Alexandre Dos Santos Bernardo (Migration)

Alexandre Dos Santos Bernardo (Migration) [2022] AATA 390 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Silvana Alexandre Dos Santos Bernardo
CASE NUMBER:  2109395
HOME AFFAIRS REFERENCE(S):          BCC2019/6201781
MEMBER:James Silva
DATE:18 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 18 February 2022 at 5:37pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – incorrect answers given in previous visa applications – previous visa, entry and overstay and other name known by not declared – ‘visited any countries’ understood to mean ‘other than Australia’ – three-year exclusion now passed – Portuguese name formats, with two given names and both parents’ surnames – variety of formats in common use – non-compliance regarding visa conceded – no satisfaction of non-compliance regarding name – application for partner visa in progress – relationship ceased and claim of family violence – Bridging A visa held in association with that application – legal consequences of cancellation of current visa – anonymous allegation not relevant to decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 100, 101(b), 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 820.221(3)(b)
CASE
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 020 (Bridging B) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Brazil, born in March 1977.
She was granted a Bridging B visa on 21 June 2019. On 18 June 2021, the delegate issued a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s.109 of the Act. The applicant responded to the NOICC on 1 July 2021. On 22 July 2021, the delegate decided to cancel the visa. The applicant seeks review of the decision.
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 16 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese (Brazilian and English languages. The applicant is unrepresented in this matter. She did not provide any supporting documents or request the Tribunal to take evidence from witnesses.
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.
Non-disclosure certificate
Department file BCC2019/6201781 includes a certificate under s.375A stating that certain information on the file must not be disclosed to the applicant or any other person (other than a member of the AAT), as it would be contrary to the public interest. It stated that disclosure would reveal ‘lawful methods for preventing, detection and investigating breaches of evasions of the law which would be likely to prejudice the effectiveness of those methods’.
On 1 February 2022, the Tribunal wrote to the applicant to advise her of the existence of the certificate, and its view that the certificate identified a valid public interest. It explained the gist of the information, namely an anonymous allegation in August 2019 that she had engaged in unlawful conduct, and details of the investigations that were undertaken. The Tribunal explained that neither the allegation nor the investigations are relevant to the review application, except insofar as the investigations had led officials to learn about the incorrect information that the applicant had provided in her tourist visa application and student visa application.
At hearing, the applicant indicated that she was nonplussed about the allegations of unlawful conduct, and wished to know what these were. She did not comment substantively on the validity of the non-disclosure certificate. For the reasons stated above, the Tribunal finds that the anonymous allegation and investigations are not relevant to this decision (except as background to the incorrect information having come to light).
Did the notice comply with the requirements in s.107?
The applicant, who is unrepresented, has raised no questions as to whether the NOICC complied with s.107. However, the Tribunal considers it appropriate to address this, for completeness, and because it provides context for this decision.
The notice[1] identified s.101(b) as the relevant provision. This states that ‘a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided’.
[1] The delegate’s decision record of 22 July 2021 sets out the information that formed the basis for the cancellation, and the procedural steps. The applicant submitted to the Tribunal a copy of the decision. She has raised no questions about the validity of the notice.
The notice set out relevant information that the applicant provided in May 2017 and October 2017, and information from other sources:
§ In a tourist visa application lodged on 13 May 2017, which resulted in the grant of a tourist visa in May 2017, she stated:
-   Given name: Silvana; Family name: Alexandre Dos Santos Bernardo; She had not been known by any other names or spellings.
-   She had not previously travelled to Australia or applied for a visa.
-   She had not overstayed a visa in any country, including Australia.
-   She had not held a visa to Australia or any other country.
-   She had not ever been in Australia or any other country and not complied with visa conditions or departed ‘outside their authorised period of stay’ (i.e. overstayed’.
-   She had read and understood the information in the application; had provided complete and correct information; and understood that visa cancellation may follow if there was any fraudulent documents or incorrect information.
§ In a student visa application lodged on 4 October 2017, which resulted in the grant of a student visa in December 2017, she stated[2]:
[2] The information provided on the application form was essentially the same, except that the student visa application form specifically asks whether the applicant has visited any countries ‘in the past 10 years’.
