2309595 (Migration)

2309595 (Migration) [2023] AATA 4715 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ruslan Ahmadzai
CASE NUMBER:  2309595
MEMBER:Noelle Hossen
DATE:19 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 19 December 2023 at 2:25pm
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – secondary applicant to claimed partner’s primary application – false and misleading information and bogus documents – relationship and residential addresses – rental contract and incoming passenger cards – indifference and complicity to agent’s dishonest and unlawful actions – discretion to cancel visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 98, 100, 101(b), 103, 107, 109(1), 375
Migration Regulations 1994 (Cth), r 1.12
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided false and misleading information by stating that he was in a relationship with [Ms A], provided bogus documents and admitted his involvement in the fraudulent application. The delegate was satisfied that the applicant did not comply with s 101(b) and 103 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.
The applicant appeared before the Tribunal on 17 November 2023 by video as he was residing in Pakistan at the time of the hearing, to give evidence and present arguments. He had requested through his agent that he appear by video.
The hearing was held on the 17 November 2023 and the applicant was informed that the hearing could only take place by telephone and he agreed to the same.
The Department’s file contained a non-disclosure certificate dated the 4 July 2023 issued under s. 375A of the Act in respect of various documents. The applicant was informed of the existence of the certificate and a copy was sent to him by email to his nominated representative on the 16 November 2023.
The Certificate stated that the disclosure of the information contained in the specified document would be contrary to the public interest because it would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would be likely to prejudice the effectiveness of those methods. Having considered the nature of the documents covered by the certificate, it was still under obligation to disclose any information in the documents relevant to the issues of the review. The applicant did not take issue the validity of the certificate prior or during the review and confirmed the same in writing.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 of the Act in the following respects:
The applicant answered in the application for a Skilled Visa that he and [Ms A] were in a de facto relationship which began on the 1 July 2018.
The Department established that the applicant and [Ms A] never lived together despite the information contained in the application for a Skilled Visa.
The applicant and [Ms A] had lodged a combined application for a Skilled Visa. As a result of that only one application form was submitted, and the applicant and [Ms A] are taken to have to have each made their own application and the answers in the application form are taken to have been provided by both.
Section 98 of the Act clarifies that a non- citizen who does not fill in his or her application form is taken to do so if she or he causes it to be filled in on his or her behalf.
Section 100 of the Act clarifies that an answer, to a question is incorrect even though the person who gave or provided the answer or cause the answer to be given or provided, did not know that it was incorrect.
The applicant was included as a spouse/ de facto partner and it was stated that the relationship commenced on the 1 July 2018.
The applicant submitted a Form 80 Personal Particulars for Assessment, including character assessment, signed by the applicant dated the 2 August 2019 in which question 17 asked his address history for the last 10 years, and his answer included 4 addresses in Australia. He also submitted a Rental Contract dated the 3 January 2019 stating that that he leased the property with [Ms A] at 1078/17 Wentworth Place, Wentworth Point NSW 2127, from 3 January 2019 to 2 January 2020.
The applicant also included undated photographs of the relationship submitted on the 3 June 2020.
In support of the visa application, on the 5 August 2020 the applicant submitted a written statement of the relationship by [Ms A], in which she stated: she first met the visa holder at a barbeque party organised by her friend [B]; a week later she agreed to be the applicant’s girlfriend; they decided to live together very shortly thereafter: they have been in a genuine and continuing relationship since.
In support of the visa application the applicant and [Ms A] provided a Form 80 signed on the 2 August 2019 and 4 July 2019 respectively, in which both answered, at question 17, that they lived at 121, 2A Betty Cuthbert Avenue Sydney Olympic Park NSW 2137 since June 2018 for [Ms A] and August 2018 for the applicant. The Department noticed that the applicant was asked to list his current and all previous addresses in his Citizenship Application and he failed to mention that address in that application.
