2111435 (Migration)

[2022] AATA 2251

2111435 (Migration) [2022] AATA 2251 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Donald Chi Ho Chen

CASE NUMBER:  2111435

MEMBER:Antoinette Younes

DATE:28 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s.

Statement made on 28 April 2022 at 9:44 AM

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – child was not the biological child of sponsor – applicant provided incorrect information – applicant had ceased to be in a spousal relationship with sponsor prior to the grant of the Subclass 801 visa –  applicant failed to inform the Department about changes in her circumstances – incorrect information about son’s true paternity – relationship with sponsor was not to the exclusion of all others by the time her visa was granted – failed to inform the Department about the relationship breakdown –  a loving and a committed mother – cancellation would adversely affect the child’s best interests – decision under review set aside

LEGISLATION
The Births, Deaths and Marriages Registration Regulation 2017 (NSW), s 15
Migration Act 1958, ss 78, 99, 101, 104, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached ss 101 and 104 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. This matter was previously before the Tribunal (differently constituted). [In] July 2021, the Court remitted the matter to the Tribunal for reconsideration and determination according to law. On the first occasion, the applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant.

4. The applicant appeared before the Tribunal on 21 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   RELEVANT LAW

7. 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.

8. Section 101 provides:

   Visa applications to be correct

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

   (b) no incorrect answers are given or provided.

9. The Act does not define the term “incorrect”. However, s 100 provides that 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”.

10. Section 99 provides:

    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.

11. Pursuant to s 99, any information provided by the applicant to the Department before the grant of her Subclass 801 visa on 9 September 2014 would fall within the definition of “answer”.

12. Section 104 provides:

    Changes 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.

13. Section 104 of the Act therefore imposes a duty on non-citizens to inform the Department if a relevant change in circumstances causes an answer in their visa application form to be incorrect before the visa is granted.

14. 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.

15. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements. The Tribunal has considered the validity of the Notice. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues.

16. 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.

17. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101 and 104.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The delegate’s decision record

18. During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided in support of the application for review.

19. Relevantly, the decision record refers to the following:

    ·On 15 June 2012, the applicant and [Mr A] lodged an application for a Combined Partner (UK 820/BS 801) visa. The applicant completed a Form 47SP as part of the application – Application for migration to Australia by a partner. In response to question 77, the applicant indicated that her relationship with [Mr A] had not ceased.

    ·As part of the application, the applicant provided a Form 40SP and in response to question 13 asking about, among other things, the commencement of the relationship and whether it is genuine and continuing, the response was that the relationship commenced in [Suburb 1] on [date] May 2012.

20. On the basis of the information that the applicant provided, on 21 June 2012, she was granted the first stage, the temporary Class UK Subclass 820 Partner visa.

21. In support of the second stage of the visa application, that is the permanent Class BS Subclass 801 Partner visa, on 5 May 2014, the Department requested evidence that the relationship was ongoing and continuing. The applicant responded on 28 May 2014 and she provided several documents. One of those documents was a Statutory Declaration dated 26 May 2014.

22. In the Statutory Declaration dated 26 May 2014, the applicant confirmed:

    I, [name deleted]…

    That I have a mutual commitment to a shared life as husband and wife, or as de facto partner, or as an interdependent partner, to the exclusion of all others, with [Mr A].

    That our relationship is genuine and continuing.

    That [Mr A] and I:

    (a) Live together; or

    (b) Live separately and apart of a permanent basis

    That our relationship began in 2012 and we have lived together for 2 years…

    I am pregnant for [number] months…

    We both now preparing things for our new member is a baby boy coming in [month]…

    Since I am pregnant all our friends and family have recognised and accepted us as family.

    We both still finding the name for our baby boy.

23. On 9 September 2014, the applicant was granted the permanent Partner visa, Subclass 801.

    Subsequent events

24. The delegate’s decision record indicates that on 21 January 2016, the applicant provided a Form 1022 – Notification of change of circumstances. The applicant requested that her son, [Master B] (date of birth [date]) be granted a visa. In support, the applicant provided an Australian birth certificate for [Master B] referring to [Mr B] as being [Master B]’s father.

25. Relevantly, s 78(1) of the Act provides that where a child born in Australia is a non-citizen at the time of birth and one of the child’s parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted at birth the same kind and class of visa, and on the same terms and conditions, as the visa of that parent. Therefore, [Master B] was deemed at the time of his birth to hold a Subclass 820 visa by operation of s 78(1).

26. On 21 June 2016, the applicant and [Mr B] lodged an application for a combined Partner (UF309/BC100) visa. As part of that application, the applicant provided a Form 47SP where in response to question 58, it was noted that:

    Question 58

    When did you and your fiancé(e) or partner commit to a shared life together to the exclusion of all others?

    [date]-Dec-2013

    In 2013 she came to visit Cambodia and we met up again when all workmates got together to go out to eat and go around together. One night during this visit we were [at] a club, we all got drunk and later found out that [the applicant] was pregnant with my baby. This began our real romantic relationship even though she was still married to her husband in Australia.

