1] from September 2017 to February 2018 – whereas other information indicated [Country 1] was his primary residence from November 2015 to February 2018, and he was physically present there for substantial periods (23 months in 2014-2016, five months in 2017, one week in October 2017, and three months in 2017-2018).

    §  It confirmed that the information provided was complete and correct – whereas the applicant later provided different information.

16. The NOICC also gave particulars of the documents considered to be bogus, in non-compliance with s.103. These were the [Country 1] residence permit of 26 June 2017; the offer of appointment from [Employer 1], 11 June 2014; and the letter from[Employer 1] of 11 September 2019, confirming the applicant’s employment as [an Occupation 1] based in Hyderabad.

    §  The delegate considered the [Country 1] residence of 26 June 2017 to have been issued to the applicant as [an Occupation 3] for [Employer 2], and the copy provided with his visitor visa application to have been altered to read ‘[Occupation 1]’.

    §  The delegate considered the documents from [Employer 1] – the offer of appointment dated 11 June 2014, and the letter stating he had worked for the company in Hyderabad since 11 June 2014 – to be counterfeit, as the information they contained was inconsistent with information that the applicant later provided.

17. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mention in s.107(1). In other words, they must have reached a state of mind where they consider that there has been non-compliance, not that they ‘may have’ provided incorrect information (or otherwise breached a relevant provision).[2] In the present case, the NOICC expresses the delegate’s views that the applicant ‘appeared’ to have given incorrect information and to have provided documents, and that he did not comply with s.101(b) and s.103; and also that the delegate ‘considered’ him to have provided incorrect information and provided documents that were bogus. Read as a whole, 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.

    [2] Zhong v MIAC (2008) 171 FCR 444 at [77].

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

18. The Tribunal must now determine 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.

19. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b), which states: ‘A non-citizen must fill in or complete his or her application form in such as way that no incorrect answers are given’; and s.101(3), which states: ‘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.’

20. As noted above, the s.107 notice identified and particularised pieces of incorrect information provided in the September 2019 visitor visa application that the delegate considered amounted to non-compliance with s.101(b), in relation to the applicant’s employment history, past residency and the incorrect declaration that all the information he gave had been complete and correct. It also identified and particularised the documents considered to be bogus, in non-compliance with s.103.

21. The delegate sent the s.107 notice on 25 June 2021. The applicant did not reply, to address the issue of non-compliance and/or give a written response as to why the visa should not be cancelled.

22. At hearing, the applicant confirmed that he had provided incorrect information in his visitor visa application, in relation to his past employment, his residential history, and the statement that he had provided completed and correct information in every detail on the visitor visa application. The Tribunal finds that the applicant provided incorrect information in non-compliance with  s.101(b). Whether or not he knew this information to be incorrect is immaterial for the purposes of Subdivision C: s.100.

23. The applicant also confirmed at hearing that he had engaged an agent who arranged bogus documents to support the visitor visa application. The Tribunal finds that he gave […] to an authorised system […] a bogus document, or caused such a document to be so given […]’, in non-compliance with s.103.

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

    Should the visa be cancelled?

25. 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).

    Consideration of prescribed circumstances

26. 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, and addressed in the following paragraphs.

    The correct information

27. The applicant provided information in his subsequent protection visa application of 24 February 2020. That application is ongoing, and the Tribunal is unable to determine conclusively whether the information provided there, including the personal particulars, are correct. For the purpose of this decision, it finds that the following is the correct information:

    §  In relation to his employment: (a) that he was unemployed from June to November 2014; (b) that he worked as [Occupation 2] in [Country 1] from November 2014 to September 2016; (c) that he was again unemployed from September 2016 to April 2017; (d) that he worked as [an Occupation 3] in [Country 1] from April to October 2017; and (e) that he was unemployed from September 2017 to February 2018. This contrasts with the incorrect information that the applicant provided, that since June 2014 he worked for [Employer 1] as [an Occupation 1].

    §  In relation to his place of residence, that he was based in [Country 1] from November 2014 to February 2018 (with absences from September 2016 to April 2017, two weeks in September 2017, and six weeks in October to November 2017). This contrasts with the incorrect information that he lived in India, except for a visit to [Country 1] from April 2017 to February 2018.

    §  In relation to his visitor visa application, that he did not provide complete and correct information in every detail.

28. The Tribunal considers the incorrect information to be significant, as it relates to the applicant’s employment, places of residence and migration history. It weighs this factor heavily in favour of cancelling the visa.

