2217274 (Migration)

2217274 (Migration) [2023] AATA 1691 (30 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Miss Meryl Shu Bing Mao Jiang
CASE NUMBER: 2217274

MEMBER:Noelle Hossen
DATE:30 April 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 30 April 2023 at 12:17pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 - Employer Nomination Scheme – bogus document – incorrect information in the visa application – identity details – periods of unlawful residence – regular travel to home country – exclusion period expired – mental health issues – contribution to the community – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97 – 105, 107-109, 137J, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with Section 101(b) of the Migration Act because he provided misleading and incorrect information and declarations to the Department regarding his name, date of birth, and immigration history. He also did not comply with Section 103 of the Migration Act, in support of his Visa application because he provided passports, a birth certificate, and a marriage certificate which were bogus documents, as defined by the Migration 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.
The applicant appeared before the Tribunal on the 15 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal also heard evidence from the applicant’s wife [named].
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
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 Section 101(b) and Section 103 in the following respects:
On the 22 November 2016, the applicant lodged an online application for an ENS Visa. His wife [named], was the primary applicant and [the applicant] was listed as a dependent applicant. The record of responses indicates on Page 3 as he provided the following information:
Family Name [the applicant’s name]
Given names: [name]
Sex: Male
Date of birth: [DOB 1].
On Page 4 of the record of responses the applicants were asked “Is this family member currently, or have they ever been known by any other named?” He responded: No.
On Page 10 of the record of responses applicants were asked “Have any of the applicants lived in a country other than the primary applicant’s usual country of residence? [the applicant] responded: “No”
On Page 11 of the record of responses where asked: “Has any applicant ever been removed deported or excluded from any country (including Australia)?” He responded: “No”.
On Page 11 of the record of responses where asked:” Has any applicant ever overstayed a visa in any country (including Australia)?” He responded: “No”.
On page 11 of the record of responses where asked:” Has any applicant ever had any outstanding debts to the Australian Government or public authority in Australia?” He responded: “No.”
On Page 11 of the record of responses [the applicant] made the following declaration:
Warning: Giving false or misleading information is a serious offence. The applicant declares that they:
Understand that if an applicant, any family members included in the application or third party acting on behalf of the applicant, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and the applicant subject to three year ban in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.”
On page 12 of the record of responses the applicant made the following declarations:
Warning: Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may be subsequently cancelled.
Yes
In support of this application the applicant submitted his marriage certificate, issued [in] July 2005, and his birth certificate serial number [A].
On the 9 May 2019 based on the information submitted the delegate granted the applicant an ENS visa.
The delegate considered that the applicant had not complied with Section 101(b) of the Migration Act. This is because, in the visa application detailed above (and in his previous applications as [the applicant’s name]) the applicant appears to have provided incorrect information regarding his name, date of birth, and immigration history; as well as providing fraudulently obtained passport, birth certificate, and marriage certificate to support the incorrect information he provided.
The delegate considered that the applicant did not comply with Section 103 of the Migration Act. In support of the visa application detailed (and in his previous visa applications as [the applicant’s name]) he provided passports, a birth certificate, and a marriage certificate which appear to be bogus documents, as defined by the Migration Act, because they appear to have been “obtained because of a false or misleading statement” to the issuing authority regarding his name and date of birth.
[In] November 2020 the Department’s New Delhi post found that the birth certificate, serial number [A], [the applicant] provided in support of his ENS application was non genuine.
In his response to the NOICC the applicant stated to the Department as follows:” I do not contest the allegations concerning my immigration history to Australia as stated in the Notice of Intention to consider cancellation under Section 109 of the Migration Act 1958.
He further stated that he accepted full responsibility for his actions, recognises that they were wrongful, and apologises to the Department for them.
The applicant confirmed in his written submissions and at the hearing, that he did not dispute that there was non- compliance with Sections 101(b) and Section 103 of the Act as described in the Notice of Intention to Consider Cancellation.