27. In May 2016, the applicant and [Mr B] married.

28. Departmental records indicate that the applicant was offshore from [December] 2013 [until]  January 2014.

29. As part of the application lodged on 21 June 2016, the applicant provided a Statutory Declaration dated 8 June 2016 describing how she met [Mr B] and that she knew that she was pregnant with his son.

30. In the Declaration of 8 June 2016, the applicant stated that she met up with [Mr B] again, as they used to work together, and went out with workmates a few times during her trip to Cambodia. She indicated that one night she became intoxicated and was intimate with [Mr B], but she did not intend to continue a relationship with him. She noted that she did not want to break up with her husband. When she told [Mr A], they fought and he moved out. The applicant provided a DNA test dated 6 October 2015 confirming that [Mr B] is the father of [Master B].

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/NOTICE) & RESPONSE

31. On 9 May 2017, the Department sent to the applicant a NOICC to which she responded on 1 and 2 June 2017.

32. The NOICC noted that it appears that the applicant had failed to comply with ss 101(b) and 104 of the Act, as follows:

    …

    Based on the evidence that you have a son with [Mr B] and the evidence in the Partner visa application lodged on 21 June 2016, it appears that your relationship with your sponsor ceased in approximately December 2013.

    It appears that you have not complied with section 104 of the Act as you have failed to notify the Department of relevant changes in circumstances:

    ·At question 77 of the Form 40SP you stated that your relationship with [Mr A] had not ceased however it appears that the relationship ceased in December 2013 prior to the grant of the subclass 801 Partner visa on 9 September 2014.

    ·At question 13 of the Form 40SP you stated that you and [Mr A] where in a relationship however it appears that you had a child with and committed to a shared life together to the exclusion of all others with [Mr B] in December 2013.

    As circumstances changed so that an answer to a question on the application form is incorrect in the new circumstances and you did not notify the Department of the change it appears that you have not complied with section 104 of the Act.

    It appears that you have provided incorrect information in your application for a Partner visa as information provided in relation to your application for a visa is incorrect. In support of your application for a Partner visa you provided a Statutory Declaration dated 26 May 2014 in which you stated:

    ·Your relationship with [Mr A] was to the exclusion of all others however it appears that you had a child with and committed to a shared life together to the exclusion of all others with [Mr B] in December 2013;

    ·Your relationship with [Mr A] was genuine and continuing however it appears that you had a child with and committed to a shared life together to the exclusion of all others with [Mr B] in December 2013;

    ·That you were 5 months pregnant and that you and [Mr A] have not yet found a name for the baby however DNA evidence shows that he is not the father of your child. In addition you stated that you knew from the time that you found out about the pregnancy that it was not [Mr A]’s.

    As you have provided incorrect information in your application for a Partner visa it appears that you have not complied with section 101(b) of the Act.

    …

33. In response, the applicant provided detailed submissions and supporting documents.

34. In the submissions, the applicant’s representative contended that:

    ·[Master B]’s conception was a result of a one-night stand with [Mr B], a former colleague and a friend. Both were intoxicated at the time of the conception and the incident was unplanned. The applicant admits that she travelled to Cambodia on [date] December 2013. She was upset with her husband after finding out that he had a third child from his previous marriage that she had not known about previously. Although angry at her husband, she did not want to end her marriage or consider that her visit to Cambodia in December 2013 had marked the end of her relationship with [Mr A]. The one-night stand did not suggest that either the applicant or [Mr B] had committed to a mutual shared life together to the exclusion of all others. In fact, after that weekend, the applicant did not even see [Mr B] again during her visit to Cambodia as she went to visit her [relatives]. The applicant did not intend to have a relationship with [Mr B].

    ·Parenthood of the baby was only confirmed following DNA testing in 2015. Once the applicant discovered that she was pregnant, she was “torn between the guilt about deceiving her husband, her desire to save her marriage, and her desire to keep baby…  I did not want to break my marriage, but the only other path that I could see to save my marriage would have been have an abortion. I do not believe in abortion. I believe that it is wrong to take away life and I simply could not do that. I wanted to keep my baby with my husband, so the only choice I saw was not to tell anyone.”

    ·When [Master B] was two or three months old, the applicant confessed to [Mr A] which precipitated the end of their marriage. The couple ceased living together in December 2014 and were divorced in April 2016. The applicant became depressed, distressed, and blamed herself for everything.

    ·[Mr B] and the applicant deny that their relationship began in December 2013.

    ·The applicant’s actions, although misguided do not support a finding that at the time she made her Statutory Declaration in May 2014 and up to the grant of the Partner visa on 9 September 2014 that her relationship to her then husband was not genuine or continuing, or that they did not have a mutual commitment to a shared life as husband and wife, or that they had not committed to a shared life together to the exclusion of all others.

    ·The applicant did not provide incorrect information and it follows that there was no relevant change of circumstances for the applicant to notify. Therefore, the applicant did not fail to comply with ss 101 and 104 of the Act.

35. In support of the response to the NOICC, the applicant provided the following:

    ·A Statutory Declaration of the applicant dated 31 May 2017.

    ·The applicant’s resume, a scan of her [student] identity card, education certificates and receipts, academic [transcripts], and feedback forms from teacher support placements.

    ·A Certificate of Baptism and Confirmation for the applicant, dated [date] April 2017. A Certificate of Baptism for [Master B], dated [date] June 2017.