Despite the rental contract for both to live at 1708/17 Wentworth Place, Wentworth Point NSW 2127 for 12 months commencing 3 January 2019, neither of them lived there. The applicant offered no explanation for this, and according to departmental records the delegate of the department did not consider this when assessing that the applicant met the criteria to be granted his secondary Skilled (Independent)(Subclass189) visa.
The applicant stated when he was asked to list his current and previous residential addresses in Australia and answered as follows:
Current address [Address 1]
3 April 2021 to 4 April 2022 [Address 2]
12 August 2020 to 8 April 2021, [Address 3]
1 February 2017 to 12 August 2020 – [Address 2]
1 January 2016 to 1 January 2017, [Address 4]
1 January 2013 to 1 January 2016 [Address 5].
The above answers indicate that he never lived at 1708/17 Wentworth Place, Wentworth nor at 121, 2a Betty Cuthbert Avenue, Olympic Park NSW 2137.
According to the department Decision he had travelled outside of Australia on 2 occasions during the time that he claimed to be in a relationship with [Ms A]. He completed incoming passenger cards on his return to Australia. On both occasions on the 21 November 2018 and 10 June 2019 he stated on those cards that his address was [Address 2].
This information confirmed that the applicant and [Ms A] did not commence living together in August 2018 as claimed, nor resided together at the time of submitting the combined visa application form on the 15 October 2019.
In the delegate’s decision the delegate set out that the Department had obtained phone records relating to a [Mr C] being phone number [Number 1]. These records included many SMS messages between [Mr C]’s phone and the applicant’s phone number [Number 2].
In the messages the applicant refers to [Mr C] as [Nickname].
On the 27 November 2018 the applicant told [Mr C] that he had returned to Australia from overseas and asked whether [Mr C] still offer of a job for him in Tasmania to which [Mr C] had answered yes. The applicant discussed his language test result expected within a couple of weeks and to be on the safe side he needed sponsor as backup.
On the 11 December 2018 the applicant asked [Mr C] whether he had found him a sponsor and agreed to pay $40,000 for one.
On the 18 December [Mr C] stated that he had found a girl who would be returning to Australia [in] January 2019.
On the 20 December 2018 the applicant told [Mr C] that he had a friend who was willing to pay for either a job in Tasmania or for a partner and asked whether he would receive a commission if he referred him to [Mr C]. On the 7 January 2019 the applicant told [Mr C] that his friend would see him that day. At the hearing the applicant minimised those actions to say that he only said that to [Mr C] as he wanted to keep him onside.
[Mr C] asked for a 10 % deposit and organised the first meeting with [Ms A] on the 31 July 2019 in his office. This evidence through the SMS messages confirms the fact that the applicant had never met [Ms A] prior to the 31 July 2019.It also shows that the applicant was willing to commit immigration fraud and was seeking to obtain an advantage for referring his friend and to benefit through a commission. The Tribunal does not accept that he did so with an ulterior motive to keep in [Mr C]’s good books.
[Mr C] and the applicant decided for payment to be made by instalments and for a photograph session by SMS. The messages include the fact that the applicant had to liaise through [Mr C] as he did not have [Ms A]’s address.
In support of the combined online Skilled (Independent) (subclass 189) visa application form lodged with [Ms A] on the 15 October 2019, the applicant submitted a rental contract dated the 3 January 2019, stating that both he and [Ms A] agree to lease the property at 1708/17 Wentworth, Wentworth Point, NSW 2127, from the 3 January 2019 to 2 January 2020.
The rental contract was purportedly signed by both the applicant and [Ms A] on the 3 January 2019, to live together at 1708/17 Wentworth Point, NSW 2127.the evidence suggests that they had not met until the 31 July 2019.
In the statement dated the 9/11/2023 prepared by the legal practitioner acting for the applicant lodged prior to the hearing of the review he stated as follows:
[Mr C] persuaded the applicant to arrange a fake relationship with a person who was eligible to apply for a permanent visa. The applicant felt pressured to agree to the plan. [Mr C] made all the arrangements and charged $40,000. It was stated in the submissions that [Mr C] received $46,000 from the applicant in cash. He was given handwritten receipts after these payments. The Tribunal has sighted the receipts and taken that information into account. he also states as follows:” It is understood that the applicant provided bogus documents and provided false and misleading information by stating that he was in a relationship with [Ms A].
