Ajay Kumar (Migration)

Ajay Kumar (Migration) [2024] AATA 3383 (11 September 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ajay Kumar
REPRESENTATIVE:  Mr Komal Karkra (MARN: 1802544)
CASE NUMBER:  2304116
HOME AFFAIRS REFERENCE(S):          BCC2021/2547863
MEMBER:Penelope Hunter
DATE OF DECISION:  11 September 2024
DATE CORRIGENDUM
SIGNED:16 September 2024
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words: “The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa” at paragraph 70 should be replaced with: “The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa”.

Penelope Hunter
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ajay Kumar
REPRESENTATIVE:  Mr Komal Karkra (MARN: 1802544)
CASE NUMBER:  2304116
HOME AFFAIRS REFERENCE(S):          BCC2021/2547863
MEMBER:Penelope Hunter
DATE:11 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 11 September 2024 at 11:22am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in the visa application – previous visa application refused – previous visa application completed by family member – voluntary disclosure of the incorrect information – financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 111, 140
Migration Regulations 1994, Schedule 2, cl 500.212; rr 2.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant was found not to have complied with s 101(b) of the Act because he provided incorrect information with his visa application. 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 22 July 2024 to give evidence and present arguments. The applicant was represented in relation to the review, and his representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a 27 year old married male citizen of India. The applicant applied for a student visa on 13 October 2020, which was granted on 2 November 2020 and valid until March 2024, in order to undertake study in Australia.
The applicant arrived in Australia on 28 December 2021.
On 6 December 2022, the Department sent to the applicant a s 107 notice of intention to consider cancellation (NOICC) of his visa.
The applicant provided a response with the assistance of his agent to the Department on 18 December 2022.
On 20 March 2023, the delegate determined to cancel the applicant’s visa under s 109 of the Act.
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.
Did the notice comply with the requirements in s 107?
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 s 101 of the Act.
In their decision record, the delegate sets out the information particularised in the s 107 notice issued on 6 December 2022, which was relevantly:
i.On page 10 of the electronic student visa application form lodged by the applicant on 13 October 2020, under the heading visa history, he submitted the following answer (in bold)
Has the applicant, or any other person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?
No
1. Based on the above information and meeting all the other criteria the applicant was granted a student visa on 2 November 2020.
2. On 28 November 2021, the applicant arrived at Melbourne International Airport and was taken for questioning by Australian Boarder Force (ABF) officers. The applicant stated during this interview that he had previously applied for a student visa to the United Kingdom (UK) but was refused. When questioned why he did not declare this in his student visa application lodged on 13 October 2020 the applicant stated that a family member helped him apply for his visa but that he did not ask him whether he had previously applied for any other visa.
3. On 17 November 2022, the Department received confirmation that he was refused a visa on 23 September 2020.
In reply to the notice, submissions were provided by the representative of the applicant, accompanied by a statutory declaration of the applicant and a completed Form 1023 Notification of Incorrect Answers. The applicant and his representative did not dispute the alleged non-compliance with s 101 of the Act.
In his statutory declaration the applicant set out the following (in summary):
i.The applicant confirmed that he had a previous student visa refusal for the UK on 23 September 2020.
ii.It was an unintended error that he did not declare the visa refusal and he did not do so intentionally to obtain a favourable outcome, nor to influence the decision concerning the grant or refusal of his visa.
iii.The applicant had voluntarily informed ABF officers who interviewed him at Melbourne International Airport that he had previously been refused a visa in the UK.
iv.He was unaware that he had to declare that he had been refused a visa because a family member had filled out the via application and this family member was not aware that the applicant had been previously refused a visa.
The delegate considered in their decision record the submissions of the applicant. They also noted that in his visa application under the hearing Declarations, he answered ‘yes’ to Warning - Giving false or misleading information is a serious offence. Further, the applicant also declared that he had read and understood the information provided in the application, provided complete and correct information in every detail on the form, and on any attachments to it and understood that if documents were found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. The delegate found that the applicant did not comply with s 101(b) of the Act by providing an incorrect answer on his Student visa application form, therefor his visa was liable for cancellation under s 109 of the Act.
At the hearing, the Tribunal discussed with the applicant the non-compliance as described in the s 107 notice. The applicant acknowledged that the information on his visa application was not correct. He said that shortly before he made this visa application he had a student refused to the UK. He gave evidence consistent with his submissions to the Department that he was not aware that there was a question about visa refusals on the student visa application form for Australia. He identified that it was his cousin, Vikas, who had helped him apply for the visa and complete the visa application for him.
The Tribunal asked the applicant further questions about his visa application to the UK and he said that the application had been made by an agent in India. He said that he did not know the reasons why this visa was refused, the agent had not provided a reason. When asked why he did not use his agent in India again, the applicant claimed that his cousin had assured him that he knew how to successfully lodge an applications. His cousin filled out the application for the applicant because the applicant said that he did not know what to do. When asked whether he had checked the visa application before it was submitted, the applicant said that he did not. He said that his cousin was living somewhere else, they did not come together to review the documents. His UK visa had been refused a few weeks before and he did not mention it to his cousin and the applicant maintained that he was not asked any questions about visa refusals by his cousin.
The applicant further asserted at the hearing that the first time he became aware that there was a question about visa refusals in the application form was when he was detained for questioning by Australian Border Force officials when he arrived in Australia. He said that he was questions for about an hour on arrival and he freely disclosed this to them. After that, they let him go. They did not tell him whether there would be any consequences, they just said that someone would contact him in the future.
The Tribunal asked the applicant whether he took any steps to correct the visa application prior to the cancellation and the applicant replied that he did not. He told the Tribunal that he thought he had told Australian Border Force the correct information and as they told him that someone would contact him, so he was waiting to be contacted.
Following the hearing the applicant submitted to the Tribunal further documents including a letter dated 3 April 2024 from Valley International College, confirming that the applicant had met the requirement for the completion of the Advanced Diploma of Civil Construction Design, a Certificate of Completion of the Advanced Diploma of Civil Construction Design, and a copy of his academic transcript.