    ·A Statement of [Mr B], dated 31 May 2017, accompanied by an interpreter’s statement, also dated 31 May 2017.

    ·A Statement written by [Ms C], the applicant’s sister, and [Mr D], [Ms C]’s husband, dated 31 May 2017.

    ·Family photographs of the applicant with [Mr B] and their son [Master B].

    ·A Statement of support from [a] schoolteacher who worked in Cambodia with the applicant between 2006 and 2009, dated 31 May 2017.

    ·A Statement of support from [a] friend and former neighbour of the applicant, dated 31 May 2017.

    ·An undated Statement of [a] friend of the applicant.

    ·A Statement of support from [a] neighbour of the applicant, dated 28 May 2017.

    ·A Statement of support from [neighbours] of the applicant, dated 25 May 2017.

    ·A Letter of support from Senior Clinician and Social Worker, [dated] 3 June 2015.

    ·A Letter from [an] MP, dated 22 June 2015. The letter is in relation to an application for a Sponsored Family Visitor visa for the applicant’s mother.

36. The delegate considered all the material and decided that the ground for cancellation arises and that the visa should be cancelled.

    The Tribunal’s review

37. The applicant and witnesses appeared before the previous Tribunal. The Tribunal and for the reasons explained in that Decision formed an adverse credibility finding and did not accept the applicant’s contentions that there was no breach.

38. The applicant provided documents including a Statutory Declaration dated 31 January 2018, submissions essentially reiterating earlier ones, multiple letters of support, psychological reports of Dr [E], dated 5 January 2018 and 2 March 2022 concerning the applicant and [Master B], applicant’s CV and certificates, Statement of [Ms C] dated 24 February 2022, Statement of [Mr D] dated 21 February 2022, school awards for [Master B], photographs, speech pathologist assessment report, and article relating to Cambodian law on monogamy.

39. During the hearing on 21 April 2022, the Tribunal discussed with the applicant her relationship with [Mr B]. She gave evidence that she and [Mr B] used to be work colleagues around 2010. She stated that she did not see him again until 25 December 2013. The Tribunal asked and the applicant reiterated that she and [Mr B] were not in a romantic relationship but were work colleagues. She stated that when she went to Cambodia in 2013, a group of friends/former work colleagues met, and [Mr B] was present. The Tribunal asked the applicant on multiple occasions why [Mr B] was there, and she stated that she had no idea. She repeated that she did not know his reasons for being there and that she is not the kind of a person who asks questions.

1. The applicant gave evidence that the group including [Mr B] got into a minibus. She said they had fun and she woke up the following morning after a big party and saw [Mr B] in bed next to her. She said she could not believe what had happened. She reiterated that they were not in a relationship at the time and that they formed a relationship in 2016. The Tribunal asked the applicant about the response to question 58 of the Form 47SP whereby [Mr B] had indicated that he and the applicant had committed to a shared life together to the exclusion of all others on [date] December 2013, inconsistent with the claim that they formed a relationship in 2016. She said an agent completed the Form 47SP.

2. The Tribunal asked the applicant about her relationship with [Mr A] at the time. She stated that in late 2013, she discovered that [Mr A] had a third child which upset her, and she needed a break. She went to Cambodia. She said she later forgave him. The Tribunal asked the applicant if she and [Mr A] had planned to have children and she stated that they spoke about having children, but she wanted to initially settle down and improve her English.

3. As discussed in the course of the hearing, the Tribunal found the applicant’s evidence in relation to the events of December 2013 to be problematic. She appeared to be evasive by continuing to state that she did not know how or why [Mr B] was there on that claimed night. Her explanation that she is not the kind of person who asks questions is neither convincing nor persuasive. The Tribunal did not find her explanations about the inconsistency relating to when she and [Mr B] formed a relationship persuasive. This is not a minor issue and her explanation that the form was completed by an agent is not persuasive. In his Partner visa application, [Mr B] stated that he and the applicant committed to a relationship in December 2013. He claimed that after they found out about the pregnancy, they began a romantic relationship despite the applicant’s ongoing marriage in Australia. The applicant has claimed that this was a mistake due to [Mr B]’s English language limitations.

4. [Mr B] gave evidence before the previous Tribunal which was the subject of s 359AA. He stated that after their meeting in 2013, he and the applicant had limited contact on [social media] and that it was not until 2015 that his relationship with the applicant had started, which was inconsistent with the information he gave in the Partner visa application. As noted above, in response to questions on the visa application form, [Mr B] stated that his romantic or committed relationship with the applicant started in 2013. He told the former Tribunal that his oral evidence is the truth, but the earlier information was not correct.

5. In her submissions to the delegate and to the Tribunal, the applicant claimed that her relationship with [Mr A] did not end prior to the grant of the Subclass 801 visa, inconsistent with the claims made by [Mr B] that their relationship started in 2013. This suggests to the Tribunal that both [Mr B] and the applicant have provided inconsistent information and tailored their responses on recognising that this could lead to the visa cancellation.

