2201671 (Migration)

[2022] AATA 2432

2201671 (Migration) [2022] AATA 2432 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Master Rami Yousif

CASE NUMBER:  2201671

MEMBER:Antoinette Younes

DATE:28 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 28 June 2022 at 11:06am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – changes in circumstances not notified – member of family unit – child over 18 as dependant on father’s primary application – became engaged after application made and before decision – discretion to cancel visa – concession and remorse – all family members in Australia and fiancé in fourth country – work and community ties – non-refoulement and international treaties obligations assessment – civil war and discrimination as Christians in country of birth and refugees in third country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 98, 104, 107, 109(1)
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 2.41, Schedule 2, cl 202.321(1)(b)

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 202 (Global Special Humanitarian) 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 did not notify the Department of changes in her circumstances, as required by s 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. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 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.

7. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 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.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104 of the Act.

   Section 104 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.

   Section 98 Completion 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.

   Section 99 Information 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.

   Section 100 Incorrect 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.

10. By way of background, on 1 July 2016, the applicant’s father [Mr A] lodged a Global Special Humanitarian (GSH) (Subclass 202) visa application and included the applicant as his dependent child. As noted above, in accordance with s 98 of the Act, in a combined application, even if [Mr A] had filled in the application form on behalf of family member applicants, any information on the form is taken to have been given by each applicant in respect of their own visa application. As such, the applicant is taken to have provided the information on the application form – Form 842, titled “Application for an Offshore Humanitarian visa – Refugee and Humanitarian (Class XB) visa”:

11. The information before the Tribunal indicates that:

    I.On page eight of the Form 842, under the subheading “Give details of all other people included in this application”, the applicant’s details were provided including her being the biological daughter of [Mr A], her name, date of birth, and her status as being “Never married or been in a de facto relationship”. On page 35 of the Form 842, under the heading “Part P – Declaration”, the applicant and her family signed the following declaration on 14 June 2016:

    Warning: The Migration Act contains a power to cancel a visa if a person has made an incorrect statement in relation to their application. If it is determined that you have concealed information, such as an offence, your application to enter Australia may be refused. If you have already been granted a visa and it is subsequently discovered that you have concealed information, such as an offence, your visa will be liable to cancellation and you may be refused entry to Australia. In the event that you have already entered Australia your visa will be liable to cancellation and, if cancelled, you may be detained and removed from Australia…This declaration must be signed by you (the main applicant) and ALL persons aged 18 or over included in this application…I declare that

    …

    I undertake to inform the Australian Government of any material changes to my circumstances while my application is being considered, or before I am immigration cleared. (Note: Your visa may be cancelled and you could be removed if you do not advise of changes in circumstances).

    Important: If your circumstances change after you lodge this application (e.g. you change your address, marry or become engaged to be married, or have a baby), you must notify the office where you lodge this application. If your application is supported by a proposal form 681 Refugee and special humanitarian proposal or form 1417 Community Support Program Proposal by Approved Proposing Organisations and your proposer’s circumstances change after you have lodged this application, you should also notify the office where you lodge this application.

    II.During an interview dated 7 October 2016 with a case officer at the Australian Embassy in Beirut, the applicant and her father confirmed that the applicant had never been married or engaged.

12. On the basis of the information provided, on 8 February 2017, the applicant was found to meet the relevant visa criteria, particularly the dependency criterion and she was granted the Subclass 202 visa.

    Events subsequent to the visa grant

13. Information in the delegate’s decision record indicates that the applicant became engaged to her current spouse [Mr B] on 6 November 2016, prior to the grant of the Subclass 202 visa. Relevantly, the information indicates that:

    I.On 27 February 2018, [Mr B] lodged a Prospective Marriage (Subclass 300) visa application, sponsored by the applicant. As part of that application on pages 8, 14,15, 19, 21, 23, 24, and 25, [Mr B] provided answers including his personal details, the sponsor’s name as being the applicant, that they got engaged on 6 November 2016 in Beirut (Lebanon), committed to a shared life together to the exclusion of all others on 6 November 2016, date of intended marriage 28 September 2019.

    II.In support of the Subclass 300 application, the applicant provided a Form 40SP “Sponsorship for a partner to migrate to Australia”. In response to questions 15, 19, 23, 24, and 25, the applicant answered that her fiancé is [Mr D], his date of birth is [Date], they are currently engaged and intend to marry on 28 September 2019, they met in person on 20 April 2011, they committed to a shared life together to the exclusion of all others on 6 November 2016, they have lived separately and apart since they committed to a shared life together to the exclusion of all others as the they “…cannot live together prior to marriage”.