For these reasons, the Tribunal finds that there was non-compliance with Sections 101(b) and section 103 of Subdivision C of the Migration Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
· the correct information
In his written submissions the applicant stated as follows;” The correct information is that the applicant had previously been known as [Alias A] which was not declared in his ENS visa application.”
The applicant submitted that the correct information had a bearing on whether the applicant would have been granted his original student Visa as he would have been prevented by the operation of Public Interest Criteria 4014 from being granted any visa that he applied for within three years of leaving Australia on a Bridging E (subclass 050) Visa. The applicant had departed Australia under the name [Alias A] on a BVE [in] January 2005 with the exclusion period expiring [in] January 2008.
The applicant contends that this information would not have affected the grant of the Visa that is currently subject to cancellation. The ENS Visa had been applied for on 22 November 2016 which is well outside the period in which public interest criteria 4014 would have applied. Furthermore, the granting of the student Visa has no effect on the granting of the ENS Visa as a secondary applicant as the application can be made onshore or offshore.
The Submissions fail to consider the fact that the applicant did not provide in the ENS Visa application his correct date of birth as he was not born on [DOB 1] but was born on [DOB 2]. In addition, he was previously known as [Alias A].
When he stayed in Australia [in] February 1997, he had acquired an adverse immigration history, overstayed three Bridging E Visas, and had one Bridging E Visa was cancelled before being taken into immigration detention.
The applicant fails to take into consideration, the fact that under his new identity he failed to provide the correct information in several student Visa applications, his temporary work visa application subclass 457 and in the ENS Visa application. He maintained the false and misleading information in all the visa applications and interactions with the Department since lodging his first student Visa application on 9 September 2006.
The fact remains that the applicant provided incorrect information to the Department and provided bogus documents to support that incorrect information.
The Tribunal places significant weight on those facts in favour of exercising the discretion to cancel Visa.
· the content of the genuine document (if any)
The applicant’s bogus documents were Birth Certificate, Marriage Certificate and Indian passports numbered [B] and [C] which were bogus documents as defined in the Migration Act and they were obtained because of a false or misleading statement to the issuing authority regarding his name and date of birth.
The genuine documents were Indian passport number [D] issued [in] 1995. The Department found that the genuine document indicated that his birth name was [his alias name], and his date of birth was [DOB 2].
He provided bogus documents which included birth certificate, marriage certificate and Indian passports. These documents were obtained because of a false and misleading statement to the issuing authority regarding his name and date of birth.
The Tribunal places significant weight on those facts in favour of exercising its discretion to cancel Visa.
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision by the Department to grant all the visas for [the applicant’s name] were based partly on incorrect information and bogus documents. The applicant provided incorrect information to the Department regarding his name, date of birth, immigration history and provided a bogus birth certificate, marriage certificate, Indian passports obtained because of a false or misleading statement to the issuing authority regarding his name and date of birth.
The Tribunal places significant weight in favour of exercising its discretion to cancel the Visa.
· the circumstances in which the non-compliance occurred
The non-compliance occurred because the applicant intentionally provided incorrect information in his applications for the visas. He intentionally provided a different name, incorrect data, and birth certificate to the Indian passport authorities to obtain a new passport and identity which was not linked to the adverse immigration history he had acquired previously in Australia as [Alias A].
Although he claims to have been motivated by his ongoing fear of harm in his home country the fact remains that since the applicant has been living in Australia under his new identity he has returned to India. He has visited his relatives in India.
The applicant did provide a psychologist report. It does indicate that he suffers from post-traumatic stress disorder.
The Tribunal places a little weight against cancelling the Visa because the applicant does suffer from a significant psychological condition.
· the present circumstances of the visa holder
The applicant states that he has been a law-abiding since he and his wife arrived in Australia [in] November 2006. He has spent approximately 24 years in Australia.