-   Given name: Silvana; Family name: Alexandre Dos Santos Bernardo; She had not been known by any other names or spellings.
-   She had not previously held a visa to Australia (or any other country).
-   She had not ever been in Australia (or any other country) and not complied with visa conditions or departed ‘outside their authorised period of stay’ (i.e. overstayed’.
-   She had not overstayed a visa in any country, including Australia.
-   She had read and understood the information in the application; had provided complete and correct information; and understood that visa cancellation may follow if there was any fraudulent documents or incorrect information.
§ According to Department records (as reflected in the delegate’s decision record, which the applicant provided to the Tribunal):
-   She first entered Australia under the full name: Given names: Silvana Alexandre Dos Santos; Family name: Bernardo.
-   She first arrived on 29 July 2007 on a tourist visa, which ceased on 29 September 2007. She remained in Australia after the expiry of the visa. On 18 May 2011, she was granted a bridging visa; and she departed Australia on 31 May 2011.
The notice gave particulars of five pieces of incorrect information given in the May 2017 tourist visa application and the October 2017 student application:
§ That she is not currently or had ever been ‘known by any other names’.
§ She incorrectly answered ‘No’ to the questions: ‘Has this applicant previously travelled to Australia or previously applied for a visa?’ (tourist visa application); and ‘Have any of the applicants visited any countries in the past 10 years?’ and ‘Has the applicant held or does the applicant currently hold a visa to Australia or any other country?’ (student visa application).
§ In relation to visa overstays, that she incorrectly answered ‘No’ to the question: ‘Has any applicant ever overstayed a visa in any country (including Australia)?’ (both applications).
§ In relation to visa non-compliance, that she incorrectly answered ‘No’ to the question: ‘Has the applicant ever been in Australia or any other country and not complied with visa conditions or departed outside their authorised period of stay?’ (both applications).
§ That on the application forms, under ‘Declarations’ she incorrectly agreed that she had provided ‘complete and correct information in every detain on the form and on any attachment to it’.
In relation to each particular, the notice records that the applicant appeared to have given incorrect information. The delegate stated, in relation to both the May 2017 and October 2017 applications ‘I consider that you have provided incorrect information [in the following manner]’, and ‘I consider you did not comply with section 101(b) of the Act. The delegate’s decision record includes these formulae. 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 Tribunal must now determine 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(b), which states: ‘A non-citizen must fill in or complete his or her application form in such as way that no incorrect answers are given’.
In her response to the NOICC of 1 July 2021, the applicant made three key points:
§ She contends that she did not provide incorrect information in relation to being known by any other names. ‘The names are the same. The only difference lies in which parts of the name are considered to be the given name, and which form part of the family name.’
§ In relation to the question on the student visa application ‘Have any of the applicants visited any countries in the past 10 years’, the applicant contends that a fair reading of this would take it to mean any countries other than Australia. On this construction, she had not provided an incorrect answer.
§ The applicant accepted that she had provided incorrect answers to the other questions.
The response claimed that a travel agent in Brazil lodged the tourist visa application in May 2017; and a migration agent in Australia lodged the student visa application in October 2017. The applicant noted that she does not have a copy of the relevant applications but was prepared to accept the contents as described in the NOICC.
Non-compliance: Incorrect information about migration history: The Tribunal finds that the applicant provided incorrect information in relation to her migration history. Whether or not she knew this information to be incorrect is immaterial for the purposes of Subdivision C: s.100.
Non-compliance: Incorrect information about name: The situation regarding her name is more complex. The Tribunal notes that Brazil applies Portuguese naming patterns, in which most people have two ‘surnames’, the mother’s paternal and the father’s paternal surname.[3] At hearing, the applicant commented that Brazilian practice does not clearly identify a single surname.
[3] SBS Cultural Atlas: Brazilian Culture:
The information before the Tribunal suggests that Brazilian names sometimes appear in full, whereby the distinction between the (usually two) given names and the surnames is generally understood. Where the given names and surnames are recorded separately, there appears to be some variation in practice, i.e. identifying only the father’s paternal surname, or both.