    III.In support of the application, [Mr B] provided a statement titled “Re: Relationship History Statement” dated 27 December 2018, that the couple came from neighbouring villages in Syria and started dating in 2011. The applicant and her family moved to Lebanon in November 2011 so they were separated until the applicant met him again in Lebanon in 2012. [Mr B] moved to [Country] in July 2014 but the couple maintained a long-distance relationship. He travelled to Lebanon in 2016 to meet the applicant’s family as expected culturally and he stayed in Lebanon from March 2016 to April 2016. In October 2016, after the applicant’s interview with the Department, the couple decided to get engaged on 6 November 2016 at the applicant’s uncle’s house in Lebanon.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) and RESPONSE

14. In order to be granted the Subclass 202 visa, the applicant had to meet the relevant visa criteria, including the secondary criteria in paragraph 202.321, namely that the applicant was a member of the family unit of her father, as prescribed by subparagraph (1)(b) of the Migration Regulations 1994 (the Regulations), which states:

    Paragraph 202.321

    The applicant:

    (a)continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 202.211(1)(a) or 202.212(a), is the holder of a Subclass 202 visa; or

    (b)continues to be a member of the immediate family of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 202.211(1)(b)), is the holder of a Subclass 202 visa.

    Regulation 1.12 Member of the family unit

    (1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub-regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:

    (a) a spouse or de facto partner of the family head; or

    (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    […]

15. For the purposes of reg 1.12, a “dependent child” is defined in reg 1.03 of the Regulations as a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who…” has not turned 18; or has turned 18 and is dependent on that person, or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

16. The delegate considered that at the time of the decision to grant the Subclass 202 visa, the applicant was no longer a dependent child of the main applicant, [Mr A] because she was engaged to be married to [Mr B] on 6 November 2016, prior to the visa grant. The delegate considered that the applicant had failed to notify the Department of a change in her circumstances, namely that her relationship status had changed from “never married or in a de facto relationship” to “engaged”. Consequently, the delegate considered that the applicant has not complied with s 104.

17. On 13 December 2021, the Department sent to the applicant an NOICC, to which the applicant responded on 30 December 2021, 7 January and 12 January 2022. She provided documents in support such as character references. In essence, the applicant did not dispute that there has been non-compliance with s 104. In her responses, she made submissions contending that the visa should not be cancelled on discretionary grounds. During the hearing, the applicant accepted that she did not comply with s 104. She offered an apology and explanations as discussed below.

18. The issue before the Tribunal is whether there was non-compliance in the way described in the NOICC. The non-compliance identified and particularised was non-compliance with s 104.

19. On the evidence, the Tribunal is satisfied that the applicant did not notify the Department prior to the grant of the visa of a change in her circumstances, namely that she was engaged. The Tribunal therefore finds that the applicant did not comply with s 104 of the Act. The Tribunal finds that there was non-compliance with s 104 by the applicant in the manner described in the NOICC.

    Should the visa be cancelled?

20. 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).

21. 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

22. The correct information is that the applicant was engaged prior to the grant of the visa. She was required to notify the Department of changes in her circumstances during the processing of the Subclass 202 visa. Her status changed on 6 November 2016 when she became engaged to [Mr B], impacting her status as a member of [Mr A’s] family unit.

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

    The content of the genuine document (if any)

24. This aspect is not relevant in this case.

25. The Tribunal gives this consideration 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

26. It is a requirement for the grant of the visa that the applicant was a member of the primary applicant’s family unit, as defined in regs 1.12 and 1.03 of the Regulations; for the purposes of reg 1.12, a “dependent child” is defined in reg 1.03 of the Regulations as a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who…” has not turned 18; or has turned 18 and is dependent on that person, or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

27. The applicant’s engagement 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, 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 notify the Department that she was engaged.

30. In response to the NOICC and in submissions, the applicant argued that given that a number of years have gone by since she and her partner were interviewed, she does not recall the exact questions she was asked. She does recall however that she was contacted by a case officer from the Australian Embassy to confirm details such as her name and where she had lived in the past. She stated that she regrets not informing the Department of the engagement. She indicated “I do not seek to defend myself as I clearly did something that is against the law but there was no intention of hiding or concealing this information from the Department. I did not know that by not informing the department I would have breached the law. We were amongst hundreds of families who resorted to people to fill out application forms as we could not afford professional service by a migration agent. We were assisted by people who know how to complete the form only but we were never explained that the declaration in the forms and our obligations to advise the Department of any changes. Although I am not defending myself but this is the truth. Once again, I do regret that and I am very remorseful for what had happened”. The applicant submitted that her future is in Australia and that she has settled, including working on a full-time basis and contributing to the Australian economy and community by paying taxes.

31. The applicant contended that she would not have breached the law on purpose and had she known the potential consequences, she would have ensured compliance.

32. The Tribunal has some doubts about the applicant’s account regarding the circumstances surrounding the non-compliance. However, the Tribunal does not need to find that the breach was intentional. The Tribunal is of the view that the breach is serious and as such the Tribunal gives this aspect weight in favour of cancellation.

    The present circumstances of the visa holder

33. The applicant is engaged and her fiancé, [Mr B] is in [Country]. The applicant told the Tribunal that her fiancé is in [Country] temporarily, on a two-year visa and she believed that he would not be able to sponsor her for a [Country] visa.

34. The applicant is in Australia with her parents and two siblings. She gave evidence that she does not have close relatives in either Syria or Lebanon. She advised the Tribunal that she was working up until the cancellation of her visa.