He contends that there will be a negative effect, if the Visa is cancelled and departure from Australia, on his mental health stating that this might cause difficulty finding and retaining employment in his home country.
The applicant provided a report from a forensic psychologist [named] who saw the applicant on 18 August 2022 and found that the applicant was still exhibiting symptoms of post-traumatic stress disorder. The report states that the applicant has an extensive mental health history. His symptoms meet the criteria for Post-traumatic stress disorder. The applicant’s symptoms include recurrent intrusive and distressing memories of the traumatic events, intense psychological distress and exposure to external cues that remind him of the traumatic events. It is also stated that he experiences negative alterations in his mood and cognitions that are associated with the traumatic events in India
The applicant states that he did not present this information to the Tribunal to explain why he has acted in the way. His submissions state that he is not generally the type of person who shows disregard to the law and has otherwise been an upstanding member of the Australian community for over 15 years.
The applicant’s wife provided a report from a psychologist setting out that she suffers from acute anxiety and depression because of the premature loss of her son. She stated that she could not live without her husband as without him her life would fall apart.
He states that he has no family support in India as his father is deceased and his mother suffers from Alzheimer’s disease.
In the delegate’s decision he mentions that since his arrival [in] November 2006 the applicant has departed Australia eight times appearing to travel to India for periods of 2 to 4 weeks on each occasion. At the hearing the applicant did not deny that he had travelled to India on various occasions to visit his family with his wife. His wife also has family in India.
The applicant and his wife stated that in 2007 his wife suffered a miscarriage and they described that they visit their son’s grave and that if they left Australia it would be like leaving their son alone in that cemetery. His wife stated that she will be completely shattered if she’s not able to continue to visit the cemetery.
The applicant and his wife stated that they are especially attached to their son because they are unable to have more children due to a medical condition. The applicant’s wife says that they visit their son’s grave at least once per week and had decided to live close to the cemetery so that able to speak with their son whenever they want. They also provided submissions to the Tribunal regarding religious rites that are performed, to ensure the peace and salvation of the child, as they are devout Hindus. They claim that the applicant’s health and well-being will be hugely impacted if you were to have to return to India. He maintains that being in his home country would be a source of great fear and anxiety given the negative experiences he has had there in the past.
The Tribunal accepts that it would cause the applicant and his wife great difficulty to relocate to India as they have not lived in the country for over a decade and accepts that there will be some psychological trauma for the applicant and his wife.
The applicant’s wife said that she was attached to her husband and would not be able to remain in Australia if he had to leave Australia.
The Tribunal does place some weight on those facts in support of the applicant’s case to not cancel the visa.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant responded to the notice of intention to consider cancellation in a timely and thorough manner.
The Tribunal places a little weight against cancelling the Visa in respect of this consideration.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any instances of non-compliance other than those detailed above. The Tribunal places some weight against cancelling the Visa in respect of this consideration.
· the time that has elapsed since the non-compliance
According to the Department the non-compliance occurred in respect of the most recent application for the ENS Visa lodged on 22 November 2016 and granted on 9 May 2019. The most recent instance of the applicant’s non-compliance is the only one being considered as grounds for possible Visa cancellation. The applicant pointed out that he has spent approximately 24 years in Australia.
The Tribunal acknowledges that this is a substantial period for the applicant to adapt to Australian customs and culture.
The Tribunal places significant weight on those facts in favour of not cancelling the visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any breaches of the law since the non-compliance. The Tribunal places some weight on those facts against the cancellation of the Visa.
· any contribution made by the holder to the community.
The applicant contends that he has been working as a process worker with [Business 1] since 1 September 2014. In his role he is responsible for [specified duties].
He said that in 2023 report, Australian [professionals 1] have urged the Federal Government to invest in the development of domestic manufacturing, in the face of a worsening national shortage of [related products]. These shortages have been caused in the wake of global supply issues from the Covid 19 pandemic and have resulted in a dire [shortage].