6. In essence, it is the applicant’s contention that when she engaged in intimate sexual activity with [Mr B], she was intoxicated and did not intend to have a mutual commitment at that time. She claimed that when she found out she was pregnant, she did not want to have an abortion and wanted to keep her marriage. She claimed that she had hoped that [Mr A] would want to raise the child as his own. Her evidence however is that she knew that the child was not [Mr A]’ as they did not engage in intimate sexual activities during the relevant time, which as discussed in the course of the hearing, would have been evident to [Mr A].

7. In relation to the reference to “our baby boy” in the applicant’s Statutory Declaration in May 2014, the Tribunal is satisfied that a reasonable interpretation of that reference is that it suggests that [Mr A] is the father. This is contrary to the applicant’s actual knowledge at the time that the ` [Mr A]. In her response to the NOICC, the applicant concedes the incorrectness of that information, but she later changed the version in her submissions to the previous Tribunal; she argued that this reflected her intention to raise the child with [Mr A] as she knew that the child was not the biological child of [Mr A].

8. In submissions to the Tribunal, it was contended that the contemporary concept of being a “parent” is not confined to only biological parents and encompasses a broad range of familial arrangements including through adoption, customary adoption or non-biological children born from in vitro fertilisation (“IVF”).

9. The submissions refer to the judgement of the Federal Court [in] July 2021[1] and argued that it also supported a broad reading of “parent” in reference to the registration of birth and the previous Tribunal decision of 8 February 2018 which it set aside as follows:

   First, the AAT erred in finding that the meaning of “parent” in s 15 of the BDMR Act was confined to “biological parent”. The meaning of “parent” is obviously critical to any consideration of whether a person breached s 57 of the BDMR Act. The Minister conceded before the primary judge that the AAT’s assumption that the meaning of “parent” in the BDMR Act was limited to “biological parent” was incorrect. [94] 8

   Indeed, with reference to the presumptions of parentage in the Status of Children Act, it is not difficult to conceive of circumstances in which a non-biological parent of a child could be held to be responsible under s 15 for the registration of their birth as a “parent”, and therefore would also be included as a “parent” in the particulars provided to the Registrar under reg 5(1)(d) of the Migration Regulations. For example, a couple may use donor sperm through artificial insemination to conceive a child. On the birth of that child, a partner who was not pregnant with the child could, under s 15, be held jointly responsible as a “parent” to register the birth of that child (and indeed an irrebuttable presumption arises against the sperm donor being the father of that child (s 14(3) and (4) of the Status of Children Act)). [103]

   While this example is far removed from the circumstances here, it is apt to demonstrate that even though [Mr A] was not the “biological parent” of the child, he nevertheless could have been responsible for registering the child’s birth as a “parent” under s 15. As the primary judge noted at [56], the AAT failed to have regard to this “broad legal concept of parentage” in reaching its conclusion that [the applicant] had breached s 57 of the BDMR Act by nominating [Mr A] as the father of [Master B] on their joint application for a birth certificate. The AAT did not engage in a process of reasoning as to whether [Mr A] was a “parent” of [Master B] at the time [the applicant] gave notice to the Registrar of his birth as a “question of fact and degree … determined according to the ordinary, contemporary Australia understanding of “parent” and the relevant circumstances of the case at hand” (Masson at [29]). [104]2

   [1] [Deleted]

10. The representative argued that although the Federal Court’s findings were with reference to birth registration, the underlying notion is that “parentage is not confined to biological parents only and there are many circumstances where it can be readily understood that a person is a ‘parent’ of a child without being a biological parent. As such, [the applicant]’s use of ‘our baby boy’ can be interpreted with several meanings…”.

11. The Tribunal acknowledges that the reference to “our baby boy” can be interpreted to include adopted, fostered and non-biological children, however when considered in the context of a Partner visa application where it was a requirement that the applicant and the sponsor demonstrate that they have a mutually committed relationship to the exclusion of all others, it suggests that this was intentionally misleading, not that intention is required for the purpose of s 100 which provides that 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”. The Tribunal is satisfied that by referring to [Master B] as “our baby boy”, the applicant provided incorrect information because she in fact knew that [Mr A] was not [Master B]’s biological father and according to the applicant, on finding this out, the marriage to [Mr A] deteriorated. The applicant and [Mr A] had been residing together and they had to demonstrate that their relationship was genuine and ongoing. A child from a different biological father would raise serious and reasonable doubts about the contention of a mutual and continuing relationship. This is not about morality or right or wrong conduct and the Tribunal appreciates that ‘one-night stands’ and/or extramarital affairs do occur which could result in having a child from a different biological father to the spouse but looking at this objectively, it is reasonable to find that if this were to occur, doubts or concerns about the relationship could be raised.

12. The applicant gave evidence that she told [Mr A] when [Master B] was two or three months old, that he is not the child’s biological father. She separated from [Mr A] in December 2014 and they were divorced in April 2016. The applicant never informed the Department about changes in the relationship while sponsoring [Mr B] for the Partner visa. On 21 June 2016, the applicant and [Mr B] lodged an application for a combined Partner (UF309/BC100) visa. The existence of a mutually committed relationship is directly relevant to the processing of [Mr B]’s visa. The applicant has claimed that her relationship with [Mr B] deteriorated by the end of 2016 yet she failed to inform the Department about the changes in the circumstances and continued to rely on the claimed existence of a genuine and mutually committed relationship with [Mr B] in order to obtain the visa for him. Faced with the cancellation of her own visa, the applicant revealed for the first time that the relationship deteriorated in 2016. When the previous Tribunal questioned her, she said that their relationship did not end, but her own evidence is that by the end of 2016 her relationship with [Mr B] was no longer of the nature she previously described to the Department. This indicates to the Tribunal a willingness on the part of the applicant to provide incorrect or misleading information, and not inform the Department about significant changes in the circumstances when she perceived a personal benefit in her circumstances.