At the hearing the agent stated that the applicant admitted that there was noncompliance and that he wanted the matter dealt with as part
On the 8 April 2021 [Ms A] was granted a Skilled (independent) (subclass 189) visa and the applicant was granted a secondary visa.
The Tribunal is satisfied when the totality of the evidence is considered that the applicant was complicit in the provision of false information to the Department and showed indifference to the fact that his agent ([Mr C]) was acting unlawfully and dishonestly by submitting incorrect information and a bogus document to the Department.
The Tribunal has weighed his statement and a statement provided by his agent dated the 9 November 2023 with his oral evidence and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of Act.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 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
The correct information was that the applicant and [Ms A] were not in a de facto relationship or any relationship at the time that the Visa Application was lodged. They were never in a relationship in Australia.
The applicant ‘s relationship was contrived so that he could be included as a secondary applicant on [Ms A]’s permanent visa application.
The correct information was that they were not in a relationship and the Tribunal places significant weight on those facts in favour of cancelling the visa.
· the content of the genuine document (if any)
The rental contract dated 3 January 2019 stating that the applicant and [Ms A] agreed to lease the property at 1708/17 Wentworth Place, Wentworth Point NSW 2127, from the 3 January 2019 to 2 January 2020, was a bogus document as per s5 (1)(b) of the Act, because it had been altered. In a message from [Mr C] to the applicant on the 8 November 2019 he indicates that [Ms A] would change the agreement to include him in it. This indicates that the document should only include [Ms A]’s details in it and that the correct information was different to the original document.
The rental contract is a bogus document provided to the Department in support of the Application for a Visa.
The Tribunal places weight on those facts against the applicant’s case as the applicant was complicit in the migration agent’s fraud and was indifferent to the agent acting unlawfully and dishonestly.
· 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 Skilled (Independent) (Subclass 189) was granted to the applicant as he held himself out to be a member of the family unit of the primary applicant as contained in the terms of 189.3 Secondary criteria. Member of the Family Unit has the meaning at Regulation 1.12 which includes (1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5 (1) of the Act.
(2) A person is a member of the family unit of another person (the family head) if the person: (a) is a spouse or de facto partner of the family head.
Section 5 CB De facto Partner
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2) , the person is in a de facto relationship with another person.
(2)For the purposes of subsection (1) , a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of Section 5 F) with each other but:
(a) They have a mutual commitment to a shared life to the exclusion of all others; and
(b) The relationship between them is genuine and continuing and
(c) they (1) live together: or
(ii) do not live separately and apart on a permanent basis; and
(d) They are not related by family
The Tribunal is satisfied that if the delegate of the Department had been aware that the visa was granted based on the incorrect information and bogus document that this key information may have affected the decision.
The applicant was not in a de facto relationship with [Ms A] and would not have been considered as a member of her family unit in accordance with the provisions of the Act as set out above.
The Tribunal places significant weight on those facts in favour of cancelling the visa.
· the circumstances in which the non-compliance occurred
The non- compliance occurred when the applicant provided incorrect answers and a bogus document, in his Combined online Skilled (Independent) (Subclass 189) visa application form lodged with [Ms A] on the 15 October 2019.
In the submissions filed prior to the hearing the applicant stated the following:
“[The applicant] came in contact with [Mr C] after he was seeking advice for ways to apply for a sponsored visa in regional areas of Australia, like Tasmania. He wanted to do the right thing by finding a business sponsor that would lead to permanent residency
After conversations about options to find a permanent pathway, [Mr C] suggested to fake a relationship with a person that is eligible for Permanent Residency.
[The applicant] has expressed that [Mr C] was manipulative in his dealings and played on [the applicant]’s fears and vulnerabilities.”