35. In submissions and in response to the NOICC, the applicant advised that since the family’s arrival in Australia, she has called Australia home and she has no other place in which she could live. Her family, relatives and friends are all in Australia and she has nowhere else to which she could return. She stated that when she came to Australia, she wanted to become a better person and build her life and all the things that were offered. She studied English as part of the settlement program and she has learnt great skills that have assisted her in her role as a florist. She currently lives with her family and she was helping them in paying rent and for the groceries. She looks after her parents as they are elderly. She sometimes takes them to doctors’ appointments whenever her work schedule permits or to assist them with their medication. She has a very good relationship with people in Australia and the Church. She has integrated well into the Australian society and she has established good relationships with friends.

1. The Tribunal gives this aspect weight against cancellation.

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

2. In response to the NOICC, the applicant agreed that there has been non-compliance and she expressed her apology and remorse. She reiterated those before the Tribunal.

3. The Tribunal gives this aspect weight against cancellation.

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

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

5. The Tribunal gives this aspect weight against cancellation.

   The time that has elapsed since the non-compliance

6. The non-compliance occurred in November 2016 when the applicant’s circumstances changed and she failed to notify of the change in her circumstances. It has now been almost six years since the non-compliance occurred. The evidence before the Tribunal is that the applicant is well-settled in Australia and has strong community connections, as evidenced by the letters of support.

7. The Tribunal gives weight to this consideration against cancellation.

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

8. There is no evidence of any breach of the law since the non-compliance.

9. The Tribunal gives this consideration neutral weight.

   Any contribution made by the holder to the community

10. In submissions and in response to the NOICC, the applicant referred to her contribution in working and paying taxes to help build the Australian economy. The applicant contended that in the first year of her arrival in Australia, she studied the English language and after finishing she stayed at home to help her family. Subsequently she commenced working on 15 October 2018 on a full-time basis.

11. The applicant provided a letter of support from [Ms C], National JVP , [Employer], dated 21 December 2021 referring to the applicant as being a valued employee in the business who is committed to her work. [Ms C] noted that she is aware of the applicant’s history in terms of her arrival in Australia as a refugee with her family. [Ms C] noted that the applicant is a hard-working individual who is very distressed about the cancellation of her visa.

12. The applicant provided to the Tribunal a letter from [Reverend Father D], Parish Priest, [Church] Sydney, dated 11 June 2002. [Father D], referred to the applicant’s trustworthiness, kindness and high moral standards.

13. The Tribunal acknowledges the applicant’s contribution. The Tribunal gives weight to this consideration against cancellation.

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

    Whether there would be consequential cancellations under s 140

15. There is no evidence that in case of cancellation, there would be any consequences under s 140.

16. The Tribunal gives this aspect neutral weight.

    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

17. There is no evidence that in case of cancellation, there are any children impacted.

18. The Tribunal gives this aspect neutral weight.

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

19. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

20. Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

21. The Tribunal has considered whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act. The applicant has argued that the situation in Syria remains unstable and that she cannot return to either Syria or Lebanon. She claimed that she and other members of her family were discriminated against in Lebanon for being Syrians. She contended that Australia has non-refoulement obligations towards her as there is a real risk of harm that she may experience if required to return to Syria. She also claimed that a decision to cancel her visa would be against the principle of family unity because she has strong family links in Australia. She contended that the cancellation would lead to the separation from her parents and siblings in Australia. The applicant claimed that she and her family fled Syria because of the persecution they experienced as Christians. On 12 January 2022 and to the Tribunal, the applicant’s representative provided submissions to address the country information in relation to the current security situation in Syria. It is submitted that the situation in Syria has not changed since the unrest in March 2011 when “millions of women, men, girls and boys have been affected and suffered violations at the hands of warring parties”. The applicant claimed that if she were to return to Syria, she would be readily identifiable as a Christian and a returnee from the West which might put her life in danger.

22. The Tribunal observes that the cancellation of a visa is legally distinct from removal.[1] Importantly, prior to any removal, the Department might undertake an International Treaties Obligations Assessment which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that Australia would not remove a person in breach of international obligations. Consistent with the Full Federal Court’s authority in WKMZ, it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary.[2]

    [1] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].

    [2] WKMZ v MICMSMA [2021] FCAFC 55, at [151].

23. On balance, the Tribunal is satisfied that Australia would not be in breach of any of its non-refoulement obligations in the case of the cancellation.

24. The Tribunal gives this aspect neutral weight.

    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

25. In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The applicant would also be subject to Public Interest Criterion 4013 which would prevent the applicant from being granted a further visa for three years.

26. The Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia.

27. The Tribunal gives this aspect neutral weight.

    Any other matters

28. The Tribunal is not aware of any other matters that require consideration.

29. The Tribunal has carefully considered the applicant’s circumstances and the breach of s 104. The Tribunal considers the applicant’s conduct to be serious but the Tribunal is required to weigh up all the relevant considerations. The Tribunal has considered the material before it individually and cumulatively. There are limited aspects in the favour of cancellation, essentially relating to the breach. On balance, the Tribunal is satisfied that the evidence weighs heavily against cancellation.

30. On balance, the Tribunal considers that the matters in favour of the applicant outweigh the other aspects in favour of cancellation.

31. The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Antoinette Younes
    Deputy President

    
    

    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.

    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.