13. The Tribunal has carefully considered the references and statements from third parties about the relationship. Although the Tribunal accepts that those who provided the statements genuinely believe the information they provided, they do not overcome the Tribunal’s concerns.

14. Looking at the evidence cumulatively and for the reasons outlined above, the Tribunal is satisfied that the applicant had ceased to be in a spousal relationship with [Mr A] prior to the grant of the Subclass 801 visa. The Tribunal is satisfied that the spousal relationship with [Mr A] ended by the time the applicant provided her Statutory Declaration in May 2014. Therefore, the Tribunal finds that the applicant gave incorrect answers in her application form and therefore did not comply with s 101 of the Act.

15. The Tribunal further finds that there was non-compliance with s 104 as the applicant failed to inform the Department about changes in her circumstances namely the cessation of the relationship with [Mr A] as the applicant knew that the child was not the biological child of [Mr A].

16. The Tribunal finds that there was non-compliance with s 101 and s 104 by the applicant in the manner described in the s 107 notice.

    Should the visa be cancelled?

17. 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).

18. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     The correct information

19. For the reasons outlined above, the Tribunal does not accept that the applicant had not ceased to be in a spousal relationship with [Mr A] prior to the grant of the Subclass 801 visa. The Tribunal is satisfied that the spousal relationship with [Mr A] had ended by the time the applicant provided her Statutory Declaration in May 2014 and the applicant failed to notify the Department that her marriage to [Mr A] had ceased prior to the grant of the Subclass 801 visa.

20. The Tribunal is satisfied that the responses provided by [Mr B] in his application for a Partner visa, specifically relating to the nature of their relationship and when it commenced, were the correct and intended answers. That is, the correct information is that the applicant had commenced a relationship with [Mr B] in December 2013 and that [Mr B] was aware that he was [Master B]’s biological father during the pregnancy. The Tribunal is satisfied that the applicant did not inform [Mr A] that he was not [Master B]’s father until after the child’s birth and after the grant of the Subclass 801 visa on 9 September 2014. The Tribunal is satisfied that the applicant was deliberate as she would have been aware that such a significant matter would have adversely impacted her marriage and consequently the Partner visa.

21. The correct information is that the applicant and [Mr B] were in a relationship at the same time as when she claimed to be in a genuine and continuing relationship to the exclusion of all others with [Mr A], during the processing of her permanent Partner visa application in May 2014.

22. The Tribunal gives this aspect weight in favour of cancellation.

    ·     The content of the genuine document (if any)

23. This is not relevant in this case.

24. The Tribunal gives this aspect neutral weight.

    ·     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

25. It is a requirement for the grant of the visa that the applicant and the sponsoring spouse have a continuing and mutually committed genuine relationship to the exclusion of all others. Having a child outside of that relationship is significant and directly relevant, even if not determinative, in ascertaining whether the applicant’s relationship with the sponsoring spouse was genuine, committed and exclusive. In that context, the applicant’s claims that her pregnancy with another man’s child does not in and of itself determine that she could not have been granted the Partner visa, are unfounded.

26. Although somewhat correct, the pregnancy would have been a significant and relevant consideration to a reasonable decision maker who on that basis might conclude that serious doubts must be raised. The Tribunal considers that the expected birth of [Master B] would have been a considerable factor in determining the genuineness of the applicant’s claimed ongoing commitment to her relationship with [Mr A] to the exclusion of all others.

27. For the reasons explained above, the Tribunal has concluded that prior to the applicant’s permanent visa being granted, the relationship with [Mr A] had ceased to exist. The cessation of that relationship is of direct relevance to the grant of the visa. Although it is not necessary to establish that the visa would not have been granted if the correct information was known, had the correct information been known, the Subclass 801 visa would not have been granted. The Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on the incorrect information.

28. The Tribunal gives this aspect weight in favour of cancellation.

    ·     The circumstances in which the non-compliance occurred

29. The circumstances in which the non-compliance occurred are when the applicant failed to disclose prior to the grant of the Subclass 801 visa that her spousal relationship to  [Mr A] had ended.

30. The applicant has claimed that she did not tell [Mr A] about [Master B]’s biological father because she did not want to break up their relationship as it was the only genuine one which she wanted to preserve. She claimed that she did not wish to harm that relationship by disclosing her contact with [Mr B]. Her explanations are neither persuasive nor convincing, particularly in the context of the timing of the applicant’s actions, namely her initial reluctance to tell [Mr A] about [Master B]’s paternity and her change of mind within a very short time after her permanent visa was granted. It appears to the Tribunal that the applicant was motivated primarily by the processing of her visa application and not by any claimed reluctance to upset the sponsor. It appears to the Tribunal that the applicant chose to disclose the child’s true paternity once she was granted the permanent visa and not at any earlier time as she wanted to ensure she held the permanent visa.