The applicant’s Brazilian passport has yet a different variation. It records only one given name, Silvana; the ‘surname’ is a compound of her second given name and the two surnames. In the visitor visa and student visa application forms, the applicant recorded her names (that is, ‘family name’ and ‘give names’) as they appear in her current Brazilian passport.
The Tribunal shares the delegate’s concerns that, against the backdrop of incorrect information about her migration history, the applicant may have rearranged her name (including in her Brazilian passport) and provided answers on her visitor visa and student visa application forms, with a view to obscuring her migration history. However, the Tribunal is unable to reach a firm conclusion on this, and it is not satisfied that she provided incorrect information when stating that she that she was not currently, or ever, known by any other names.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice, in relation to the applicant’s migration history, but not in relation to her names.
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).
Consideration of prescribed circumstances
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 r.2.41 of the Regulations, and addressed in the following paragraphs.
The correct information
Travel and visa history: The correct information is that the applicant visited Australia as a tourist in July 2007 and did not depart after the expiry of the visa in September 2007. She remained here unlawfully from September 2007 until May 2011, a period of some three years and eight months.
In her tourist visa application of May 2017 and her student visa application of October 2017, she gave false information about her travel and visa history (prior travel and visas, overstays and compliance with visa conditions).
As the Tribunal is not satisfied that there was non-compliance in relation to the applicant’s names, this is not a relevant consideration.
The incorrect information relates to key aspects of the applicant’s migration history, and hence her eligibility for the grant of visas. The Tribunal weighs this factor heavily in favour of cancelling the visa.
The content of the genuine document (if any)
As there is no genuine document in this case, this factor is not relevant.
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 Tribunal considers that the decisions to grant the tourist visa and student visa in 2017 were based in large part on the incorrect information. The criteria for the grant of the tourist visa include that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa. The incorrect information meant that the applicant concealed her visa overstay from 2007 to 2011. This was a significant factor in the visa grant. Similarly, the criteria for the grant of the student visa included that she genuinely intended to stay in Australia temporarily and to comply with visa conditions. The Tribunal is satisfied that this visa grant, too, was based in part on the incorrect information about the applicant’s visa history.
The Tribunal weighs this factor heavily in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
In a statutory declaration dated 23 February 2021, the applicant addressed the circumstances of the non-compliance. Her (then) representative’s submission made some supplementary points.
§ The applicant wrote that she overstayed her visa in 2007, as she had settled in Australia and could not afford to make another visa application. She states that she regrets the decision to do so. (The Tribunal notes that the circumstances of the applicant’s visa overstay are not relevant to the visa cancellation. Rather, the issue is the circumstances of the non-compliance, i.e. the provision of incorrect information in the visa applications of May 2017 and October 2017.)
§ The (former) representative wrote that the applicant relied on agents to complete the visa application forms; that she was unaware that the applications contained incorrect answers; and that she did not intend to provide incorrect answers.
At hearing, the applicant reiterated that a travel agent in Brazil lodged the visitor visa application in May 2017, and a migration agent in Australia lodged the student visa application on her behalf in October 2017. They were focused on her passport details and funds availability, rather than other matters. The applicant did not complete the form herself.
In response to questions, she said that she did not alert these agents to her migration history in Australia. She realised that she was subject to a three-year exclusion following her departure from Australia in 2011. However, she did not think that this would be relevant to future visa applications. She acknowledged that, in retrospect, this had been reckless. She added that, in any event, she had assumed that Australian immigration officials would be able to see her migration history from electronic records.
The Tribunal finds it difficult to believe that the applicant failed to alert her agents of her migration history in Australia; or that on two separate occasions, agents (one in Brazil and one in Australia) proceeded without checking that she had not visited Australia previously, or held a visa, or breached visa conditions. The Tribunal is also not satisfied that the applicant assumed that there was no need for her to declare her migration history, either: (a) because the visa overstay was only relevant in relation to the three-year exclusion period, and not future applications; and/or (b) because Department officials could, in any event, check their records.