    The content of the genuine document (if any)

29. The Tribunal proceeds on the basis that the two [Country 1] residence permits that the applicant provided with his protection visa application are genuine. However, it does so with caution, given the applicant’s reliance on bogus documents with his visitor visa application, which suggests that he may have the resources and willingness to do so in the future

30. The two [Country 1] residence permits show that the applicant worked in [Country 1] as [an Occupation 2], from December 2014; and that he worked as [an Occupation 3] from June 2017. On their face, they indicate: (a) his claim to have worked in India from June 2014, as an [Occupation 1], was false; (b) that his claim to have worked in [Country 1] as an [Occupation 1], and only during the period April 2017 to February 2018, was false; (c) that he provided bogus documents relating to his employment with [Employer 1]; and (d) that he fraudulently altered the [Country 1] residence permit of June 2017, by changing his profession from ‘[Occupation 3]’ to ‘[Occupation 1]’.

31. The Tribunal finds that the genuine documents (or those presumed to be genuine) indicate that the applicant spent extended periods in the UAE, that he worked there as [an Occupation 2], and later [an Occupation 3], and that he was not an [Occupation 1]. The genuine documents expose the bogus documents that the applicant gave, or caused to be given, to an officer performing a function under the Act, i.e. assessing a visa application, and his eligibility to enter Australia.

32. The Tribunal places significant weight on this factor in favour of cancelling the visa.

    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

33. The Tribunal considers that the decision to grant the visitor visa to the applicant was based largely on the incorrect information that he provided, in relation to his residency and employment in India, and the bogus documents that he provided to support this information.

34. At hearing, the applicant advised that on arrival in Australia, Australian Border Force (ABF) officials quizzed him about his passport and the visitor visa. However, he had a fever and collapsed, and was transferred for medical treatment.

35. A criterion for the grant of a subclass 600 visitor visa is that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. An applicant’s employment and residential history are factors in the assessment of their intentions. In the present case, the applicant’s incorrect information and the bogus documents – indicating that he had stable employment in India as [an Occupation 1], and was a long-term resident there – would have been an important factor in the decision to grant him a visitor visa and, ultimately, to immigration clear him (although the apparent medical emergency also appears to have played a role in the latter).

36. The Tribunal places significant weight on this factor in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

37. As noted above, the applicant did not respond to the NOICC.

1. At hearing, he said that he had been back in India for more than a year (since February 2018, according to his other evidence, and faced death threats in India. In desperation, he turned to a travel agent with the request that he find a safe country for the applicant to settle in. This person inserted the incorrect information in the visitor visa application form, and arranged the bogus documents. The applicant said he was not involved in this, or aware of the details.

2. As discussed at hearing, the Tribunal accepts as plausible that the applicant relied on an agent in India to provide the incorrect information and arrange the bogus documents for the visitor visa application, with a view to securing an Australian visa. However, it is unable to assess or draw firm conclusions as to what led the applicant to rely on the agent in this way, eg. whether it was in response to imminent death threats that required him to leave India urgently, for a safe country; or whether there were other motivations, such as the wish to live and work abroad more generally. The decision-maker will assess these matters as part of the protection visa application process.

3. It is unable to assess or draw firm conclusions as to the circumstances in which the applicant came to rely on this agent, i.e. whether it was in response to imminent death threats, which required him to leave India urgently for a safe third country, as claimed; or whether it was in other circumstances (such as seeking an opportunity to live and work abroad). The Tribunal expects that this will be subject to detailed assessment as part of his protection visa application.

4. The applicant’s engagement of someone to provide incorrect information and present bogus documents, for migration purposes, is significant (even if a decision-maker finds, in the course of assessing the applicant’s protection claims, that there are mitigating circumstances, such as the applicant’s need to flee persecution or significant harm throughout India).

5. The Tribunal placers some weight on this factor in favour of cancelling the visa.

   The present circumstances of the visa holder

6. The applicant arrived in Australia in December 2019, over two years ago. He confirmed at hearing that his protection visa application is ongoing, and he has not yet been invited to a Department interview. He holds a Bridging E visa associated with the protection visa application.

7. The applicant lives in Sydney. He said that he has no family in Australia. He works as [an Occupation 4] for [Employer 3], and also undertakes some volunteer work (for details, see below). He has previously worked in a [workplace].

8. The Tribunal accepts that the applicant may have some modest social and financial ties in Australia.

9. It places slight weight on this factor against cancelling the visa.

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

10. The non-compliance occurred in September 2019. Section 105(1) requires that a non-citizen must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’ Subsection (2) adds, ‘subsection (1) applies despite the grant of any visa’. The applicant did not reply to the NOICC, and has not acted to inform the Department of the correct answer. Nonetheless, the Tribunal takes into account that he is unrepresented and that he readily acknowledged the non-compliance at hearing.