[The applicant] provided his own summary and said that he met [Mr C] when he was a taxi driver as he was a client. He said that at the time he was working as a part time [Occupation] and a taxi driver. He was apparently given a business card by [Mr C] and told that he helps people get permanent residency.
When he attended for an appointment [Mr C] suggested that he could find him a partner who was in China and that she will pay the expenses. He said that he could find a job for him to get work experience in a regional centre.
He said that in December 2018 he agreed for [Mr C] to find a partner for him who was eligible for a Permanent Visa so that he could be included in the application. He said as follows:” There was an agreement to pay $40K for the partner, $6000 for his service”.
He said that in February 2019 [Mr C] stated that he had found someone and arranged a meeting in his office. He said that at the time he regretted making the Decision and there was no communication. He did not know what was happening regarding the visa application and said that he was genuinely remorseful for his mistakes
In the Decision the Delegate refers to excerpts of the text messages passing between the applicant and [Mr C] as follows:
On the 27 November 2018 the applicant told [Mr C] that he had returned to Australia from overseas and asked whether [Mr C] had a job offer for him in Tasmania and [Mr C] replied that he did. The applicant also stated that he would like to have a sponsor as backup.

On the 11 December 2018 the applicant asked [Mr C] whether he had found him a sponsor and agreed to pay $40,000 for one.
On the 18 December 2018 the applicant told [Mr C] that he had a friend willing to pay for either a job in Tasmania or for a partner and asked whether he would receive commission if he referred someone.
On the 4 March 2019 the applicant sent a message to [Mr C] asking if the girl he had earlier said was available to help him stay in Australia had returned to Australia. [Mr C] confirmed that she had, and that the applicant was to begin to pay to him the 10 % deposit.
[Mr C] arranged the first meeting with the girl on the 31 July 2019
On the 2 September the applicant arranged to pay [Mr C] 2 instalments so that he could commence the process to lodge the Expression of Interest.
On the 19 September 2019 [Mr C] asked the applicant to pay a deposit. The applicant reminded him that the deal was 10 % deposit before, 30 % when we get the pictures and relationship certificate done; 20 % at the time of the visa application; 40 % after approval.
On the 4 November 2019 the applicant asked [Mr C] when he and the girl will go to the pictures then it was arranged for 4 pm on the 10 November 2019.
On 8 November 2019 [Mr C] asked the applicant for his full name stating he needed this because the girl will change the rental agreement to include the applicant. The applicant asked [Mr C] whether she still lived at that address.
On the 2 December 2019 the applicant asked [Mr C] whether he can pick up a letter from the girl’s house.
On the 13 August 2020 the applicant told [Mr C] that he has just sent him documents by email but had not filled in his current address and asked him to fill this in when he organises the rental agreement. The applicant also told [Mr C] that he did not fill questions 42, 43 and 47 because they were about the applicant’s partner and the applicant did not have any details. On the 19 August 2020 [Mr C] advised the applicant that he had finished the Form 80 for him and asked him to sign it.
Between 31 August and 7 September 2020, the applicant followed up with [Mr C] as to when [Mr C] will give him the rental lease to sign. [Mr C] said he needed to adjust it and send it to him soon.
The evidence as set out above confirms the following:
The applicant entered into an agreement with [Mr C] whereby he would pay him money to arrange for a female to agree to a contrived relationship so he could be included in her visa application as a secondary applicant.
There is evidence that the applicant not only sought and paid for the assistance of [Mr C] and that he tried to arrange for a friend of his to participate in the fraudulent activities.
The text messages prove explicitly that the parties organised to submit false information and a bogus document.
The applicant actively engaged in the fraud and was proactive in the dealings with [Mr C].
The applicant says he is remorseful but in the same submissions filed states that he was manipulated by [Mr C] and was given bad advice.
The Tribunal finds that the applicant was knowingly a party to the fraud to present himself to the Department as being eligible to be granted a Skilled (Independent) (subclass 189) visa to which he was not entitled. He willingly participated in organised immigration fraud, undermining the integrity of the Skilled Visa programme.
The Tribunal places a lot of weight on those facts in favour of cancelling the visa.