The Tribunal considers the applicant’s evidence as to her knowledge of, or involvement in, the non-compliance to be unreliable. It finds that the non-compliance occurred with the applicant’s knowledge and consent. The Tribunal places considerable weight on this factor in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant and her former representative explained that she has an ongoing application for a partner visa. The critical details are:
§ She lodged a partner visa application in July 2018. In September 2020, the sponsor informed the Department that the relationship had ended. The applicant has submitted to the Department evidence which, if accepted, would show that she has suffered family violence within the meaning of clause 820.221(3)(b). This application is ongoing.
§ The applicant currently holds a Bridging A visa, granted on 8 October 2021, in association with the partner visa application.

The applicant confirmed at hearing that the partner visa application is ongoing; she had submitted a range of supporting evidence relating to the claimed family violence, but has not yet been interviewed.
The applicant claims to be working in paid employment, as a cleaner. She said at hearing that she and her ex-husband had worked through a cleaning company. She now works for a number of private and business clients. The Tribunal notes that she has provided letters of support from these persons. It accepts that she has been working.
At hearing, the applicant said that she had enrolled the previous week in an aged care certificate training course, and started her studies the day before the hearing.
The applicant’s 24 year old daughter is studying English in Australia, and plans to start a childcare course in April 2022. The applicant shares accommodation and expenses with her daughter; and provides companionship. At hearing, she said that she supports her daughter financially, although she had hoped that her daughter would become more self-sufficient. The applicant also has two sons in Brazil, a 25 year old who is married and working; and a 23 year old who is studying, and to whom she sometimes sends money
The Tribunal accepts that, since her most recent arrival in Australia, in August 2017, the applicant has worked, established some social contacts and set up a household with her daughter. It also takes into account her ongoing application for a partner visa. It gives these factors moderate weight against 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 non-compliance occurred in May 2017 and October 2017. Section 105(1) requires that a non-citizen must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’ The Tribunal notes that, through her representative’s reply to the NOICC on 1 July 2021, the applicant acknowledged that she had provided incorrect information in relation to her migration history. The Tribunal places this factors slight weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Tribunal
As noted in the decision record, the applicant applied for a partner visa on 8 July 2018. On the application form, she stated that she had never overstayed a visa in any country (including Australia).
At hearing, the applicant said that she had filled the form out herself, and could not recall the precise questions or her answers. She thought that the question about her migration history had related to the previous ten years, rather than earlier. She went on to stay that she did not fully understand all the questions, and thought that she might also have given some other incorrect information on the form.
The Tribunal takes into account that, as of July 2018, the incorrect information related to a visa overstay that had occurred some seven years earlier (not ten years, as the applicant suggested). While the applicant had previously claimed that agents had completed the visitor visa and student visa application forms on her behalf in 2017, she stated that she completed the partner visa application herself. In the Tribunal’s view, this is a further instance of non-compliance with s.101(b).
The Tribunal places slight weight on this factor in favour of cancelling the visa.
The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred in May 2017 and October 2017, i.e. more than four years ago.
Given the passage of time, and the applicant’s personal and financial ties in Australia, the Tribunal places moderate weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known instances of the applicant breaching the law. This is a minimum expectation of all visa applicants and holders, so the Tribunal places very little weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant claims to have made a contribution to the community, through her work as a self-employed cleaner since April 2018. She provided seven letters from support, six from householders and one from a business. She said that the payments are made through her bank account, and she pays taxes. Due to the transition from the cleaning company that she and her ex-husband ran, to self-employment, her tax agent had not yet arranged an individual tax return. In the course of seeking a fee reduction in relation to the review application, the applicant provided the Tribunal with copies of bank statements from June to August 2021. These are consistent with these claims.
The applicant also claims to provide support for her daughter, an international student undertaking English studies and who plans to start childcare studies.