Given [this shortage] and the increased focus on domestic [production] that applicant contends that it would be a loss to the Australian community if his Visa was cancelled. The applicant has over eight years’ experience in his role, having only paused work in the last two months due to his visa cancellation and will continue to be an asset to Australia for the remainder of his working years.
The applicant also says that his he and his wife are members of the [named] temple in [location], a Hindu temple where they have built a strong community of friends. They are described as being actively involved, helpful and active in every religious event as well as every community welfare matter and always the first to come forward to help. He also volunteers to clean the temple premises and help in the temple’s community kitchen. They provided a reference from the head priest to the Tribunal.
The Tribunal places some weight on those facts in favour of the applicant’s case and against the cancellation of the Visa.
Other Considerations
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.
According to Departmental records there are no other persons who will be affected because the applicant holds the Visa. If the Visa is cancelled it will not result in the automatic consequential cancellation by operation of law of the Visa of any other person
The Tribunal places some weight on these facts in favour of cancelling the Visa.
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. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
There is no evidence or information before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the Visa.
The Tribunal finds that cancelling the Visa does not result in breach of Australia’s obligations under the CRC or the ICCPR.
The Tribunal gives this consideration some weight in favour of cancelling the Visa.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The guidelines require that the Tribunal assess whether Australia would be in breach of its international obligations if the these include the obligation in relation to and pursuant to the Refugees Convention and the Refugees Protocol, the Convention Against Torture (CAT) and the International Covenant on Civil and Political rights (ICCPR).
The applicant is a citizen of India. Under his identity [Alias A] born [DOB 2] the applicant lodged an application for a Protection Visa on 11 March 1997. He was found not to be a refugee as defined by the refugees Convention and his application was refused on 8 April 1997. He unsuccessfully appealed his decision in the Refugee Review Tribunal followed by judicial review in the Federal Court. [In] February 2004 the court found in the minister’s favour affirming the decision to refuse the applicant a Protection Visa.
At the time of his response to the Department in response to the NOICC he stated that if he returned to India, he would continue to be at risk of persecution harm from Sikh extremists. He submitted a copy of a Wikipedia article which provided a partial list of victims of violence in the Punjab region of India in the period 1981 to 1995. He did not provide any contemporary data and no specific evidence to support his assertions regarding his ongoing subjective fear.
The Tribunal therefore does not consider cancelling the Visa will potentially lead to him being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention and the Refugees protocol or in breach of Australia’s obligations under the CAT or ICCPR.
The Tribunal places some weight on those facts in favour of cancelling the Visa.
whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation 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.
If the Visa is cancelled the applicant will no longer have a Visa to allow him to remain in Australia. He will become un-lawful noncitizen. As an unlawful noncitizen, he may be liable for detention under section 189 and removal from Australia under section 198 of the Migration Act. As a citizen of India, it would be open for him to return to that country to mitigate the possibility of being placed in immigration detention. The Tribunal considers that there is no potential for the applicant to be detained indefinitely. While failure to regularise his unlawful Visa status and or cooperate to return to his home country may ultimately result in detention or removal action it is not necessarily a consequence of the cancellation decision
The applicant may be subject to public interest criterion 4013 which may result in a three-year exclusion from having any new application for most temporary Visas granted. He would also be subject to a section 48 bar on applying for certain visas onshore.
The Tribunal places some weight against cancelling the Visa on those facts.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant’s wife is presently employed in the [specified] industry. She is presently employed as a [specified] employee. She is well considered by her colleagues and a support letter was provided to the Tribunal by one of her colleagues. This Tribunal accepts that this is going to be a significant issue because it is in the interests of the Australian [specified] industry that the applicant’s wife should remain in Australia.
The Tribunal places some weight on those facts in favour of not cancelling the Visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.
Noelle Hossen
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 1691

30 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Statutory Construction

Natural Justice

Jurisdiction