31. In the response to the NOICC, the applicant contended that she voluntarily provided [Master B]’s birth certificate to the Department in January 2016, to save the marriage rather than deceive the Department. The Tribunal does not accept this to be the case. By January 2016 the applicant had made the decision to sponsor [Mr B] for a visa. Provision of the child’s birth certificate was highly relevant to that visa application. The Tribunal is satisfied that the provision of the child’s birth certificate by the applicant to the Department was done to assist [Mr B]’s processing (and grant) of the visa rather than a genuine desire to be truthful. There is no evidence that the applicant provided the child’s birth certificate at any time before [Mr B] decided to make the visa application, which she could have done if her motivation was to be truthful in her dealings with the Department.

32. On the evidence, the Tribunal does not accept the applicant’s account regarding the circumstances surrounding the non-compliance. The Tribunal is satisfied that the applicant had entered a relationship with [Mr B] while still married to her husband and that the expected birth of their child would have further reinforced their commitment to each other. The applicant does not dispute that [Mr B] knew of the pregnancy and that he was the biological father, prior to [Master B]’s birth. The incorrect information about [Master B]’s true paternity extended to friends and family, as demonstrated by their supporting declarations referring to the couple’s continuing commitment to each other and excitement about their first child.

33. The Tribunal gives this aspect weight in favour of cancellation.

    ·The present circumstances of the visa holder

34. The applicant has lived in Australia for about ten years, arriving in Australia on [date] May 2012. The applicant is divorced from both [Mr A] and [Mr B] (divorced the latter in August 2020). She is not currently in a relationship.

35. Since May 2012, the applicant has been living with her sister, [Ms C] and brother-in-law, [Mr D] who are both Australian citizens. Her son, [Master B] was born and raised in Australia and has lived with the applicant and his [aunt] and uncle [all] his life. The evidence before the Tribunal indicates that [Master B] shares a very close relationship with his Australian aunt and uncle, similar to a parent-child relationship.

36. The applicant has completed studies in Australia in [deleted] including a Diploma [in] June 2018. She has been employed as a casual [worker] [since] 1 December 2021. The applicant is an active member of [a] Church in [Suburb 1] and attends Sunday Mass, weekday Mass on Wednesday and [a] prayer group at the Church every week. She also attends a church at [another suburb] once a month. The applicant provided several supporting statements. The Tribunal accepts that the applicant has been living in Australia for several years and is settled in Australia. The Tribunal accepts she has formed friendships and close relationships. The Tribunal accepts that her sister is an Australian citizen.

1. Although the applicant has the support of her sister and brother-in-law, she is a single parent raising [Master B] to the best of her abilities. The evidence is that she is a loving and a committed mother who has acted in a way that she considered to be in the best interest of [Master B].

2. The Tribunal gives weight to this consideration in the applicant’s favour.

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

3. In submissions to the Tribunal, the applicant noted that she provided the child’s birth certificate, which was obtained in 2015, in support of [Master B]’s visa application but not in relation to her own visa application. The representative argued that the applicant and [Mr B] have also disclosed in the Subclass 309/100 Partner visa application that they had engaged in sexual activities in December 2013. The applicant claims she provided truthful information in response to the NOICC and in relation to [Mr B]’s visa application.

4. The Tribunal is not aware of any adverse information in relation to the applicant’s behaviour under the above provisions.

5. The Tribunal gives weight to this consideration in the applicant’s favour.

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

6. There is no evidence of any other instances of non-compliance by the applicant.

7. The Tribunal gives weight to this consideration in the applicant’s favour.

   ·     The time that has elapsed since the non-compliance

8. The applicant’s Statutory Declaration in which she refers to having a child with the sponsor was in May 2014.The applicant was granted the permanent visa in September 2014. It has now been almost eight years since the non-compliance.

9. The Tribunal gives weight to this consideration in the applicant’s favour.

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

10. The previous Tribunal found that the applicant had given false or misleading information to the Registry of Births, Deaths and Marriages, which is “an offence under s.53 of the Births, Deaths and Marriages Registration Act 1996”. This is a result of the applicant’s evidence that she obtained the initial birth certificate for [Master B] which incorrectly identified [Mr A] as the father but the applicant knew that information was incorrect.

11. Those findings were the subject of extensive analysis by the Court in [deleted].[2] Relevantly, the Court referred to Division 2 of Part 3 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act), which provides that if a child is born in NSW, the birth is required to be registered (s 13). A person may have a child registered by giving notice in the prescribed form and specifying the particulars required, including:

    [2] [Deleted]

    (d)the full name, maiden family name (if any), date of birth (or age), place of birth, occupation and (at the time of delivery) usual place of residence of each parent of the child,

    …

    Importantly, reg 5(3)[3] also contains provision for a parent who is the “father” or “birth mother” of a child to be registered as such on the Register:

    (3)      If the particulars supplied to the Registrar under section 14 of the Act specify that:

    (a)  a parent who is the father of the child wishes to be identified in the register as the father, or

    (b)  a parent who is the birth mother of the child wishes to be identified in the Register as the mother,

    or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.