The applicant stated that she enrolled in an aged care certificate course in the week preceding the hearing, and had attended her first class the previous day. She described it as her dream to work in nursing homes. The applicant did not provide evidence of her enrolment, or insights as to why she had only started her studies recently. The Tribunal accepts that she recently started a course, but is not satisfied on the limited available evidence that she has a firm commitment to the course or future work in that sector. Furthermore, while the aged care sector is a national priority and one in which there are staff shortages, the Tribunal is required to consider the applicant’s past and present contributions to the community, rather than her potential.[4]
[4] MIAC v Khadgi (2010) 190 FCR 248 at [120]
The Tribunal accepts that the applicant’s work for various clients, her participation in the Australian economy and her community ties are a form of contribution to the community. It places some weight on this consideration against cancelling the visa.
Other relevant circumstances
While the factors set in r.2.41 out 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 persons who would be affected by consequential cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
In the present case, the cancellation of the visa will not result in the applicant being removed from or having to depart Australia. She has an ongoing application for a substantive visa (partner visa application of July 2018). She holds a Bridging A visa and would be permitted to remain in Australia until the partner visa application is finally determined. The question of her removal therefore does not arise. The Tribunal also notes that, in the response to the NOICC, the applicant’s representative referred to the applicant’s home city of Caruaru as a poor place, with high unemployment. As discussed at hearing, general economic conditions or employment prospects do not of themselves invoke Australia’s non-refoulement obligations.
The applicant has not identified any family members or children who would be affected by his removal.
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 currently holds a Bridging A visa, issued in association with her ongoing partner visa application. The cancellation of the Bridging B visa would therefore not result in her becoming an unlawful non-citizen and liable to be detained under s.189. The applicant would in normal circumstances continue to hold a Bridging A visa until such time as her partner visa application is finally determined.
Ad mandatory legal consequence of the Bridging B visa cancellation is that the applicant would be subject to Public Interest Criterion 4013, which would mean that she cannot be granted certain visas within three years of the visa cancellation date (i.e. until July 2024), except in certain circumstances. Section 48 would also restrict her options for making further applications while still in Australia.
The available evidence suggests that the mandatory legal consequences of cancellation would only affect the applicant if her partner visa application was finally determined, unsuccessfully, and if she were to explore other options of remaining in Australia. This could affect any future student visa applications, for instance. However, any such impact is tentative, and the timing uncertain. The Tribunal therefore places minimum weight on this against 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 Bridging B visa is the only bridging visa which permits a holder to depart and re-enter Australia. The applicant has not claimed, and there is nothing to suggest, that she has current or imminent plans to depart and re-enter Australia. As the applicant currently holds a Bridging A visa, the Bridging B visa cancellation does not appear to have any immediate adverse consequences.
As noted above, the applicant has given evidence that she lives with and provides some support to her 24-year old daughter in Sydney, who is studying English and will then proceed to study childcare. As the visa cancellation does not affect the applicant’s continued stay in Australia while the partner visa application is being processed, there is no immediate prospect of the applicant being required to depart Australia, or any consequent disruption to her daughter’s living arrangements or studies.
At hearing, the applicant expressed her concern that a visa cancellation would be a negative in her migration history record and potentially close off future options. For the reasons stated above, the applicant’s visa overstay and subsequent non-compliance (the provision of incorrect information) already establish an adverse migration history. The Bridging B visa cancellation may add slightly to this adverse profile, but this is a limited and intended consequent of non-compliance.
The Tribunal accords these factors minimum weight against cancelling the visa.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation. It has had regard to the applicant’s written response to the NOICC, her (then) representative’s submission and her oral evidence; her circumstances; and the prescribed circumstances set out in reg. 2.41, and other relevant matters. It has decided to place greater weight on the significance of the non-compliance; and the applicant’s subsequent conduct. It has taken into account the passage of time, and the applicant’s current working and living conditions. However, as she currently holds a Bridging A visa, the Bridging B visa cancellation will cause minimum hardship. It is an intended and proportionate consequence of her non-compliance.
After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal is of the view that the visa should be cancelled.
Conclusion
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 020 (Bridging B) visa.
James Silva
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.

[2022] AATA 390

18 February 2022

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