11. The Tribunal places slight weight on this factor in favour of cancelling the visa. 

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

12. There are no other known instances of the applicant’s non-compliance with ss.101-105. It is therefore an irrelevant factor.

    The time that has elapsed since the non-compliance

13. The non-compliance set out in the s.107 notice occurred in September 2019, i.e. just over two years ago. This in not a long period.

14. The Tribunal places a little weight on this factor in favour cancelling the visa.

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

15. There is no information of the applicant having breached the law. As this is a minimum expectation of visa applicants and holders, the Tribunal places little weight on this against cancelling the visa.

    Any contribution made by the holder to the community

16. As noted above, the applicant told the Tribunal that he works as [an Occupation 4] for [Employer 3], and has also worked in a [workplace]. The applicant has provided to the Tribunal[3] some bank statements from mid-2021, showing salary payments from [Employer 4] and some payments from [Employer 5]. He has not provided more recent evidence. At hearing he said that he receives payments through his bank account and has filed tax returns.

    [3] In the course of seeking a reduction in the fee applicable for the review application

17. The applicant also stated that he has participated as a volunteer at a drive-through COVID-19 testing site. In response to further questions, he said vaguely that he did this maybe once or twice week; this was done informally, and not via any formal registration; and he linked this in passing to a Muslim community centre. The Tribunal found these vague references, without supporting evidence, unpersuasive. It is not satisfied that the applicant is involved in any substantive volunteer work, at COVID-19 testing sites or elsewhere.

18. The Tribunal accepts that the applicant has undertaken work in [the informal sector] in the past two years. It places a small degree of weight on this factor against cancelling the visa.

    Other relevant circumstances

19. While the factors set in r.2.41 out 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.

    Whether there would be consequential cancellations under s.140.

20. There are no persons who would be affected by consequential cancellation.

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

21. In the present case, the cancellation of the visa will not result in the applicant being removed from or having to depart Australia. He has an ongoing protection visa application, and holds a Bridging E visa associated with that application. He will be permitted to remain in Australia until that application is finally determined.

22. The applicant has no family members or children in Australia, and has not identified any family members or children who would be affected by his removal.

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

23. The applicant currently holds a Bridging E visa, issued in association with his ongoing protection visa application. It appears that he will be eligible to remain on the Bridging E visa and living in the community, at least until such time as his protection visa application is finally determined, unless (as the Tribunal noted at hearing) he fails to comply with visa conditions. The cancellation of the Bridging A visa would therefore not directly result in him becoming an unlawful non-citizen, or being liable to be detained under s.189, or being removed.

24. A mandatory legal consequence of the Bridging A visa cancellation is that the applicant would be subject to Public Interest Criterion 4013, which would mean that he cannot be granted certain visas within three years of the visa cancellation date (i.e. until July 2024), except in certain circumstances. Section 48 would also restrict his options for making further visa applications while still in Australia. In practice, these restrictions would affect the applicant only if and when his protection visa application is refused and finally determined, and if he were to explore other visa options. The Tribunal considers that the mandatory legal consequences are unlikely to have any measurable impact on the applicant in the short to medium term.

25. The Tribunal places minimum weight on this against cancelling the visa.  

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

26. The applicant said at hearing that he feels shame for having relied on incorrect information and bogus documents in his visitor visa application. He implied that he would not wish a visa cancellation to be a negative for his migration history. As discussed at hearing, the Bridging A visa cancellation has little practical effect on the applicant, as he continues to hold a Bridging E visa with work rights for the foreseeable future. While it would be noted in his migration history, the Tribunal considers this is an intended and proportionate consequence of the serious non-compliance.

27. The applicant also told the Tribunal that his mother has urged him not to return to India, stating that she would commit suicide if he did. For the reasons stated above, the Bridging A visa cancellation would not result in his removal from Australia. Is it therefore not necessary to consider further the claimed statements by the applicant’s mother.

28. The Tribunal accords these factors minimal weight against cancelling the visa.

    Summary

29. The Tribunal has considered the totality of the applicant’s circumstances. Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation. It has had regard to the applicant’s oral evidence and his circumstances, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.

30. It has decided to place greater weight on the significance of the non-compliance, its relative recency, and the fact that cancellation would result in little if any hardship or practical consequences for the applicant, at least until such time as his protection visa application is finally determined. It accepts the applicant’s concern about the possible impact on his migration profile, and perhaps some future options, but considers that these factors are outweighed by the factors in favour of cancellation. After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal is of the view that the visa should be cancelled.

    Conclusion

31. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION  

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    James Silva
    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.