    [3] The Births, Deaths and Marriages Registration Regulation 2017 (NSW).

12. The Court observed that this regulation draws a distinction between the concept of “parent”, and the concepts of “father”, “mother” and “birth mother” in the statutory scheme. The Court also observed that s 9 of the Status of Children Act 1996 (NSW), which provides that “a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her spouse” and that the presumption is rebuttable by proof on the balance of probabilities (s 15(1) of the Status of Children Act).

13. The Court held that there was an error in the Tribunal’s finding that the meaning of “parent” in s 15 of the BDMR Act was confined to “biological parent”. The Court found that the “meaning of ‘parent’ is obviously critical to any consideration of whether a person breached s 57 of the BDMR Act. The Minister conceded before the primary judge that the AAT’s assumption that the meaning of ‘parent’ in the BDMR Act was limited to ‘biological parent’ was incorrect...The concept of ‘parent’ is undefined in the BDMR Act. As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term ‘parent’ are not ordinarily limited to a biological parent (Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [47]–[49] per Moore, Kenny and Tracey JJ; In re G (Children) [2006] UKHL 43; 4 All ER 241at [33]–[37] per Hale LJ). Referring to Baroness Hale of Richmond’s observations In re G (Children), the plurality in Masson stated at [29] as to the meaning of ‘parent’ under Div 2 of Pt VII of the Family Law Act 1975 (Cth):

    … according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.”

14. The Court referred to remarks made by the Full Court in H v Minister,[4] which concerned two appeals relating to the issue of whether “parent” in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to “biological parent”. As to the ordinary meaning of the word “parent”, the Full Court remarked at [48]:

    While often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.

    [4] H v Minister for Immigration and Citizenship [2010] FCAFC 119.

15. In light of the above, the Tribunal finds that there is no evidence of any breach of the law since the non-compliance.

16. The Tribunal gives this consideration neutral weight.

    ·     Any contribution made by the holder to the community

17. The applicant has provided many statements from friends and family members demonstrating that she has formed close community ties. Reverend [of] [a] Parish, Parish Council President, [Parish] Secretary, [and] several members of the [Church] have provided letters in support of the applicant, all describing her friendliness, compassion and care for others. The applicant’s friends and neighbours, [have] also provided letters of support attesting to her willingness to help others

18. The Tribunal accepts that the applicant is an active member of her local Catholic church, [a church] (“the Church”) in [Suburb 1] and that she was baptised in the Catholic Church on [date] April 2017, and regularly attends Sunday Mass, Wednesday Mass and [prayer] group each week. She is a volunteer on the Church’s cleaning roster and also volunteers with the social committee and assists at many of the Church’s functions.

19. The Tribunal is satisfied that the applicant also volunteers at [another] Church [where] her sister, [is] a member and that she assists each month during [a special day] whereby she looks after the children and helps with serving and taking care of the kitchen.

20. The evidence is that the applicant has completed a number of courses in Australia including a Diploma [in] June 2018, [deleted]. She has completed further training and short courses including [a] program with [Suburb 1] Public School in September 2019 and [another program] Australia in December 2020.

21. As she is not able to work, the applicant has volunteered at [a workplace] for a period of about 12 months until the service closed because of COVID-19. She also helped other Khmer speaking members of the local [community].

22. Since 1 December 2021, [the applicant] has been employed as a casual [worker] [working] five days a week.

23. On the evidence the Tribunal is satisfied that the applicant has made significant contributions to the Australian community, as highlighted above.

24. The Tribunal gives this aspect weight in the applicant’s favour.

100.   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 Procedures 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

101.   The applicant’s minor son, [Master B] holds a Subclass 820 Partner visa as he was born in [year], while the applicant was the holder of her Subclass 820 visa. In case of cancellation, his visa will also be consequentially cancelled.

102.   The Tribunal gives this aspect weight in the applicant’s favour.

·If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

Convention on the Rights of the Child (CROC)

103.   As a signatory to the CROC, Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the chid.

104.   The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

105.   Article 3 of the CROC states:

1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. The applicant has one child, [Master B]. In submissions and supporting documents, it was argued that that Australia would be in breach of its international obligations relating to [Master B] whose interest is a primary consideration. The question for the Tribunal is what decision is in the best interest of the child, not what the child might do if the parents were required to cease living in Australia.[5]

[5] Wan v MIMA (2001) 107 FCR 133, at [27]–[28].

106.   There are two reports from Dr [E]. The Tribunal accepts that Dr [E] is skilled and qualified to provide the opinions noted in her reports. In her first report Dr [E] indicated that [Master B] returning to Cambodia would be beneficial in that he would have more opportunities to contact his biological father and develop stronger bonds with his extended family. However, Dr [E] also noted that “…the move to Cambodia is not for the purpose of improving the life circumstances of [the applicant] and [Master B], such as access to better education, healthcare and economic opportunities. They are also moving into a culture where sexual infidelity by women is criticised and they may be subject to social pressure whether it is real or subjectively perceived by [the applicant]. [Mr B]’s level of support and involvement in [Master B]’s life is questionable given his current lack of interest.” Dr [E] expressed concerns that the applicant’s psychological symptoms and mood disturbance (which will likely be more severe upon leaving Australia) would impact on [Master B]’s growth. She noted that children exposed to maternal depression in the postnatal period are at increased risk of a range of health, wellbeing and developmental problems and were at least two times more likely to have emotional behavioural difficulties than children of mothers reporting minimal symptoms. Dr [E] concluded in her first report that given the unknown factors of the environment in which [Master B] will find himself in Cambodia, it was in his best interest to remain in Australia in a safe and stable environment with [the applicant].