Consideration of Evidence
It is not in dispute that the applicant had been refused a student visa to the UK on 23 September 2020, and that when he submitted his student visa application form on 13 October 2020, the answer on page 10 of that visa application form that he had not previously been refused a visa was not consistent with this fact.
The applicant claims that it was an innocent mistake, however whether or not the applicant knew or did not know of the provision of incorrect information is not relevant because under s 98 of the Act, an applicant who does not fill in his application form is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. Additionally, under s 99 of the Act, any information that the applicant gave, provided or caused to be given or provided on his behalf, to an authorised system (the online application) is taken for the purposes of s.101(b) to be an answer to a question in the applicant’s application form. Further, s.100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
Even if the applicant’s cousin provided the information, because he was acting on behalf of the applicant, in accordance with the instructions of the applicant to prepare and lodge the visa application, the applicant is taken to have caused it to have been provided. The information is therefore incorrect even if the applicant did not know that it was incorrect. Further, s.101 of the Act puts the onus on the applicant to fill in or complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.
The Tribunal finds on the evidence before it that the answers in the student visa application form about the applicant never having been refused a visa is incorrect. It follows that there has been non-compliance by the applicant with s.101(b) of the Act 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, and the Tribunal has considered each of the circumstances a set out below.
In addition, while the circumstances set out in the Regulations 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.
The correct information
The correct information is that the applicant had previously and recently had a visa application refused to another country.
It is the evidence of the applicant that his cousin completed the application on his behalf. The applicant claimed that his cousin did not tell him that the question about previous via refusals was in the application. On the evidence the applicant gave his cousin complete authority to lodge the visa application on his behalf. He did not check the application before it was lodged. The applicant claimed he and his cousin were in separate locations when the visa application was being prepared and lodged. The Tribunal is of the view that the applicant was indifferent as to what was placed in his application.
The integrity of the migration program relies on, amongst other things, applicants providing correct information in visa application form and in their dealings with relevant Departments. Sections 98 to 100 of the Act reflect the seriousness of the provision of incorrect information even when there was no intention to provide incorrect information. Further, s 111 of the Act prescribes that non-compliance occurs whether it is deliberate or inadvertent.
The Tribunal gives this circumstance some weight in favour of the exercise of the Tribunal’s discretion to cancel the visa.
The content of the genuine document (if any)
In this particular matter there are no documents relevant to the incorrect information other than the visa application itself.
The Tribunal places no weight on this circumstance.
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 applicant’s migration history would have been relevant in the assessment of whether or not to grant to the applicant the visa. It is one of the criteria for consideration when assessing whether the applicant is a genuine temporary entrant pursuant to cl 500.212 of Schedule 2 to the Migration Regulation when assessing student visa applications.
As outlined above, the Tribunal accepts the evidence of the applicant that his cousin completed the visa application on his behalf. It is of the view that he was indifferent as to what was placed in the visa application form on his behalf.
The Tribunal considers that this circumstances weighs in favour of the exercise of the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The Tribunal has set out above the circumstances in which the non-compliance occurred. He applicant maintains hat he had no knowledge of the incorrect information provided in his visa application, as the application had been completed by his cousin, who was not aware that the applicant had been refused a UK student visa on 23 September 2020. The Tribunal notes the evidence of the applicant that he did not meet in person with his cousin in order to complete the application and they spoke just over the phone. The applicant did not review prior to submission in order to check or verify the information contained within. He said that his cousin did not speak to him about any questions and the answers, but rather assumed responses on his behalf. The applicant said that he did not know what to do to apply for a student visa to Australia and that he had relied entirely on his cousin. Given, that the applicant had already recently had a visa refused it is questionable why he did not exercise more care.
The Tribunal has also considered that when questioned by officers of Australian Border Force once arriving in Australia the applicant volunteered information about the visa cancellation. While the applicant may have been indifferent to the information provided on his behalf, this is consistent with his clams that he did not knowingly provide incorrect information.
The Tribunal considers that this circumstances has neutral weight in relation to the exercise of the discretion to cancel the visa.
The present circumstances of the visa holder
The Tribunal discussed with the applicant at the hearing his present circumstances. He told the Tribunal that he had intended to undertake a Bachelor of Agriculture. After he arrived he found out that if he studied something like carpentry he could go back to India and get a good job. He commenced a Certificate III in Carpentry with the intention of proceeding to a Graduate Diploma of Management.
The applicant told the Tribunal that when his visa was cancelled his education provider cancelled his enrolment. He said that it took him some time to find a new education provider willing to enrol him in studies while he was the holder of a bridging visa but he then managed to obtain enrolment in a Diploma of Civil Construction Design. He had recently completed the course in April 2024, he claimed that it will assist him in the professional career of a draftsman. The applicant has provided evidence of course completion to the Tribunal. He wished to return to the Certificate III in Carpentry, this was his true interest and it would build on his skills in civil construction. Presently the applicant said that he could not obtain an enrolment in his desired course while holding the bridging visa, and with a cancellation decision under review.
The applicant had been in Australia for approximately 12 months when the decision was made to cancel his visa. He had held enrolment in the Bachelor of Agribusiness for 8 months and then transferred to carpentry approximately 2 months before his visa was refused. The applicant claimed that he attended his Agribusiness course and paid all relevant fees.
The present situation is that the applicant has been unable to progress his intended studies in Australia due to his visa cancellation. The evidence is that he has continuously studied for the duration of what would have been the visa, but not entirely in his desired field. The applicant has spent considerable money on courses in Australia which may not lead him to his desired qualification and if the visa remains cancelled he will not be able to complete his intended studies.