· the present circumstances of the visa holder
The applicant has been living in Pakistan with his parents since July 2023.
He does not own any property in Australia. He has not provided evidence of strong financial ties in Australia.
The applicant stated at the hearing that he is living off his savings and he is living with his parents. He said that he cannot find a job but did not provide any evidence to support his claim. He said that he had $20,000 left in savings.
He said that he has lived in Australia for more than a decade and has built a life and a career. He did not submit evidence of a career as he was living in Pakistan at the time of the hearing.
He said he has applied for more than 50 jobs but did not provide evidence of his applications. The Tribunal accepts that the applicant may face some hardships since he may fail to obtain employment straight away and that he would miss his social network in Australia.
He says that he is lonely as he has no friends in Pakistan, but it is difficult for the Tribunal to make a finding in respect of that fac as he is surrounded by his family. He has five sisters who are living in Pakistan and are married.
The Tribunal places some weight on those facts in favour of not cancelling the visa.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal accepts that there is no adverse information relating to the applicant’s behaviour and that he has always complied with the Department’s requests. The Tribunal places some weight on those facts in favour of not cancelling the Visa.
· any other instances of non-compliance by the visa holder known to the Minister
There is no information of noncompliance on the applicant’s part and the Tribunal places weight on those facts in favour of not cancelling the visa.
· the time that has elapsed since the non-compliance
The non-compliance occurred when incorrect answers and a bogus document was provided in the combined online Skilled (Independent) (Subclass 189) visa application lodged on the 15 October 2019.
The noncompliance was also contained in a written statement on the 4 August 2020.
The period that has elapsed is not extensive as it was at least 3.5 years ago roughly.
The Tribunal places a little weight on this consideration in favour of not cancelling the visa.
Any breaches of law since the noncompliance and the seriousness of those breaches
There is no information before the Tribunal of any further information to indicate that the applicant has been charged with or convicted of any offences in Australia. The Tribunal places a little weight on those facts in favour of not cancelling the visa.
· any contribution made by the holder to the community.
The applicant submitted in writing that he worked as a Security officer during the lockdown and provided an annexure being a statement of service to regional NSW. The Tribunal has taken into consideration that the applicant continued to work for the community and moved to a regional area whilst living in Australia.
The Tribunal places some weight on those facts in favour of not cancelling the visa.
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.
There are no consequential cancellations under s.140.The Tribunal places no weight on that consideration as it does not apply.
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 are no children whose interests would be affected by the cancellation. The Tribunal places no weight on that consideration as it does not apply.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The cancellation would not lead to the applicant’s removal from Australia as he has been living in his home country since July 2023.He said that he had returned to his home country as his mother was very ill. He lives with his parents in Pakistan presently. 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.
The applicant would not become unlawful and be liable for detention as he is already living in Pakistan. He is presently living in Pakistan with his parents. He may have difficulty returning to Australia as he may be unable to meet PIC4013 in relation to applications for most types of temporary visas for a period of 3 years.
Considering the above the Tribunal places a little weight on those facts against the cancellation of the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
At the hearing the applicant indicated that he lives with his parents and has been able to provide for himself as he has savings that he is relying on. He said that he has had difficulty securing employment in Pakistan.
He did not provide evidence of his claims or any details of his present expenses. He did say that all his 5 siblings (sisters) are married and as he is the only son he is living with his father and mother.
In the delegate’s Decision he refers to the 6 letters attesting to the applicant’s character provided from six people in Australia. The letters were not provided to the Tribunal and the applicant did not seek to tender any evidence from any witnesses.

100. The fact that the applicant says he is unemployed is a matter that the Tribunal has taken into consideration. The Tribunal has considered the evidence provided at the hearing and in the submissions and has given this consideration a little weight against the cancellation of the visa.
CONCLUDING PARAGRAPHS
101. 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
102. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent 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 4715

19 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Natural Justice

Procedural Fairness

Judicial Review

Statutory Construction

Jurisdiction