107.   Four years after that report, [Master B] has been living in Australia since his birth and he is now [age]. He is attending [a grade] at [a] School in [Suburb 1] and the evidence is that he has been performing well with “commendable” and “outstanding” efforts in class. There is evidence that [Master B] suffers from speech challenges and he has been attending speech pathology for about two years where he was assessed to have moderately delayed receptive and expressive language skills. [Master B] has developed a very close relationship to his Australian aunt, [and] Australian [uncle]. [Master B] believes them to be his parents and refers to them both as “mum” and “dad”. [Master B] spends significant time with [them] during the weekend and holidays as they work full time. They attend activities together including going to movies, parties and to their friends’ homes.

108.   The evidence is that [Master B] has little to no relationship or contact with his biological father, [Mr B] or Cambodia in general. [Master B] is not aware that [Mr B] is his father. [Master B] has limited Khmer language skills and he is more fluent in English. [Master B] also has no communication with anyone in Cambodia apart from his grandmother.

109.   In her second report dated 2 March 2022, Dr [E] considered [Master B]’s best interests given his current settlement in Australia and noted in particular his strong connection to his Australian uncle and aunt. She noted:

…

he believes that [Ms C] and [Mr D] are his parents. Based on [the applicant]’s description, [Ms C] and [Mr D] have also acted, in every sense of the word, as [Master B]’s parents. [The applicant] stated that [Mr D] has provided for [Master B]’s physical and emotional needs, and [Master B] is very attached to him. This was confirmed by [Master B]’s own reports. [The applicant] further mentioned that [Master B] is more responsive to [Ms C] than he is to [the applicant]. As it is mainly [Ms C] and [Mr D] who take [Master B] to parties and other social functions, it is likely that others also recognise them as a family unit. Overall, [Master B]’s sense of security is largely built on his attachment and loving relationship with [Ms C] and [Mr D].

110.   Dr [E] indicated that forced separation from [Ms C] and [Mr D] would be traumatic and can have lasting impacts on [Master B] as [Master B] is not mature enough to understand the concept of non-paternity and does not possess the self-regulation skills to deal with the separation. She noted that separation would put [Master B] under severe stress and at risk of developmental regression. Dr [E]’s assessment is that those impacts can be mitigated if the biological parents can adopt the roles taken by [Ms C] and [Mr D] but noted:

According to [the applicant], [Mr B] has not provided financial support for [Master B] and he has shown little interest in [Master B]. In the times he interacted with [Master B], he did not identify himself as the ‘father.’ There is no indication that this will change in the foreseeable future. Therefore, it is reasonable to suggest that [Mr B] will not be involved in [Master B]’s life even if [Master B] moves to Cambodia. In comparison, [the applicant] has performed the role of a mother and she still regards herself as [Master B]’s mother. I am satisfied that she will continue to care for [Master B] if they are not permitted to stay in Australia. However, given [the applicant]’s psychological difficulties, which will likely worsen if she is forced to leave Australia, I am concerned that her ability to attend and respond to [Master B]’s emotional needs will be affected.

…it is my opinion that [Master B]’s best interests will be met by supporting his secure attachments to [Ms C] and [Mr D]. A disruption to this relationship is comparable to removing a child from his biological parents and will have lasting detrimental impact on the child’s sense of security and personality development. It is, therefore, in [Master B]’s best interest to remain in Australia where he can be with [Ms C] and [Mr D] and also access intervention for his speech delays. Based on my observations, there is a strong emotional bond between [Master B] and [the applicant]. It would be in [Master B]’s best interest to preserve this bond and this is achieved by [the applicant] staying in Australia.

111.   As evident, Dr [E] expressed the opinion that [Master B] would face a considerable degree of stress and a worsening of the applicant’s clinical conditions which would ultimately lead to a decreased capacity in her ability to care for [Master B].

112.   On the evidence, the Tribunal is satisfied that Australia would be in breach of its international obligations under the CROC in case of the cancellation.

113.   The Tribunal gives this aspect significant weight in favour of the applicant.

·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

114.   The Subclass 801 visa is a permanent visa. The Tribunal has dealt with ties under other considerations.

115.   The Tribunal gives this aspect weight in favour of the applicant.

·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

1. In case of cancellation, the applicant will become an unlawful non-citizen and be liable for detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart. The applicant would also be subject to s 48 of the Act.

117.   Although those are intended legislative consequences, in the applicant’s case due to her circumstances, they present a degree of hardship to mean weight against cancellation.

·Any other relevant matters

118.   There are no other relevant matters for consideration.

119.   The Tribunal has carefully considered the material before it individually and cumulatively. The Tribunal is satisfied that on balance, the matters in favour of the applicant outweigh the other aspects in favour of cancellation.

120.   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 not be cancelled.

DECISION

121.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Antoinette Younes
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.

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.

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.