As a consequence of the cancellation decision the applicant has incurred the cost of the tuition fees he originally paid for the Certificate III in Carpentry. The continued cancellation may impact on the applicant’s ability to work in his desired field and may affect his financial situation in the future. It is also accepted that the applicant will experience some emotional hardship if the visa remains cancelled as he has been unable to achieve his desired qualifications and the time he has spent in Australia has not resulted in the desired outcome.
The Tribunal gives this circumstances some weight in favour of the visa not being cancelled.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
On the material before the Tribunal it was the applicant who made the disclosure of the incorrect information in discussions with Australian Board Force. He has not disputed the incorrect information in response to the NOICC or before the Tribunal. He has honestly acknowledged the circumstances in which it occurred.
There is no evidence that the applicant has not subsequently complied with his visa obligations under the Act.
The Tribunal considers that this circumstance some weight in favour of the visa not being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the applicant known to the Tribunal.
The Tribunal considers that this circumstance neutral weight in relation to the exercise of the discretion to cancel the visa.
The time that has elapsed since the non-compliance
The non-compliance occurred at the time of the visa application on 13 October 2020, the incorrect information was disclosed by the applicant when he arrived in Australia on 28 December 2021. His intended studies and his arrival in Australia had been delayed by the COVID-19 pandemic. It was almost a further 12 months before the s 107 notice was issued to the applicant on 28 December 2022. Now almost 4 years had elapsed since the non- compliance, and the applicant has studied while awaiting review and demonstrated that he does intend to study in Australia.
The Tribunal gives this circumstances some weight against cancellation.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant told the Tribunal that he has not breached any Australian laws since his arrival and there is no information before the Tribunal to dispute this.
The Tribunal gives this circumstances some weight against cancellation.
Any contribution made by the holder to the community.
The applicant told the Tribunal that while working in Australia he had paid regular income tax.
The applicant has been granted the right to work in order to supplement the costs of his stay in Australia. While the Tribunal accepts that the applicant has paid tax on his earnings in Australia, this is a circumstance applicable to all workers in Australia. It is an ordinary contribution in exchange for this right to work, and the Tribunal places no weight on this circumstance.
Whether there would be any consequential cancellations under s.140
There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant will continue to hold a bridging visa for a brief period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. There is no restriction on which visa he can apply for once he leaves Australia. These are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of India. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked if he had any concerns about returning to his home country, he identified only that he had not completed his desired studies and would have to start again from scratch if he returned to India.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight in favour of cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant further submitted to the Tribunal that he was a genuine student, he had travelled to Australia to study. He wished to have his visa returned so that he can complete his studies and build skills and then go back to India to build his career. If the visa remained cancelled his claimed that his future would be spoilt. He has spent over $25,000 on studies in Australia to date and has not had the opportunity to complete the studies he desires in carpentry.
Conclusion
Having carefully considered the applicant’s circumstances individually and cumulatively, this matter is finely balanced. Overall, the Tribunal is satisfied that there are aspects that are significantly favourable to the applicant as outlined above, including that the Tribunal accepts that the applicant did not deliberately intend to provide misleading information in the visa application, that he has continued to study despite the cancellation to the best of his ability, the time that has elapsed and that there is no information of further breaches by the applicant.
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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Penelope Hunter
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.
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.

[2024] AATA 3383

11 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice